A wrongful death lawsuit filed in Bergen County, New Jersey alleges medical malpractice and products liability in the death of Sumaira Khan, a 45-year-old mother of three. The suit claims that defendants, including Valley Hospital in Ridgewood, New Jersey and manufacturer Karl Storz GmbH & Co., “knew or should have known” of the significant cancer risks associated with the Rotocut power morcellator, a surgical tool used to treat Ms. Khan’s uterine fibroids.
According to a report in Law 360, Ms. Khan “opted to treat her uterine fibroids, which are noncancerous tumors in the uterus, by having them surgically removed, rather than undergoing a hysterectomy.” The surgeon, Howard A. Jones, “used a morcellator. . . laparoscopically to break up tissue into fragments, rather than removing it via an open procedure.” Tissue samples were found to be malignant, and Ms. Khan underwent treatment for uterine cancer. The lawsuit claims that, in breaking up the fibrous tissue, the morcellator spread cancerous cells throughout Ms. Khan’s abdomen. “Despite surgery and chemotherapy, the cancer continued to spread to other organs and Khan died in June 2016.”
Ms. Khan’s initial surgery took place in November 2013, but studies dating back to 2006 had already raised suspicions about the risks associated with morcellators. By November 2014, the U.S. Food and Drug Administration had issued an urgent warning in which the agency “strongly encouraged” doctors not to use the morcellator. The FDA did not demand a recall, but “at least one manufacturer, Johnson & Johnson unit Ethicon Endo-Surgery Inc., voluntarily began recalling its morcellator after” the FDA had issued an initial alert in April 2014.
The case poses challenges for the plaintiff’s attorneys who must prove causation. In other words, they must show that “but for” the use of the morcellator, the cancer would have been contained in Ms. Khan’s uterus, where it could have been effectively treated. The defense will offer alternative theories for the migration of the cancer cells, which can occur naturally. However, the existence of studies showing risks from the morcellator, the manufacturer’s past unwillingness to disclose those studies to the FDA, and the defendants’ failure to inform their patient of the risks certainly weigh in the plaintiff’s favor.
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