Summary Judgment Should Have Been Granted To For Damages Regarding Use Of Power Morcellator: Plaintiffs, the heirs and executor of the estate of Viviana Ruscitto, filed complaints seeking compensatory and punitive damages on numerous counts after Ruscitto’s death from leiomyosarcoma, a rare cancer that cannot be reliably diagnosed preoperatively, following the hysterectomy she underwent at defendant Valley Hospital with the use of a power morcellation device. Ruscitto sought treatment for uterine fibroids from defendant Howard Jones, a gynecologic surgeon at the hospital with whom Ruscitto met four times before she underwent surgery. After the procedure, tissue from Ruscitto’s uterus revealed Stage 4 leiomyosarcoma. Ruscitto began cancer treatment and passed away less than one year later.
Approximately six months before Ruscitto’s surgery, the FDA issued a Safety Communication discouraging the use of power morcellation. The communication “estimated that 1 in 350 women undergoing [surgery] for the treatment of fibroids is found to have an unsuspected uterine sarcoma, a type of uterine cancer that includes leiomyosarcoma.” It stated that, “[i]f laparoscopic power morcellation is performed in women with unsuspected uterine sarcoma, there is a risk that the procedure will spread the cancerous tissue within the abdomen and pelvis, significantly worsening the patient’s likelihood of long-term survival.” The FDA also provided specific recommendations for health care providers, including informing patients.
One month after her surgery, the FDA issued an updated communication explicitly warning against the use of power morcellators in the majority of cases. Valley Hospital then discontinued use of the power morcellation device.
Plaintiffs brought claims against several defendants, including Dr. Jones and the Valley Hospital administrators, and defendants sought partial summary judgment dismissing the punitive damages claim. The trial court denied the motions.
The New Jersey Supreme Court held: “Partial summary judgment should have been granted because there was no genuine issue of material fact as to whether defendants knew that their actions or omissions involved a high probability of harm to Ruscitto and that their conduct evinced reckless indifference to her health. Under the facts of this case, the evidence proffered by the plaintiffs may establish defendants’ negligence, but does not constitute conduct that can be characterized as wanton and willful. See Pavlova, 375 N.J. Super. at 405. In sum, plaintiffs have failed to articulate how the same conduct that supports their negligence claims could lead a reasonable jury to find by clear and convincing evidence that defendants acted with actual malice or wanton and willful disregard for Ruscitto’s safety such that punitive damages should be awarded. It bears repeating that punitive damages are available only in “exceptional cases.” Id. at 404. Under the facts of this case, this matter does not qualify as such.”
Source Mirian Rivera v. The Valley Hospital, Inc. (A-25/26/27-21) (085992) (085993) (085994).
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