Friedman | Rubin attorney, Peter Mullenix, recently spoke at the WSAJ Tort Law Seminar, at the Washington State Convention Center in Seattle. His topic, Unraveling the da Vinci Code – Litigating Robotically-Assisted Surgery Claims is one that Friedman | Rubin knows well. Here is a summary:
Intuitive Surgical, Inc.’s da Vinci robot is a four-armed, remote controlled surgery system used to perform laparoscopic surgery. It is one of the most rapidly adopted medical technologies in history. Though the robot was not even cleared for use until 2000, more than 450,000 da Vinci procedures were performed in 2012, including 80 percent of U.S. prostatectomies. This growth has been driven by a hyper-aggressive marketing style that involves the setting of surgical quotas for individual surgeons by the manufacturer and direct-to-patient advertising. Though the robots can cost upwards of $2 million, they are being purchased nationwide by even the smallest hospitals. In fact, as of December 2012, there were da Vinci Systems installed in 2,025 hospitals. The hospitals, many of which are already struggling financially, use ISI-provided marketing materials in hopes of attracting new patients. Many hospitals also turn to ISI for aid in setting doctor credentialing criteria, which ISI’s representatives work to keep artificially low, endangering patients.
The primary danger is that the surgeons using the robot have inadequate training and inadequate volume to maintain their skills even after learning to perform the surgery. The medical literature is fairly uniform in showing (a) no overall benefit to use of the robot over traditional open or laparoscopic techniques, and (b) actual detriment to patients during the surgeon’s daunting initial learning curve. Recently, new concerns have arisen concerning a mechanical defect that leads to unintended (and often unobserved) burns of organ tissue.
Intuitive Surgical has been extraordinarily successful in keeping these claims from being heard by juries. Even so, on March 25, 2013, Friedman | Rubin and co-counsel Carol Johnston became the first legal team in the country to survive one of ISI’s motions for summary judgment. Below is a link to the brief Friedman | Rubin filed in Kitsap County Superior Court, which summarizes much of ISI’s aggressive and reckless conduct and explains the legal reasons for why ISI should be held liable for the injuries its reckless choices caused. The case was also the subject of a feature story by the New York Times.