Monthly Archives: July 2010

Robotics Surgery Botched Procedure

27 July 2010

The da Vinci surgical system is a remote controlled robot used by surgeons to perform minimally invasive procedures. According to its manufacturer, Intuitive Surgical, the robot “combines superior 3D visualization along with greatly enhanced dexterity, precision and control in an intuitive, ergonomic interface with breakthrough surgical capabilities.” While this may be true in the hands of a skilled surgeon, this machine can produce catastrophic results when operated by inexperienced surgeons.

On May 25, 2010, Swartz & Swartz filed the first known malpractice case in New Hampshire involving a botched robotics surgical procedure. The lawsuit is on behalf of Sherry Long, a woman from Rochester, NH. She went into Wentworth-Douglass hospital for a hysterectomy in March and was told by her surgeon that they would use robotics to perform the surgery as it was less invasive. During the procedure the surgeon, who was in training, cut both of her ureters, a surgical error that should not occur in the hands of a skilled surgeon. Unfortunately with this machine, the slightest error in manipulation and/or visualization can result in catastrophic injuries to the patient.

Swartz & Swartz alleged that the surgeon who was operating the robot was still undergoing training on the machine when she cut Ms. Long’s uterers. Incredibly the hospital allowed this untrained professional to use a robot to perform surgery on Ms. Long without ever informing her that the surgeon was in training. This type of situation should never occur and this is not the first time that this has occurred. Swartz & Swartz has received numerous phone calls from people with similar cases. The suit hopes to shed light on surgical mishaps due to operator errors and assure that no other surgeries are performed with robotic machines unless the surgeons are highly trained and certified in the proper operation of these machines


Next time a doctor asks you if you have any questions, ASK QUESTIONS! You have a right called informed consent—it is your right to know everything about the procedure that you will be undergoing, including all the risks associated with the surgery, how the surgery will be performed, who will be performing the surgery and their qualifications and experience. Stay informed. Many hospitals have patient advocates that can assist you with making a decision. You can also contact your state department of health for further information. Also, the internet has a wealth of information about potential complications of surgical procedures as well as information about your doctor. Unfortunately, not all hospitals report these types of errors and instead classify them as acceptable complications of surgery. So, next time be prepared, ask first and become a well informed patient.

By David P. Angueira of Swartz & Swartz P.C.Permalink

Change the Death on High Seas Act

20 July 2010

In 1920 Congress enacted the Death on the High Seas Act (DOHSA) in an effort to provide a remedy for families who lost loved ones, particularly seamen, while engaged in maritime activity. Initially, the law covered various deaths occurring on the high seas on vessels and in operations involving loading and unloading vessels. As the commercial airline industry grew and aviation accidents increased resulting in plane crashes in the high seas, courts were left to devise creative interpretations of the law in order to find ways to allow victims of plane crashes to recover some compensation. It was not until the year 2000 that congress amended Death on the High Seas Act to deal specifically with commercial airplane crashes.

After the Oil Rig explosion in 2010 in the Gulf of Mexico, Congress once again is attempting to amend DOHSA to allow victims to recover full damages for the loss of their family members.

The House of Representatives recently passed an Amendment to DOHSA. The Senate has not acted on this amendment to date. On July 1st 2010, the US House of Representative passed the SPILL Act which is an amendment to DOHSA. The Spill act will allow the family members of those killed in wrongful death cases on high seas to recover for non-pecuniary damages. This act would also repeal the Limitations on Liability Act (of 1851) which limits the liability of a vessel owner when an accident occurs. Now, bankruptcy will no longer be an excuse for a company to avoid compensating the victims and their families. The amendment changes the law to allow the victims’ families to collect full and fair compensation for their losses including what is called pecuniary and non-pecuniary damages. Pecuniary damages are generally referred to as economic damages such as lost wages, income or other “out of pocket” losses. Non-pecuniary damages include pain and suffering, loss of consortium, and loss of enjoyment of life.

In its present form, DOHSA only allows for pecuniary damages unless a foreign law is applicable. Unfortunately, several courts have interpreted this section in a very restrictive manner. Under the current law, for example, if an adult child dies leaving no dependents the parents would not be able to recover anything for their loss of consortium or for the pain and suffering of their child.

On July 20th, 2010, the U.S. Senate Committee on Commerce, Science, and Transportation will be considering the new act to amend DOHSA. Especially with the recent oil rig explosion, this current amendment is a wonderful opportunity for congress to correct what has been a very unfair and restrictive law and make it more reasonable and humane in its treatment of all injured victims.

By David P. Angueira of Swartz & Swartz P.C.Permalink (more…)

Death of Two Twin Toddlers in Pool in Lynnfield, MA

19 July 2010

On Saturday morning two twin toddler girls were found dead after drowning in a swimming pool at their home in Lynnfield, Massachusetts. Lynnfield police responded to a 911 call on Saturday morning about two children that had fallen into the pool. The two girls, Veronica and Angelina Andreottola, were rushed to the hospital. Lynnfield firefighters spent 13 minutes performing CPR on the two toddlers but unfortunately, according to officials, it was too late. The girls were pronounced dead upon arrival at Union Hospital. Officials report that the mother of these two toddlers was home at the time of the incident but no foul play seems to have occurred.

