Case: 3:13-cv-00308-TMR Doc #: 1 Filed: 09/13/13 Page: 1 of 114 PAGEID #: 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LINDGREN CHYI
:
CIVIL ACTION NO.
550 Hallandale Drive
Fairlawn, OH 44333
:
JUDGE
and
:
LUCY CHYI
:
550 Hallandale Drive
Fairlawn, OH 44333
:
and
:
EDMUND EISNAUGLE
:
1555 Hiram
Niles, OH 44446
:
and
:
SANDY EISNAUGLE
:
COMPLAINT FOR MEDICAL NEGLIGENCE;
1555 Hiram
FRAUD; MISREPRESENTATION;
Niles, OH 44446
:
DECLARATORY CHALLENGES TO STATE
TORT REFORM (S.B.80 [AS APPLICABLE
and
:
TO MEDICAL NEGLIGENCE/MALPRACTICE]
S.B. 382, H.B. 215); PRODUCTS LIABILITY;
MARK FULMER
:
OTHER CONTRACTUAL, TORT AND/OR
3490 Layer Rd. SW
STATUTORY CAUSES OF ACTION AND
Lordstown, OH 44481
:
CLAIMS SET FORTH PURSUANT TO LAW;
JURY DEMAND
and
:
(DIVERSITY JURISDICTION)
KAREN FULMER
:
3490 Layer Rd. SW
Lordstown, OH 44481
:
and
:
DANIEL GAGLIANO
:
8750 Kimblewick Lane
1
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Trumbull, OH 44484
:
(CLAIM FOR PRODUCTS LIABILITY
AGAINST INTUITIVE ONLY)
:
and
:
CONCETTA GAGLIANO
:
8750 Kimblewick Lane
Trumbull, OH 44484
:
(CLAIMS FOR PRODUCTS LIABILITY
AGAINST INTUITIVE ONLY)
:
and
:
MICHAEL MERGLER
:
3451 Valleywood Drive
Kettering, OH 45429
:
and
:
JACINTA MERGLER
:
3451 Valleywood Drive
Kettering, OH 45429
:
and
:
JOHN PERROTTI
:
226 Rose Hill Drive
New Castle, PA 16105
:
and
:
ANN PERROTTI
:
226 Rose Hill Drive
New Castle, PA 16105
:
and
:
JOHN RAZEM
:
1772 North Allen St.
State College, PA 16803
:
and
:
2
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CAROL RAZEM
:
1772 North Allen Drive
State College, PA 16803
:
and
:
CAROL SPOSIT, Executor of
The Estate of DONAL SPOSIT,
:
Deceased
7500 Harley Hills
:
North Royalton, OH 44133
:
and
:
CAROL SPOSIT
7500 Harley Hills
North Royalton, OH 44133
:
and
:
DENNIS WADE
:
17660 Thompson Road
Thompson, OH 44086
:
and
:
DENISE WADE
:
17660 Thompson Road
Thompson, OH 44086
:
and
:
FRED WILLIAMS, JR.
:
666 Olivesburg Road
Mansfield, OH 44905
:
and
:
MICHELLE DABNEY
:
2515 Burnett Avenue, Apt. 1015
Cincinnati, OH
45219
:
and
:
3
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LINDA D. JULIOUS
:
93 Highland Ave.
Covington, KY 41011
:
and
:
CONSTANCE POWELL
:
c/o BRENDA PATTON
1531 Franklin Avenue
:
Cincinnati, OH
45237
:
and
REGINALD EVANS
:
1758 Wayside Road
Cleveland, OH 44112
:
and
:
BRIAN D. FERGUSON
:
2698 Deming Ave.
Columbus, OH 43202
:
and
:
JOSEPH LACKAY
:
7220 Irish Rose Land
Pinkerington, OH 43147
:
and
:
SHELLY MATTHEW
:
