The da Vinci surgical robot, known as the da Vinci system, is manufactured by Intuitive Surgical Inc. (“Intuitive”) and has been sold to many hospitals throughout the United States despite its base price of approximately $1.5 million. The da Vinci system promises less evasive and more precise surgical procedures with less recovery time for appropriate surgical candidates. More than 176,000 surgical procedures have been completed using the da Vinci surgical robot during the first three months of 2016, which is an increase of 17% over the same period in 2015.
Despite the increasing use of the da Vinci surgical robot for surgical procedures performed in the United States, there have been many medical malpractice and product liability claims filed throughout the United States regarding harm caused to patients on whom the da Vinci robot was used. In 2014 alone, Intuitive reported that there were about 3,000 claims against it regarding its da Vinci system, many of which were settled.
In regulatory filings, Intuitive has disclosed that it is defending against approximately 86 injury lawsuits in 22 U.S. states and has set aside approximately $100 million to resolve personal injury claims made from 2014 through earlier in 2016, with many of the personal injury lawsuits in the early stages of litigation (Intuitive denies any wrongdoing).
Now, two of Intuitive’s insurers have filed lawsuits seeking a determination that they are not responsible for da Vinci claims because Intuitive allegedly failed to disclose more than 700 personal injury claims involving the da Vinci system when it filed applications for liability coverage with them. Based on the alleged misrepresentations, the insurers contend that they would not have issued liability policies to Intuitive had the proper disclosures been made and that they are entitled to rescind the liability policies they had issued to Intuitive.
One of the insurers alleges that Intuitive had concealed from it the tolling agreements that Intuitive had entered into with the lawyers for hundreds of patients who contend that they were harmed by the da Vinci system (tolling agreements typically provide that the parties agree that the applicable statute of limitations for claims will not run during the period that the parties are engaged in settlement negotiations). The effect was that Intuitive disclosed only 24 claims and failed to disclose an additional 734 claims when it applied for liability coverage in 2013, according to the insurer.
Intuitive has responded to its insurers’ efforts to escape coverage and payments under the liability policies by arguing that the insurers were aware of the tolling agreements before they issued the liability policies, and that it was only required to disclose incidents that were likely to result in claims and that the tolling agreements do not fit that definition because they were only potential claims.
Intuitive filed lawsuits against the two insurers in October 2015, seeking a court order that the insurers provide coverage for 860 claims by one of the insurers and for 111 claims by the other insurer.
In any event, both Intuitive Surgical Inc. and the two insurers have many millions of dollars at stake: if required to provide coverage, the two insurers may be forced to pay millions of dollars for da Vinci claims that they claim were not disclosed; if the insurers are allowed to rescind the liability policies that they issued to Intuitive Surgical Inc., then Intuitive will be faced with the prospect of paying millions of dollars to resolve claims for which they thought they had insurance coverage.
If you or a loved one have suffered complications or other injuries during or following da Vinci surgery, you should promptly consult with a local medical malpractice attorney who may agree to investigate your possible da Vinci claim for you and file a da Vinci claim on your behalf, if appropriate.
Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice lawyers in your state who may agree to handle your da Vinci Surgical System claim.
Turn to us when you don’t know where to turn.