A Message to Medical Malpractice Lawyers and Trial Advocates About Gynecological Morcellation: Let There Be War!
Back in 2013 when I proudly completed my training as a cardiothoracic surgeon at Harvard’s prestigious Brigham and Women’s Hospital (BWH), I could have never imagined writing an article like this one.
But this all changed on May 24, 2017 when my beloved wife lost her life, unnecessarily, following a medical complication at BWH. So, here, I am writing to define a large and profitable target for medical malpractice lawyers representing plaintiffs across the United States.
The complacency and protectionism exhibited by highly decorated leaders in gynecology and corporate medical leaders has left me with no choice but to write this article and to invite every plaintiff’s attorneys in America to engage what will be a winnable fight to bring sanity to gynecology — and to recover the damage that is being done to many women and families.
In October 2013, Dr. Amy J. Reed, my wife and the mother of our 6 children, experienced a gynecological complication at the Brigham and Women’s Hospital in Boston. Last May, she passed away because of this complication, surrounded by loving family and friends in our home.
Amy’s complication involved the spread of a deadly cancer throughout her abdomen and pelvis by a routine gynecological procedure known as morcellation. This procedure is commonly used by gynecologists to remove symptomatic uterine fibroids from women. By 2013, and even now, this practice had been industrialized into a service line product and a dedicated medical device called a “power morcellator” had essentially automated the practice.
Many attorneys are familiar with the public health campaign my wife led since 2013. The results of this battle for women speak for themselves. The FDA acted to restrain power morcellators in the marketplace. The largest producer of power morcellators, J&J, withdrew from the market. And the “demise” of power morcellation was lamented by many a superficial thinker. Most large medical centers across the country no longer use the power morcellator device.
Hundreds of lawsuits against J&J have already settled. Several important lawsuits against gynecologists and the remaining major manufacturer, STORZ, are ongoing. Though it’s puzzling that despite mounting cases against its morcellator, STORZ continues to market and sell its power morcellator undeterred. But irrespective of this self-defeating position, the remaining strongholds of power morcellation in gynecology are folding soon and STORZ risks enormous liability because of its leadership’s petulance and lack of insight in retaining this dangerous gynecological product on the market.
But the bottom line for plaintiff’s law firms is that there isn’t much more money to be made on the power morcellator itself — that battle is pretty much over or already well underway by retained firms.
But what remains for plaintiff’s lawyers to tackle is a treasure trove of gynecological under-education and negligence when it comes to the broader practice of morcellation. Because the power morcellator became only an easy and visible target for medical malpractice and product liability attorneys following the publicity Amy’s campaign generated — but it is certainly not the prize itself.
The real target that is now exposed, and is simply a gift to any plaintiff’s lawyer who takes the time to look with any degree of care, is the practice of gynecological morcellation itself. Because, despite the demise of the power morcellator, Gynecologists are continuing to morcellate uterine fibroid tumors, undeterred, believing Amy Reed’s campaign to have been a publicity stunt. And this unacceptable and arrogant behavior carries the risk of spreading occult or missed malignancies in many more unsuspecting women.
It is an elementary fact any medical malpractice lawyer should recognize that if a tumor has an undiagnosable chance of being malignant, and if morcellating a tumor risks harming the patient by spreading or upstaging such an occult cancer, then so doing fits the classical legal definition of negligence. No degree of “informed consent” would justify such a negligent practice. Especially because neither the doctor, nor the patient, engaged in such an informed consent process believes the patient to have a cancer, because otherwise morcellation would not be offered. But if the patient does have an occult or missed cancer, morcellation unacceptably exposes the patient to a deadly hazard.
But, in the imbalanced cognitive world of a vast majority of gynecologists, uterine fibroid tumors are “benign” and, therefore, it is safe to mince these up for the purpose of extracting the tissue from small incisions or using the imprecise surgical techniques practiced by Gynecologists. And, in that same cognitive deficit, most gynecologists actually believe that their “informed consent” justifies exposing their patients to such a danger — so long as a patient consents, it seems, anything goes. But not so fast, don’t forget Michael Jackson and his clueless doctor: Informed consent never justifies bad and dangerous medicine.
Unfortunately, for the gynecologists who are unwilling to self-correct and eliminate this hazard from their practices, they’ve now been vocally called out on their incorrect thinking, upon which the specialty has built a vast and negligent practice for plaintiff lawyers to now profit from. And they, very certainly, have Dr. Amy J. Reed’s legacy to contend with in changing, correcting their ways and in explaining the history of their field to future generations of gynecologists.
It is a fact that by morcellating fibroid tumors in women, either using a power morcellator or manually, somewhere in the range of one in 200–400 women will have an occult or missed cancer exposed to the possibility spread or upstaging. And with literally hundreds of thousands of such operations involving morcellation being done annually in the US alone, there are hundreds, if not thousands, of women exposed to this negligent and deadly harm.
The simple message to all plaintiff’s attorneys reading this article is that when a gynecologist morcellates a woman’s fibroid tumor(s), he/she is committing negligence. And when harm is done or a death is caused by this negligent practice, it is well within your legal abilities and ethical duty to impose maximal liability on the physician(s) or medical center(s) engaged in such unsafe behavior. Do so with vigor and in abundance, because there are many cases of this out there. Literally thousands of fibroid operations are being performed across the nation everyday and most of these involve some sort of morcellation by a gynecologist.
My final note is to institutional risk managers, malpractice defense attorneys and malpractice insurers: eliminate this risk from your clients’ practices and hospitals before your wall is breached by plaintiffs’ attorneys and large damages are sustained by your insurers and physicians. Dr. Amy J. Reed’s complication has demonstrated to you, without a doubt, that this practice in gynecology fits the classical definition of negligence — do not make the mistake of assuming that there is a difference between power morcellation and manual morcellation. Do not accept the superficial and incorrect reasoning presented to you by gynecological associations that are heavily invested in this practice. And do not wait for too long, because the attack on this breach in your walls is already well underway and the losses will start mounting.
In the end, I find it tragic that gynecologists and corporate medical leaders were unable to self-regulate well and for the sake of patient safety and ethics. But I suppose we live in a utilitarian society where money and liability are King….So, let it be so. Let the loss of money and imposition of liability regulate impotent and ignorant physicians who failed to see their own errors with the humility and introspection necessary for being healers.
With Amy’s passing, the word morcellation will become synonymous with medical malpractice and negligence for posterity. My attorneys and I will make sure of this.
Let the war begin.