521 Keeler Rd.
Galipolis, OH
45631
:
and
:
LAURA MCNEAL
:
5219 E. 500 North, Lot 17
Leesburg, IN 46538
:
and
:
KIMBALL PETTIFORD
:
4
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708 2ND Street
Washington Courthouse, OH 43160
:
and
:
JAMES ABRAHAM
:
2530 Home Acre Dr.
Columbus, OH 43231
:
and
:
RAYMOND BARKHEIMER
:
871 N. Bellevue
Dover, OH 44642
:
and
:
DONALD BENTLEY
P O Box 87
:
Dunkin Springs, OH 45172
:
and
:
ROBERT BOBO
33814 St. Rt. 124
:
Rutland, OH 45775
:
and
:
MELISSA CHERESNICK
183 Fairpark Rd.
:
Pearcy, AR 71964
:
and
:
DEBRA CLINE
1824 Grandview Avenue
:
Portsmouth, OH 45662
:
and
:
DAWSON COKER
1415 Waverly Avenue
:
Toledo, OH 43607
5
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and
:
PATRICIA COKER
:
1415 Waverly Avenue
Toledo, OH 43607
:
and
:
JENNIFER COLEMAN
:
4400 Genesee
Dayton, OH 45406
:
and
:
WILLIAM COX
:
352 Dixon Road
Petersburg, MI 49270
:
and
:
ANNETTE COURTNEY
:
409 Eastern Ave.
Toledo, OH 43609
:
and
:
RUTH CRONK
:
703 Cooks Hill Court
Mount Juliet, TN 37122
:
and
:
JACK CRONK
:
703 Cooks Hill Court
Mount Juliet, TN 37122
:
and
:
CHARLES DENNY
:
1960 Mimosa Tr
Florence, KY 41042
:
and
:
6
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CARMITA FOSTER
:
3096 Weirton Drive
Columbus, OH 43207
:
and
:
LARRY GRAHAM
:
3048 Fair Ave.
Columbus, OH
43209
:
and
:
ARTHUR GREEN
:
4424 Airport Highway, Apt. 62
Toledo, OH 43615
:
and
:
NATHANIEL GRIFFITH
:
7460 Elbrook Avenue
Cincinnati, OH
45237
:
and
:
LORI BARBER GRIFFITH
:
7460 Elbrook Avenue
Cincinnati, OH
45237
:
and
:
ARALLA HARRINGTON
:
2449 Tennessee
Xenia, OH
45385
:
and
:
GREGG HARTSOCK
:
2101 Freeman
Hamilton, OH
45015
:
and
:
7
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ERNIE HASTY
:
4533 Bigger Road
Kettering, OH 45440
:
and
:
MARY HASTY
:
4533 Bigger Road
Kettering, OH 45440
:
and
:
CECELIA HILL
:
3728 Jackmen Street
Toledo, OH 43612
:
and
:
JACQUELINE HOKE
:
8811 Robin Rd.
South Charleston, OH 45368
:
and
:
JAMES HOKE
:
8811 Robin Rd.
South Charleston, OH
45368
:
and
:
CAROLYN HUDGINS
:
1294 Minnesota
Columbus, OH 43211
:
and
:
ALLISON JOHNSON
:
1421 Allanwood Lane
Dayton, OH 45432
:
and
:
8
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BRENDA JOHNSON
:
1620 Norcol Lane
Cincinnati, OH
45231
:
and
:
TINA KIRKBRIDE BEACH,
:
Admnx. of the Estate of Walter
Kirkbride, deceased
:
315 Camden Road
Zanesville, OH
43701
:
and
:
MARTHA KIRKBRIDE
:
315 Camden Road
Zanesville, OH
43701
:
and
:
LARRY KRATZER
:
15017 Fosnight Road
Orrville, OH
44667
:
and
:
REBECCA KRATZER
:
15017 Fosnight Road
Orrville, OH
44667
:
and
:
CARMEN LOONEY
:
964 Elliot Street
St. Albans, WV 25177
:
and
:
ROBERT MOODY
:
344 Meadowbrook Avenue SE
Warren, OH 44483
:
and
:
9
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KATHY MOODY
:
344 Meadowbrook Avenue 23
Warren, OH 44483
:
and
:
CHRISTEL MURDOCCO
:
14267 Bellridge
Navarre, OH 44662
:
and
:
MARK MURDOCCO
:
14267 Bellridge
Navarre, OH
44662
:
and
:
RALPH NAPOLITANO
:
720 Hawks Crest Lane
Blacklick, OH
43004
:
and
:
EMILY NAPOLITANO
:
720 Hawks Crest Lane
Blacklick, OH
43004
:
and
:
TRACY NEAL
:
5692 Kingsboro Drive
Colorado Springs, CO 80911
:
and
:
DANNY NEAL
:
5692 Kingsboro Drive
Colorado Springs, CO 80911
:
and
:
10
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GREG PATTON
:
451 Glensprings
Cincinnati, OH
45246
:
and
:
CRYSTAL PHIPPS
:
