Recently, a wrongful death suit was filed in a South Carolina federal district court. A man, on behalf of his deceased mother, filed the wrongful death claim against Storz, a medical device manufacturer. According to an article covering the lawsuit, the plaintiff is claiming that his mother’s death was caused by a surgeon’s use of a Storz morcellator, a medical device used in minimally invasive procedures. The device is used to cut apart and remove reproductive tissue through a laparoscopic incision.
The plaintiff alleges that during this process the morcellator emitted microscopic tissue and debris into other areas of the patient’s abdomen leading to the cause of death. If the surgical patient has undiagnosed uterine cancer, this toxic debris can lead to the rapid spread of dangerous cancer cells into other parts of the body.
In this case, the plaintiff’s mother went through a surgical procedure to remove a suspicious mass that was forming in her uterus. The surgeon performed two removal techniques utilizing the Storz morcellator during both procedures. Six days after the procedure, she was diagnosed with uterine cancer and, almost a year later, died despite aggressive radiation treatments.
Proving the Cause of Death
At the center of the lawsuit, the plaintiff argues that Storz failed to warn patients and surgeons of the dangers and risks involved when using the device. In addition, the plaintiff contends that the surgeon’s use of the morcellator lead to the spread of his mother’s cancer; the disease which ultimately caused her death.
Under South Carolina law, wrongful death is defined as one that is caused by the “wrongful act, neglect, or default” of another party. To prove wrongful death, a plaintiff must first prove that the defendant had a duty of care that was subsequently breached. Here, one of the plaintiff’s allegations is that Storz had a duty to warn consumers regarding the dangers of morcellation, and the judge will have to decide whether that duty actually exists. Next, if the judge recognized the breach of a duty of care, the plaintiff will then have to prove to the jury that the defendant’s negligence lead to the cause of death. In this case, the plaintiff would have to show that his mother’s radiation treatments would have been successful had the morcellator not been used.
In South Carolina, the law allows plaintiffs to seek exemplary or punitive damages if they can prove that the wrongful act, neglect, or default was the result of recklessness, willfulness, or malicious intent. These damages are not meant to compensate the family or estate for losses resulting from the untimely death, but are intended to punish and serve as a deterrent for others who might engage in similar reckless and negligent conduct.
The plaintiff in this case is seeking exemplary damages and claims that Storz knew the problems associated with morcellation, concealed the risks, misrepresented the device as safe, as well as fraudulently marketed morcellators as an effective option for less invasive surgery. Notably, the FDA issued an advisory last year warning that when morcellation is performed in women with unsuspected uterine cancer, there is a risk that the procedure will spread the cancerous tissue within the abdomen and pelvis, significantly lessening the patient’s chances of long-term survival.
If you believe your loved one has suffered a wrongful death, contact aCharleston personal injury attorney today. The attorneys atPierce, Herns, Sloan, & Wilson LLC will help you seek compensation that you may be entitled to.