In a closely watched medical malpractice case that attracted a Who’s Who of health care advocates, the New Jersey Supreme Court has sided with The Valley Hospital and its director of minimally invasive gynecologic surgery in a lawsuit about a 43-year-old woman’s death after a surgical device spread cancer in her abdomen.
Valley, Dr. Howard H. Jones and various hospital administrators will not have to face claims for punitive damages, which are highly unusual, in the case filed by family members of Viviana Ruscitto, a Nyack, New York, woman who died in 2015, leaving a 2-year-old son. The lawsuit now is returned to a lower court for a decision about compensatory damages, which are more common.
The case is one of several filed around the country on behalf of women who died after procedures with a power morcellator, a tool that cuts the uterus or fibroid tumors into pieces small enough to be sucked out through a small incision. The device eliminates the need for open surgery, which has a longer recovery time than laparoscopic surgery. But in some cases, it can spread previously undiagnosed cancer cells throughout the abdomen and shorten patients’ lives.
The federal Food and Drug Administration has subsequently recommended that power morcellators be used only with a containment system to catch all of the tissue as it is broken up. And it recommends that the device be used only with “appropriately selected” women whose chance of cancer is minimal and who have been informed of the procedure’s risks.
A Valley spokeswoman declined to say whether the hospital has changed its policy regarding the use of power morcellators. “It is our practice not to comment on pending litigation,” said Megan Fraser, vice president of communications and marketing.
Punitive damages in medical malpractice cases are rare. They are reserved for when a jury finds that a doctor or hospital acted with actual malice or “wanton and willful disregard” for a patient. The defendants are personally liable, because punitive damages are not covered by malpractice insurance policies. Typically, malpractice cases involve compensatory damages — payment for pain, suffering and lost wages.
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In this case, however, attorneys for Ruscitto’s family sought punitive damages as well as compensatory damages. They argued that the surgeon should have known the risks of using a power morcellator for Ruscitto’s surgery after one of his previous patients had died a year earlier following her cancer’s spread after a similar procedure. They also argued that the FDA had issued a “safety communication” discouraging use of the device six months before Ruscitto’s 2014 operation.
“Dr. Jones used the dangerous procedure on another patient one year before [Ruscitto’s] surgery, which resulted in her premature death,” said Michael Gunzburg, the attorney for Mirian Rivera, Ruscitto’s sister and the executor of her estate. “He should not have been using the power morcellator at all.” In addition, he said surgeons at Valley used power morcellators on 37 other patients after the FDA safety letter was received, without informing them of the letter or obtaining their informed consent to use the device.
“The court is saying you can lie, cheat and basically kill your patients and you won’t be punished in New Jersey,” said Gunzburg. The decision prevents a jury from considering whether punitive damages were appropriate, he said. In doing so, the court potentially saved Valley “tens of millions of dollars,” he added.
Ruscitto, who grew up in Nyack, was the director of diagnostic imaging at a Westchester medical practice. She was diagnosed with metastatic leiomyosarcoma, a rare and aggressive cancer, within a month of her surgery at Valley, and died in September 2015.
In its unanimous decision, the New Jersey Supreme Court ruled that claims for punitive damages were not justified for Jones, the hospital or its administrators. Jones had several appointments with Ruscitto and conducted tests to look for cancer before the procedure, noted the decision, written by the court’s newest justice, Fabiana Pierre-Louis.
“Nothing in the facts before the Court, including Dr. Jones’s four meetings with Ruscitto prior to the surgery, suggests that Dr. Jones acted with actual malice towards her,” the decision said. “The evidence is also devoid of any indication that Dr. Jones treated Ruscitto with wanton and willful disregard of her health.”
The court also noted that Valley’s CEO, Audrey Meyers, and its risk manager, Linda Malkin, had taken steps soon after the FDA’s safety communication to review the hospital policy on the use of power morcellators and draft a form for patients’ informed consent. The form was not adopted before her surgery, however.
The case attracted national attention in the medical community. Friend-of-court briefs in support of Valley Hospital and the surgeon were filed by the American Medical Association, the Medical Society of New Jersey, the New Jersey Hospital Association and the New Jersey Doctor-Patient Alliance.
Along with lawyers for Valley and Jones, they argued that if a jury was allowed to rule on punitive damages, it would cause irreparable harm: The health care industry would make the prevention of legal exposure its top priority, rather than medical innovation and improvements in patient care.
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Gunzburg, a New York lawyer, and Demetrios Stratis of Fair Lawn argued on behalf of Ruscitto’s estate. They obtained a deposition from Ruscitto six days before she died, when she was dependent on a feeding tube and pain medicines. Bruce Nagel, a Roseland attorney, also argued on behalf of the New Jersey Association for Justice, an association of plaintiff’s attorneys in product safety, environmental and health care lawsuits that filed a friend-of-court brief.
Claims against the manufacturer of the power morcellator, Karl Storz Endovision, a German company, have been resolved, Gunzburg said.
A Superior Court judge and the Appellate Division each refused to dismiss the claims for punitive damages before Valley, Jones and the other defendants appealed the case to the state Supreme Court.
The Supreme Court’s decision, released Thursday, clears the way for the lawsuit to go back to Superior Court in Bergen County, where a jury will be asked to make a decision on the claims of negligence and compensatory damages or a settlement will be negotiated.