1202 Nelson Rd.
Louisville, OH
45648
:
and
:
MERIDITH RICKETTS
:
1008 Lincoln Ave.
Toledo, OH 43607
:
and
:
INA RIFFE
:
315 Pebblestone Dr.
Monroe, OH 45050
:
and
:
CATHERINE SCIENCE
:
1691 Uplands
Springfield, OH
45506
:
and
:
AMY STEINMETZ
:
4232 Wigeon Place
Batavia, OH 45103
:
and
:
KRISTY WATTS
:
1095 Park Lane
Middletown, OH
45042
:
and
:
11
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MIKE WINNERS
:
2000 S. Clinton Street
Defiance, OH 43512
:
and
:
DIANE WINNERS
:
2000 S. Clinton Street
Defiance, OH 43512
:
PLAINTIFFS,
:
v.
:
INTUITIVE SURGICAL, INC.
:
c/o its Statutory Agent
CT Corporation System
:
1300 East 9th St.
Cleveland, Ohio 44114
:
and
:
INTUITIVE SURGICAL, INC.
:
1266 Kifer Rd., #101
Sunnyvale, CA 94086
:
and
:
CLEVELAND CLINIC FOUNDATION:
c/o its Statutory Agent
CT Corporation System
:
1300 E. 9th St.
Cleveland, OH
44114
:
and
:
DELOS COSGROVE, M.D.
:
CEO of the Cleveland Clinic
Foundation
:
Cleveland Clinic Main Campus
Mail Code NA4
:
9500 Euclid Ave.
12
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Cleveland, OH 44195
:
and
:
JIHAD KAOUK, M.D.
:
Director, Center for Robotic
and Image Guided Surgery
:
Cleveland Clinic Main Campus
Mail Code Q10-1
:
9500 Euclid Ave
Cleveland, OH 44195
:
and
:
RAJ GOEL, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH 44195
:
and
:
JOHN ZHAO, M.D.
Cleveland Clinic Main Campus
:
9500 Euclid Ave. #A100
Cleveland, OH 44195
:
and
:
INDIBAR GILL, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH
44195
:
and
:
JASON HAFRON, M.D.
Cleveland Clinic Main Campus
:
9500 Euclid Ave. #A100
Cleveland, OH 44195
:
and
:
13
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NICHOLAS HEGARTY, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH 44195
and
:
JOHN KEFER, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave.
#A100
:
Cleveland, OH
44195
:
and
UNA LEE, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave.
#A100
:
Cleveland, OH
44195
and
:
WHITE WESLEY MATTHEWS, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave.
#A100
:
Cleveland, OH
44195
:
and
ANDREW STEPHENSON, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave.
#A100
:
Cleveland, OH
44195
:
and
HADLEY WOOD, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave.
#A100
:
Cleveland, OH
44195
:
and
14
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CARVELL NGUYEN, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH 44195
:
and
:
CHRISTOPHER WEIGHT, M.D.
Cleveland Clinic Main Campus
:
9500 Euclid Ave. #A100
Cleveland, OH
44195
:
and
:
VAIRAVAN SUBRAMANIAN, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH
44195
:
and
MONISH ARON, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH
44195
:
and
:
KEVIN EL-HAYEK, M.D.