The twin girls apparently fell underneath the inground pool cover and drowned. Products like these that are seemingly safe to use can be potentially life threatening. Manufacturers must be more prudent to ensure that the products that they release into the streams of commerce do not have the potential to cause harm in the foreseeable environment of end-use. For example, many pool covers are intended to provide protection for homeowners from children accessing the water. The risk of catastrophic injury or wrongful death due to hazardous pool safety covers and devices is too great, and the consequences too dire, to demand anything less than the promise of a safe home pool environment.

While the investigation of these tragic drowning is ongoing, and the cause is to be determined, the grim scenario is a harsh reminder that defective products lead to hazards that can cause drowning, suffocation, strangulation, fire or other personal injuries. The first line of defense for such products is manufacturing them free of defects, with thorough and adequate pre-market testing. While recalls after such tragedies are important, manufacturers and retailers must do a better job of discovering defects before their products reach consumers, so related deaths can be avoided.

Pool covers are often marketed and sold as safety devices to protect children. The CPSC, for example, has released numerous warnings regarding the hazards of solar and other pool covers. Consumers of these products must be aware of the dangers that the products may pose, and manufacturers must do a better job of eliminating foreseeable risks.

By James A. Swartz of Swartz & Swartz P.C.Permalink

Kids’ Tent Recalled Due to Strangulation Hazard

19 July 2010

The U.S. Consumer Product Safety Commission (CPSC) and Health Canada (HC), in cooperation with Tots in Mind Inc., of Salem, N.H., is announcing that a recall was issued on July 15, 2010 of about 20,000 “Cozy Indoor Outdoor Portable Playard Tents Plus Cabana Kits”, sold in the United States by Tots in Mind Inc. of Salem, N.H., at retailers including Walmart and Clips that attach the tent to the top of the playard reportedly can break or be removed by a child, allowing the tent to be lifted, potentially entrapping the child at the neck between the rigid playard frame and the metal base rod of the tent. The CPSC has warned that the product poses a strangulation hazard.

The government became aware of the death of a 2-year-old boy in December, 2008 in Vinalhaven, Maine. The boy was found hanging with his neck entrapped between the playard frame and the metal base rod of the tent that had been partially tied by pieces of nylon rope and partially attached by clips. The tent was tied to the playard because the child was able to pop off the clips. Apparently, the child became entrapped while attempting to climb out of the playard. In at least three other incidents, children were able to remove one or more clips and place their necks between the tent and the playard.

Families and caregivers have been warned to stop using these playards immediately. There have been previous recalls of other cribs and play yards for similar hazards, yet remarkably, such products can still be found in the streams of commerce. The dangers of catastrophic injury that these products cause is severe and the manufacturers need to be more diligent in making sure these kinds of accidents are not possible.

By James A. Swartz of Swartz & Swartz P.C.Permalink

Childrens’ Jewelry Recalled!

14 July 2010

On July 13, 2010, the government announced a safety recall of over 130,000 metal necklaces, bracelets and earrings due to excessive levels of the toxic chemical cadmium. This jewelry was sold for use by children – cadmium is toxic once ingested, and reportedly can cause adverse health effects. These children’s products were made in China, and sold in the U.S. by Tween Brands, Inc. of Albany, NY. The recall covered many different styles and shapes of jewelry, such as “hearts, heart locks, butterflies, cupcakes, peace signs and crowns.”

Unfortunately, this recall and many others like it highlight the need for continued vigilance by consumers. Chemicals and lead in toys and other children’s products are critical issues that have received much publicity in recent years, and families should not overlook these “hidden” hazards while shopping. Toxicity of children’s playthings is a serious hazard that unfortunately can only be detected with sophisticated equipment. However, understanding the types of products that have been associated with prior safety alerts and recalls can be helpful in rooting out some potential dangers and protect children from personal injury.

By James A. Swartz of Swartz & Swartz P.C.Permalink

The Danger of Cribs

2 July 2010

On June 24, 2010, the Consumer Product Safety Commission (“CPSC”) announced seven sweeping recalls of cribs in order to address safety hazards, including entrapment, suffocation and falls. The recalls were part of a campaign by the government to remove “drop-side” and other crib hazards from the marketplace.

Over the past five years alone, 9,000,000 (nine million) drop side cribs have been recalled. Studies have shown that drop-side cribs tend to be “less structurally sound” than cribs with four fixed sides. Known hazards include entrapment of a baby’s head or chest in between the mattress and the crib side, leading to suffocation injuries and even wrongful death.

The crib brands involved in the most recent recalls include Child Craft stationary (between 40,000 and 50,000 units) and drop-side cribs; Delta drop-side (747,000 units) and certain fixed-side cribs using wooden stabilizer bars; Evenflo “Jenny Lind” cribs (750,000 units); Jardine drop-side cribs (130,000 units); LaJobi drop-side cribs (306,000 units); Million Dollar Baby drop-side cribs (156,000 units); and Simmons drop-side cribs (50,000 units).

While proper labeling, recalls and regulations are important for safety of children’s products, manufacturers have a responsibility to ensure only safe products reach the marketplace so as to not cause any catastrophic injury. The millions of dangerous cribs flooding retail store shelves before their hazards are identified highlight the inadequacy of current safety protocols. There is simply no excuse for companies to sell dangerous cribs to consumers. The burden must be on manufacturers and retailers, not consumers, to identify hazards before their products enter the channels of commerce.

By James A. Swartz of Swartz & Swartz P.C. Permalink