We represent several clients injured by the da Vinci surgical robot manufactured by Intuitive Surgical, and so I follow the robot surgery injury litigation pretty closely. As you might already know if you’re reading this post, yesterday a jury returned a 10-2 verdict in the Taylor v. Bildsten case in favor of Intuitive Surgical. The case (read a thorough briefing of it here) was filed in Washington state court and was the first da Vinci robot case to go to trial, and so the loss has been interpreted as a bad sign for the other plaintiffs and a good sign for Intuitive Surgical. I disagree for two reasons.
First, everyone - including the lawyers who represented Fred Taylor’s family - knew the case had some unusual challenges. Mr. Taylor died during a prostatectomy procedure that went horribly wrong: his surgeon failed to properly maintain safe water and air pressure during the procedure, causing irreversible damage to Mr. Taylor’s internal organs and rectum, as well as brain damage and a stroke. There’s no doubt that Mr. Taylor died as a result of negligence, the tricky question was whether he died as a result of his surgeon’s negligence alone or if the robot company's negligence contributed as well.
The lawyers for Mr. Taylor’s family argued that, although the surgeon who performed the procedure had performed over 100 prostatectomies using the traditional technique (i.e., no robot) without a single complication, Mr. Taylor’s procedure was the very first unsupervised procedure he performed with the da Vinci robot, and that the surgeon was not adequately trained to perform the procedure, nor was he warned about the problems that come with the robot itself. Prior to Mr. Taylor’s fatal procedure, the surgeon had trained with only two “proctored” procedures (that is, procedures where he is supervised by another surgeon with far more experience); usually, when a surgeon wants to learn a new procedure, they observe or perform two dozen or more of those surgeries before attempting it themselves.
Intuitive Surgical’s failure to adequately train physicians and to warn them about dangers particular to the robotic surgeries is at the heart of many of these cases, but, in the Taylor case, it might not have made a difference. Intuitive Surgical’s lawyers argued, and the jury accepted, that Mr. Taylor wasn’t a candidate for the robotic surgery at all, and that his surgeon was negligent for choosing him in the first place because he was very obese, and so would require a more complicated procedure than the robot was usually used for, particularly by surgeons who were still learning how to use it.
Indeed, the surgeon admitted mistakes were made throughout the procedure and settled the family's claim against him before the case went to trial. It is thus not surprising that the jury found the surgeon, rather than Intuitive Surgical, was primarily responsible for what happened, and they may have believed that he was testifying against the company largely to protect himself from further liability.
Second, stepping back for a minute, Mr. Taylor's injury was indeed more typical of malpractice than of a defect with the robot, and the lawyers for Mr. Taylor’s family never really argued otherwise, and instead argued that Intuitive Surgical had a duty to better train the surgeon. We have seen our fair share of perforations during surgery and other injuries caused by negligent surgical techniques, and for 60 years we have excelled at medical malpractice cases, but injuries of these types - i.e., where the doctor is obviously the one primarily at fault - aren’t at the core of the Intuitive Surgical cases. The lawsuits are not just a matter of a failure to train, they are a matter of the surgery robot being a defective product.
As I explained in a recent blog post, the core of the robot surgery litigation revolves around burn and perforation injuries, injuries that occur because of the robot's design even when the surgeon is operating the machine in a competent, professional manner. The Taylor case had nothing to do with that, and so the jury’s conclusion doesn’t really say much to those cases beyond what we already knew: if the patient’s injury was primarily the doctor’s fault, rather than the robot’s fault, then the doctor is going to be the one that takes most, potentially all, of the blame. The really interesting cases to look for are those where the doctor says, and the jury agrees, that they did nothing wrong - and yet the patient was seriously injured nonetheless.