:
Cleveland Clinic Main Campus
9500 Euclid Ave. #A100
:
Cleveland, OH
44195
and
:
J. MICHAEL HENDERSON, M.D.
:
Chief Quality Officer
Cleveland Clinic Health System
:
Mail Code E32
9500 Euclid Ave.
:
Cleveland, OH 44195
15
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and
:
MEDICARE SECONDARY PAYER
:
RECOVERY CONTRACTOR
P O Box 138832
:
Oklahoma City, OK 73113
:
and
:
ANTHEM BLUE CROSS AND
BLUE SHIELD
:
P O Box 105557
Atlanta GA 30348
:
and
:
OHIO DEPARTMENT OF JOB
:
AND FAMILY SERVICES
TORT RECOVERY
:
350 Worthington Rd. Suite G
Westerville OH
43082
:
and
:
UNITED HEALTH CARE
:
6601 Centerville Business Parkway
Centerville, OH
45459
:
and
:
JANE AND/OR JOHN DOES,
:
Who Are Physicians, Physician
Professional Corporations and/or
:
Other Health Care Providers that
Provided Treatment to Plaintiff, and/or
Health Insurance Payors
:
Whose Identities are Unknown but
Shall be Ascertained Through
:
Discovery
Defendants
:
_____________________________________________________________
16
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Now come the Plaintiffs and as and for their Complaint do hereby state as
follows:
JURISDICTION AND VENUE
1.
This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331 and
pendant and supplemental jurisdiction over all state-law claims pursuant to 28
U.S.C. § 1367.
2.
The Court has jurisdiction to make Federal declaratory judgment under 28 U.S.C.
§2201, and Federal Rule of Civil Procedure 57, and state declaratory judgment
pursuant to Ohio Rev. Code § 2721.01, et seq. and Ohio Civil Rule 57. Further
all other relief may include relief under 28 U.S.C. § 1651 (All Writs Act).
3.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
4.
Both products liability, medical negligence, and other claims are brought against
“Cleveland Clinic Defendants”.
5.
Products claims are brought on behalf of Plaintiffs who had surgeries at state
institutions utilizing da Vinci robotic surgery. These institutes can only be sued
under R.C. 2743.02,et seq for medical and other claims.
PARTIES
6.
Plaintiff Lindgren Chyi (hereinafter “Chyi”) at all times relevant herein was a
resident of Fairlawn, Summit County, Ohio.
7.
Plaintiff, Lucy Chyi at all times relevant herein was a resident of Fairlawn,
Summit County, Ohio. Plaintiff Lucy Chyi is the wife of Plaintiff Lindgren Chyi.
17
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8.
Plaintiff, Edmund Eisnaugle (hereinafter “Eisnaugle”) at all times relevant herein
was a resident of Niles, Trumbull County, Ohio.
9.
Plaintiff, Sandy Eisnaugle at all times relevant herein was a resident of Niles,
Trumbull County, Ohio. Sandy Eisnaughle is the wife of Edmund Eisnaugle.
10.
Plaintiff, Mark Fulmer (hereinafter “Fulmer) at all times relevant herein was a
resident of Lordstown, Trumbull County, Ohio.
11.
Plaintiff, Karen Fulmer at all times relevant herein was a resident of Lordstown,
Trumbull County, Ohio. Plaintiff Karen Fulmer is the wife of Plaintiff Mark
Fulmer.
12.
Plaintiff Daniel Gagliano (hereinafter “Gagliano”) at all times relevant herein was
a resident of Trumbull, Summit County, Ohio.
13.
Plaintiff Concetta Gagliano at all times relevant herein was a resident of
Trumbull, Summit County, Ohio. Plaintiff Concetta Gagliano is the wife of Daniel
Gagliano.
14.
Plaintiff, Michael Mergler, (hereinafter “Mergler”) at all times relevant herein was
a resident of Kettering, Montgomery County, Ohio.
