Robotic Surgery Malpractice: da Vinci Surgical System

There is a new type of medical malpractice case that has started to hit the courts.  Due to the recent upswing in robotic-assisted surgery, we are seeing more and more lawsuits over serious injuries caused by da Vinci robotic surgeries.  The da Vinci is a futuristic piece of technology that some hospitals are pushing on their doctors.  The manufacturer, Intuitive Surgical, touts the device as a surgical tool for smaller incisions and quicker recovery times.  Unfortunately, there are problems.

The first problem is the technology itself.  Evidence collected so far indicates that there may be problems with the design or manufacture of the robot.  During some surgeries, patients have been seriously burned by electrical current that jumped from the machine to the patient.  In one case, a young woman who was scheduled for what should have been a routine hysterectomy had burns to her intestines and an artery, and she died within two weeks of the surgery.  Other cases have seen broken surgical blades.

The second problem is training–this is a sophisticated piece of equipment.  To doctors using it, it may feel like a video game, but the equipment and software are complex.  This is not like learning to pass eight levels of Super Mario Bros.  Hospitals are anxious for their doctors to use the equipment so that they can advertise their cutting-edge technological expertise.  The manufacturer provides a small degree of training, but in light of the number of mistakes made by doctors during surgery, that training is clearly insufficient.

The da Vinci is used for any number of surgeries–most often hysterectomies, bladder surgeries and throat surgeries.  Though cases are being filed, these are untested waters.  Lawyers and clients must decide whether to bring a product defect case against the manufacturer (for failure to warn, design defect, or manufacturing defect), or a medical malpractice case against the surgeon or hospital, or both.  Expert testimony in each type of case (product liability and medical malpractice) is extensive.  To do both at the same will require experts in the underlying surgery, and perhaps others like computer programmers,software engineers and mechanical engineers.

Nursing Home Malpractice: Pressure Sores

It’s clear to everyone that pressure ulcers, also known as bed sores, are painful, dangerous and can even be deadly.  These are the most common type of nursing home and assisted living negligence case.  Frequently, patients who are immobile (whether because of physical or mental injuries), are allowed to sit or stay in one position for too long.  If the body doesn’t move regularly, blood doesn’t flow properly, and injuries develop to the skin surface.  Left untreated, those minor injuries grow and deepen, sometimes becoming infected down to the bone and causing necrotic tissue.  

It is likely impossible to completely prevent bedsores.  The negligence in nursing home cases is typically focused on failure to identify and treat pressure ulcers before they get to a dangerous point.  Without proper treatment, patients must be hospitalized and undergo painful cleaning and tissue removal.  In the worst cases, patients die because of infection.  

The Journal of the American Geriatrics Society reports in its September 2012 issue (Hospital-Acquired Pressure Ulcers: Results from the National Medicare Patient Safety Monitoring System Study) that they have found a correlation between bedsores and patient mortality.  Evaluating 51,000 Medicare patients from 2006 and 2007, the authors discovered that hospital patients who develop bedsores are more likely to die, to be readmitted to the hospital within 30 days, and to have longer hospital stays.  The key, of course, is prevention and early treatment.  Evaluating patients who had bedsores, they found that the most common locations are the tailbone or sacrum, followed by the hip, buttocks and heels.

How to Prevent and Identify Bedsores

• Bedridden patients should be checked from head-to-toe every day
• Particular care should be taken to check the tailbone, hip, buttocks and heels
• Patients should change position at least every two hours
• Proper nutrition should be followed (it helps to prevent pressure ulcers in nursing homes and hospitals)
• Skin should be clean and dry, particularly for those patients who are incontinent

Contact a Baltimore Nursing Home Lawyer

If you or a loved one has developed pressure ulcers in a hospital stay or at a nursing home, contact our nursing home abuse lawyers at 443.850.4426, or send an online confidential request for information.  We can order your medical records, have them reviewed by an expert, and determine whether you have a nursing home lawsuit.  

Fallout from Maryland Medical Malpractice Verdicts

There have been two recent medical malpractice verdicts in Maryland—the first, in Baltimore City, was a birth injury malpractice against Johns Hopkins Hospital that yielded a jury verdict of $55 million.  The second was earlier this week, where a Baltimore City jury found that a child born with cerebral palsy at Harbor Hospital was deserving of $21 million. 

Maryland Medical Malpractice Caps

The verdicts themselves are somewhat misleading.  Like the news reporting that a lawyer has filed a ten million dollar case, the actual number is almost meaningless.  High figures are often used by lawyers to ensure that any actual verdict comes in below that number.  If the judge or jury returns a verdict in excess of what the plaintiff asked for, there could be complications to collecting the entire amount. 

For medical malpractice and other personal injury verdicts, the numbers are important only to enhance the “street cred” of the lawyers.  The victims will never recover such high amounts, because Maryland is one of the states that have a cap on non-economic damages.  This means that the family is entitled to money for clear-cut damages, like past and future medical bills, lost wages, and adaptive equipment.  But money for pain, suffering, mental anguish, humiliation, inconvenience, disfigurement and other “fuzzy” damages is strictly limited.  The jury doesn’t know it, but after the verdict the judge will cut whatever number they give.  For the $55 million Johns Hopkins medical malpractice case, the final number is closer to $29.6 million.  That is because the jury believed that the child’s injury came to a cost of $26 million in non-economic damages, but Maryland law cuts that figure to $665,000 (based on the date of the malpractice). 

The Medical Community:  Will It React?

The usual responses to medical malpractice verdicts include:

• There will be more medical malpractice cases filed
• The cost of medical malpractice insurance will increase
• The increased cost of medical malpractice insurance will be passed along to patients
• Doctors will stop practicing in high-risk specialties because of the fear of lawsuits

But, according to a recent Baltimore Sun article, even the American Medical Association and the American Tort Reform Association acknowledge that there is no data to show that doctors leave the practice.  Instead, they cite “anecdotal evidence.” 

