There have been some interesting developments in the da Vinci Surgical Robot litigation.
da Vinci Class Action Lawsuit Update
We reported last year on the efforts of some plaintiffs’ lawyers to combine existing and future da Vinci lawsuits into a type of class action lawsuit known as an MDL. An MDL groups similar cases together in federal courts for convenience and efficiency. Those cases would be handled by one judge and would have consistent general discovery, but would then have individual trials unless there was some sort of global da Vinci settlement. Well, the petition for MDL-2381, In Re: Intuitive Surgical, Inc., Da Vinci Robotic Surgical System Products Liability Litigation was denied on August 3, 2012. The original petition included four cases spread out over four states. The JPML denied the petition we think correctly, noting that the cases were “straightforward personal injury or wrongful death actions.” Essentially, there were very few cases, and those cases would rely on largely unique and individual facts that were better suited to a standard and stand-alone lawsuit. The plaintiffs would have had a better chance (though not a great chance) if they had argued for consolidation of specific subsets of injuries—for example, hysterectomies. However, the reports thus far indicate that there are several different causes of injury, even for hysterectomy procedures. This was the right decision.
NBC recently aired a report featuring the stories of many victims of the da Vinci. Click here for the eye-opening broadcast.
Intuitive Surgical Wins the First Trial
The maker of the da Vinci robot won the first reported trial. Filed in Washington state, the plaintiffs argued that Intuitive negligently trained a doctor who used the robot to perform a prostatectomy (removal of the prostate gland). The surgery caused kidney failure, brain damage, and eventual death. However, the device’s manufacturer was able to successfully argue at the five-week trial that the doctor was solely at fault. Though unsuccessful against the manufacturer, the case settled against the doctor before trial.
This case was somewhat unique—it relied almost exclusively on a failure to properly train claim. Other da Vinci cases include claims of mechanical defect, which put them in a separate category from this defense verdict.
There are about 26 other filed da Vinci product liability lawsuits.
Intuitive Surgical Acknowledges Product Defects
The manufacturer recently sent out notification of potential problems with some parts of the da Vinci robot. In May 2013, it notified doctors and hospitals that the curved scissors attachment may develop undetectable micro-cracks which could result in patient burns. Now, they aren’t directly admitting that these cracks caused any injuries, but there are lawsuits and reports of patient burns.
These lawsuits are only going to gain in momentum: there were about 400,000 procedures last year, and the FDA has a log of about 200 potentially problematic surgeries since 2007. Each lawyer will have to decide whether to file them as straightforward medical malpractice cases (arguing that the doctor or hospital was at fault), product liability cases (arguing that the device was negligently designed, or manufactured, or that there were ineffective warnings and training), or both. Right now, Intuitive Surgical has entered into tolling agreements with several victims while they determine whether they can settle those cases. A tolling agreement is basically a pledge to extend the deadline to file a lawsuit.
Do you have a da Vinci injury?
Our firm believes that the da Vinci has some dangerous defects, and that the doctors who use them are being pressured by hospitals and Intuitive Surgical to operate on patients with an inadequate amount of training. Some reports indicate that the devices may not even be cost effective, and may have just as many complications as non-robotic surgeries. If you or a loved one had surgery where a da Vinci robot was used and a resulting injury, contact our medical malpractice and product liability lawyers at 1.800.553.8082.