15.
Plaintiff Jacinta Mergler at all times relevant herein was a resident of Kettering,
Montgomery County, Ohio. Plaintiff Jacinta Mergler is the wife of Plaintiff
Michael Mergler.
16.
Plaintiff John Perrotti, (hereinafter Perrotti”) at all times relevant herein was a
resident of New Castle, Lawrence County, Pennsylvania.
18
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17.
Plaintiff Ann Perrotti, at all times relevant herein was a resident of New Castle,
Lawrence County, Pennsylvania. Ann Perrotti is the wife of John Perrotti.
18.
Plaintiff, John Razem,
(hereinafter “Razem”) at all times relevant herein was a
resident of State College, Centre County, Pennsylvania.
19.
Plaintiff Carol Razem at all times relevant herein was a resident of State College,
Centre County, Pennsylvania. Carol Razem is the wife of John Razem.
20.
Plaintiff Donal Sposit, (hereinafter “Sposit”) at all times relevant herein, was a
resident of North Royalton, Medina County, Ohio. Donal Sposit is deceased.
21.
Plaintiff Carol Sposit at all times relevant herein, is a resident of North Royalton,
Medina County, Ohio. Carol Sposit is the wife of Donal Sposit and is the executor
of his estate, having been appointed same in the Cuyahoga County Probate
Court in Case No. 2010 EST0160085.
22.
Plaintiff, Dennis Wade, (hereinafter “Wade”) at all times relevant herein, is a
resident of Thompson, Geauga County, Ohio.
23.
Plaintiff, Denise Wade, at all times relevant herein, is a resident of Thompson,
Geauga County, Ohio. Denise Wade is the wife of Dennis Wade.
24.
Plaintiff, Fred Williams, Jr., (hereinafter “Williams”) at all times relevant herein
was a resident of Mansfield, Richland County, Ohio.
25.
Plaintiff, Michelle Dabney (hereinafter “Dabney”) at all times relevant herein
was a resident of Cincinnati, Hamilton County, Ohio.
26.
Plaintiff Linda Julious, (hereinafter “Julious”) at all times relevant herein is a
resident of Kenton County, Kentucky.
19
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27.
Plaintiff, Constance Powell, (hereinafter “Powell”) at all times relevant herein is a
resident of Cincinnati, Hamilton County, Ohio.
28.
Plaintiff, Reginald Evans, (hereinafter “Evans”) at all times relevant herein is a
resident of Cleveland, Cuyahoga County, Ohio.
29.
Plaintiff, Brian Ferguson (hereinafter “Ferguson”) at all times relevant herein was
a resident of Columbus, Franklin County, Ohio.
30.
Plaintiff Joseph Lackay, (hereinafter “Lackay”) at all times relevant herein is a
resident of Pickerington, Franklin County, Ohio.
31.
Plaintiff Shelly Matthew (hereinafter “Matthew”) at all times relevant herein was
a resident of Gallipolis, Gallia County, Ohio.
32.
Plaintiff, Laura McNeal (hereinafter “McNeal”) at all times relevant herein was a
resident of Leesburg, Kosciusko County, Indiana.
33.
Plaintiff Kimball Pettiford, (hereinafter “Pettiford”) at all times relevant herein is
a resident of Washington Courthouse, Fayette County, Ohio.
34.
Plaintiff, Justice Abraham (hereinafter “Abraham”) at all times relevant herein
was a resident of Columbus, Franklin County, Ohio.
35.
Plaintiff, Raymond Barkheimer (hereinafter “Barkheimer”) at all times relevant
herein was a resident of Dover, Tuscarawas County, Ohio.
36.
Plaintiff, Donal Bentley (hereinafter “Bentley”) at all times relevant herein was a
resident of Dunkin Springs, Highland County, Ohio.
37.
Plaintiff, Robert Bobo (hereinafter “Bobo”) at all times relevant herein was a
resident of Columbus, Franklin County, Ohio.
20
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38.