Research even shows that medical malpractice payments tend to go down, and that such payments represent only a fraction of the cost of the health care system (See Public Citizen). 

The response from the medical community should be preventative—they should pledge that these injuries will not happen; that they will work harder to train their doctors and nurses; and that they will institute safeguards to prevent families from suffering.  Birth injuries are terrible and costly.  If doctors and their insurance companies don’t pay for them, then taxpayers will.  Children with birth injuries will often require medical assistance, and will often be on social security. 

Birth Center and Midwife Lawsuits

In late June, a medical malpractice trial against Johns Hopkins was decided by a jury to the tune of $55 million dollars.  Because of Maryland law limiting what are called “non-economic damages” (pain, suffering, mental anguish, inconvenience, disfigurement, incapacity, etc…), that verdict will be cut by more than half, to $29.6 million. 

That was a case about a birth injury.  The allegations, simply stated, were that Johns Hopkins was negligent in treating a woman who presented in labor.  Her child was not timely delivered, and should have been delivered earlier by emergency cesarean section.  Because of the delay, the child was deprived of oxygen, and suffered brain damage. Because of that delay, the child now has irreversible brain injury and will suffer developmental delays. 

Part of the backstory behind Hopkins’ failures was the failure of a midwife named Evelyn Muhlhan.  Hopkins tried to blame Ms. Muhlhan for the babies injuries, arguing that Muhlhan was negligent when the mother tried the home birth option, well before Muhlhan handed them off to an ambulance to go to Hopkins.  Indeed, the evidence seems clear that Muhlhan was negligent.  This is a laundry list of the things she did wrong:

• Failed to keep proper records
• Failed to treat the mother’s infection
• Failed to give proper informed consent to the mother about the risks of failing to treat the infection
• Inappropriately applied pressure to the mother’s belly to spur delivery
• Improperly administered a drug to stimulate labor.
• Failed to have a collaborative agreement with a physician, contrary to Maryland law. 

That evidence was excluded by the judge, because any negligence by the midwife was irrelevant to deciding whether Hopkins was negligent.  The jury may have had evidence to determine whether the baby was injured before arriving at the hospital, but the jury need not decide the cause of any supposed prior injury.  And here, after hearing the evidence, the jury decided that the injury was caused by Hopkins, in the last few minutes before delivery. 

Muhlhan, like midwifery generally, is one of those polarizing forces.  You love her or you hate her.  Muhlhan has rabid fans—because of the Hopkins incident, in conjunction with other deviations from the standard of care (including one death during a birth, and three other situations), a website has been created to help her contest the suspension of her certified nurse midwife license and her registered nurse license.  By some accounts (here and here), Ms. Muhlhan has left a path of destruction in her years as a midwife. 

Expectant parents who want a midwife-led or homebirth should have it, if it is safe.  Those parents depend on their doctors and midwives to let them know if it can be done safely.  If the birth is high risk, or if there are problems, then the birth should be done in a hospital with access to emergency equipment.  The birth process is important, but the most important thing is the health of the baby. 

Contact Us

If your baby was injured during a hospital or midwife delivery, contact our birth injury lawyers at 443.850.4426, or online for a no-charge consultation.  We can help you find out whether your doctors or midwives acted appropriately, or whether they caused your child’s injury.  For more information, see our Birth Injury Malpractice page. 

D.C. and Maryland Medical Malpractice Trials

There have been some recent medical malpractice trials in Maryland and D.C. over the past few weeks.  For anyone who is counting, the scorecard is four plaintiff victories and three plaintiff losses.  Looking a little deeper into what that means, consider that most medical malpractice cases which are strong for the plaintiff side tend to settle before trial.  The ones that go to trial are the ones where there the two sides either cannot agree on a medical malpractice settlement, or where the plaintiff has an uphill battle for some reason.  Statistically, I’ve read that about 70-75% of medical malpractice trials are defense verdicts.  So, we’re doing pretty good.  Here are some details:

Plaintiff trial victories:

• D.C. Superior Court:  $5.36 million jury verdict.  Failure to diagnose colorectal cancer.  The doctor’s patient died because of the failure to diagnose.  The defendant doctor, a family practice physician, never offered colorectal cancer screening to his patient in ten years. 
• U.S. District Court for Maryland (Baltimore):  $1.53 million jury verdict.  Failure to timely diagnose flesh-eating bacteria that caused a man significant genital injury.  Because of the Maryland cap on noneconomic damages, the verdict will likely be reduced to approximately $780,000.  Judge Paul Grimm. 
• Montgomery County Circuit Court:  $691,000 jury verdict.  Failure to timely diagnose and treat lung cancer in an 81 year-old woman.    Judge Ronald Rubin.
• Prince George’s County Circuit Court:  $20.9 million jury verdict for a shoulder dystocia injury.  Because of the Maryland cap on non-economic damages, the verdict will likely be reduced to about $1.53 million.  Judge Toni E. Clarke. 

Plaintiff trial losses:

• Baltimore County Circuit Court:  Defense verdict.  Loss of oxygen to the brain caused by complications from a laparoscopic cholecystectomy.  Judge Michael J. Finifter. 
• Carroll County Circuit Court:  Defense verdict.  Death caused by squamous cell cancer. 
• D.C. Superior Court:  Defense verdict.  Dental malpractice case. 

Still at trial:   

• Baltimore City Circuit Court:  Birth injury case against Johns Hopkins; life care plan of over $23 million.  Jury deliberating since June 20.  Judge Marcus Shar. 

Trial coming up:

• Frederick County Circuit Court:  MedMal trial starting June 25, 2012.  Judge William R. Niklas.