Power morcellators, medical devices widely used in routine gynecological surgeries for slicing up uterine fibroids, have been found to readily spread cancer in patients with undiagnosed uterine leiomycosarcoma, a rare but lethal form of cancer that cannot be accurately detected before surgery.
The Power Morcellator Controversy Leads to Litigation
In response to public outrage, campaign efforts, and medical research studies regarding the possible dangers of morcellation, the FDA issued safety alerts in 2014 strongly advising medical professionals against the use of power morcellators in most instances and requesting that device manufacturers prominently label their morcellator products with risk warnings.
Sadly, a number of patients had already fallen victim to complications likely caused by power morcellators before these FDA announcements were made.
More than 20 lawsuits have been filed by victims or family members of victims harmed by power morcellators against device manufacturers, hospitals, and doctors, with allegations that the defendants did not adequately inform patients of the possible cancer risks.
Power Morcellator Settlements
A power morcellator case filed against device manufacturer Lina Medical by a Pennsylvania resident named Scott Burkhart just reached a settlement in late June 2015. This case, which was the first of many involving power morcellators, was initiated by Burkhart in March 2014 on behalf of his deceased wife, Donna.
In March 2013, 53-year-old Donna underwent a routine laparoscopic hysterectomy employing morcellation, believing the procedure to be a relatively safe and effective treatment for the heavy bleeding she was experiencing due to uterine fibroids.
After the surgery, Donna was diagnosed with advanced leiomyosarcoma, and only 11 months later, the aggressive and treatment-resistant cancer claimed her life. Scott Burkhart’s allegations against Lina Medical stated that Donna’s unsuspected cancer was upstaged by power morcellation and that she was not informed of the risks due to the device maker’s negligence.
The settlement details, including the settlement amount, have not yet been publicly commented upon or disclosed by the Plaintiff or the Defendants. However, Burkhart told the Wall Street Journal that he was “glad” that the case did not proceed to trial, as his main aim in filing the lawsuit was to raise public awareness of the risks of morcellation.
Though it can be desirable for settlements to occur before a trial, to save on costs and time, for a pioneering case to settle so early in the proceedings was unusual, as will be discussed later. All of the other power morcellator cases are still in process.
The Settlement Process
What can you expect after initiating a power morcellator lawsuit?
Due to the complex nature of medical device cases, the pre-trial, trial proceedings and/or negotiating of settlements can be difficult and lengthy. However, the process can be greatly eased by the help of experienced lawyers and it is a worthwhile endeavor in the fight for justice and compensation for the pain and suffering endured by victims and their families.
Our attorneys here at Banville Law expect that power morcellator cases will end up being handled via a special procedure called multi-district litigation (MDL). In this procedure, a number of lawsuits filed individually in various districts are consolidated and processed under one district court, on the basis of sharing common circumstances and similar allegations against the same defendant(s).
Eligibility for MDL is determined by the Judicial Panel on Multidistrict Litigation, and if approved, pre-trial proceedings for the lawsuits, including “discovery”, in which the opposing parties collect evidence from one another by various means, are conducted together in the designated district court.
Any cases that are not resolved by settlements or dismissal can be “remanded”—sent back for trial in the district where they were originally filed.
MDL is commonly used in litigation involving complex subjects such as hazardous medical devices, because handling each case on an individual basis, with the long, complicated proceedings involved, would be very time-consuming and expensive.
Consolidating such cases to be handled simultaneously is often more efficient, saving time and money for all parties involved.
Another benefit of MDL is the flexibility that it affords. Each plaintiff can personally decide between accepting a settlement and pushing for a trial. By contrast, in a “class action” suit (a related procedure for handling a group of similar cases), individual plaintiffs typically have less control over the final case decisions.
Reaching a Settlement
Settling a case requires the plaintiff and defendant(s) to negotiate with each other and agree upon an appropriate amount of compensation. A settlement agreement can be made before a case goes to trial or at any time during trial proceedings.
The LiNA Medical case was unusual in being settled prior to trial because it was the first power morcellator lawsuit filed. Typically, with a new type of lawsuit, several cases of the type must go to trial and receive verdicts in favor of plaintiffs before the defendants will consider negotiating settlements.
However, it can be common for major companies to pursue settlements rather than going to trial, as reducing the duration of court proceedings can cut legal costs and limit the amount of possible negative media attention surrounding a public trial.
Time Sensitivity in Settlements
If you are thinking of pursuing legal action involving power morcellators for yourself or on behalf of a loved one, be aware that each state has a statute of limitations, which restricts the time period during which you can file a lawsuit.
Contact Banville Law today to review your legal options in a free case evaluation.