Plaintiff, Melissa Cheresnick (hereinafter “Cheresnick”) at all times relevant
herein was a resident of Pearcy, Garland County, Arkansas.
39.
Plaintiff, Debra Cline (hereinafter “Cline”) at all times relevant herein is a resident
of Portsmouth, Scioto County, Ohio.
40.
Plaintiff, Dawson Coker, (hereinafter “Coker”) at all times relevant herein is a
resident of Toledo, Lucas County, Ohio.
41.
Plaintiff, Patricia Coker, at all times relevant herein is a resident of Toledo, Lucas
County, Ohio. Patricia Coker is the wife of Dawson Coker.
42.
Plaintiff Jennifer Coleman (hereinafter “Coleman”) at all times relevant herein
was a resident of Dayton, Montgomery County, Ohio.
43.
Plaintiff, Annette Courtney (hereinafter “Courtney”) at all times relevant herein is
a resident of Findlay, Hancock County, Ohio.
44.
Plaintiff William Cox (hereinafter “Cox”) at all times relevant herein was a
resident of Monroe County, Michigan.
45.
Plaintiff, Ruth Cronk (hereinafter “Cronk”) at all times relevant herein is a
resident of Mount Juliet, Wilson County, Tennessee.
46.
Plaintiff, Jack Cronk, at all times relevant herein is a resident of Mount Juliet,
Wilson County, Tennessee. Jack Cronk is the husband of Ruth Cronk.
47.
Plaintiff, Charles Denny (hereinafter “Denny”) at all times relevant herein was a
resident of Florence, Boone County, Kentucky.
48.
Plaintiff Carmita Foster (hereinafter “Foster”) at all times relevant herein is a
resident of Columbus, Franklin County, Ohio.
21
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49.
Plaintiff Larry Graham (hereinafter “Graham”) at all times relevant herein was a
resident of Columbus, Franklin County, Ohio.
50.
Plaintiff Arthur Greene (hereinafter “Greene”) at all times relevant herein was a
resident of Toledo, Lucas County, Ohio.
51.
Plaintiff Nathaniel Griffith, (hereinafter “Griffith”) at all times relevant herein,
was a resident of Cincinnati, Hamilton County, Ohio.
52.
Plaintiff, Lori Barber Griffith, at all times relevant herein was a resident of
Cincinnati, Montgomery County, Ohio. Lori Barber Griffith is the wife of
Nathaniel Griffith.
53.
Plaintiff, Aralla Harrington (hereinafter “Harrington”) at all times relevant herein
was a resident of Xenia, Greene County, Ohio.
54.
Plaintiff, Gregg Hartsock (hereinafter “Hartsock”) at all times relevant herein was
a resident of Hamilton, Butler County, Ohio.
55.
Plaintiff Ernie Hasty, (“hereinafter Hasty”) at all times relevant herein is a
resident of Kettering, Montgomery County, Ohio.
56.
Plaintiff Mary Hasty at all times relevant herein is a resident of Kettering,
Montgomery County, Ohio. Mary Hasty is the wife of Ernie Hasty.
57.
Plaintiff Cecelia Hill, (hereinafter “Hill”) at all times relevant herein was a
resident of Toledo, Lucas County, Ohio.
58.
Plaintiff, Jacqueline Hoke (hereinafter “Hoke”) at all times relevant herein was a
resident of South Charleston, Clark County, Ohio.
22
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59.
Plaintiff, James Hoke at all times relevant herein was a resident of South
Charleston, Clark County, Ohio. James Hoke is the husband of Jacqueline Hoke.
60.
Plaintiff, Carolyn Hudgins (hereinafter “Hudgins”) at all times relevant herein was
a resident of Columbus, Franklin County, Ohio.
61.
Plaintiff Allison Johnson (hereinafter “A. Johnson”) at all times relevant herein is
a resident of Dayton, Montgomery County, Ohio.
62.
Plaintiff, Brenda Johnson (hereinafter “B. Johnson”) at all times relevant herein
was a resident of Cincinnati, Hamilton County, Ohio.
63.
Plaintiff, Walter Kirkbride, (hereinafter “Kirkbride”) at all times relevant herein is
a resident of Zanesville, Muskingum County, Ohio. Walter Kirkbride died on May
3, 2012. Tina Kirkbride Beach is the executor of his estate.
64.
Plaintiff, Mary Kirkbride, at all times relevant herein is a resident of Zanesville,
Muskingum County, Ohio. Mary Kirkbride is the wife of Walter Kirkbride.
65.
Plaintiff Larry Kratzer (hereinafter “Kratzer”) at all times relevant herein is a
resident of Orrville, Wayne County, Ohio.
66.
Plaintiff Rebecca Kratzer at all times relevant herein is a resident of Orrville,
Wayne County, Ohio. Rebecca Kratzer is the wife of Larry Kratzer.
67.
Plaintiff, Carmen Looney (hereinafter “Looney”) at all times relevant herein is a
resident of St. Albans, Kanawha County, Tennessee.
68.
Plaintiff, Robert Moody, (hereinafter “Moody”) at all times relevant herein is a
resident of Warren, Trumbull County, Ohio.
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69.
Plaintiff, Kathy Moody, is a resident of Warren, Trumbull County, Ohio. Kathy
Moody is the wife of Robert Moody.
70.
Plaintiff, Christel Murdocco (hereinafter “Murdocco”) at all times relevant herein
was a resident of Navarre, Stark County, Ohio.
71.
Plaintiff Mark Murdocco at all times relevant herein was a resident of Navarre,
Stark County, Ohio. Marc Murdocco is the husband of Christel Murdocco.
72.
Plaintiff Ralph Napolitano, (hereinafter “Napolitano”) at all times relevant herein,
is a resident of Blacklick, Franklin County, Ohio.
73.
Plaintiff Emily Napolitano, at all times relevant herein, is a resident of Blacklick,
Franklin County, Ohio. Emily Napolitano is the wife of Ralph Napolitano.
74.
Plaintiff, Tracy Neal (hereinafter “Neal”) at all times relevant herein was a
resident of Franklin County, Ohio. Plaintiff Neal is currently a resident of
Colorado Springs, Colorado.
75.
Plaintiff, Danny Neal, at all times relevant herein was a resident of Franklin
County, Ohio. Danny Neal is the husband of Tracy Neal.
76.
Plaintiff, Greg Patton (hereinafter “Patton”) at all times relevant herein was a
resident of Cincinnati, Hamilton County, Ohio.
77.
Plaintiff, Crystal Phipps (hereinafter “Phipps”) at all times relevant herein was a
resident of Louisville, Stark County, Ohio.
78.
Plaintiff, Meridith Ricketts (hereinafter “Ricketts”) at all times relevant herein was
a resident of Toledo, Lucas County, Ohio.
24
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79.
Plaintiff, Ina Riffe (hereinafter “Riffe”) at all times relevant herein was a resident
of Monroe, Butler County, Ohio.
80.
Plaintiff, Catherine Science (hereinafter “Science”) at all times relevant herein
was a resident of Springfield, Clark County, Ohio.
81.
Plaintiff, Amy Steinmetz, (hereinafter “Steinmetz”) at all times relevant herein is
a resident of Batavia, Hamilton County, Ohio.
82.
Plaintiff, Kristy Watts (hereinafter “Watts”) was a resident of Middletown, Butler
County, Ohio.
83.
Plaintiff, Mike Winners, (hereinafter “Winners”) at all times relevant herein was a
resident of Defiance, Defiance County, Ohio.
84.
Plaintiff Diane Winners, at all times relevant herein was a resident of Defiance,
Defiance County, Ohio. Diane Winners is the wife of Mike Winners.
85.
Defendant Intuitive Surgical, Inc.
(hereinafter
“Intuitive”) is a corporation
organized under the laws of the State of California, duly registered with the Ohio
Secretary of State as doing business in the State of Ohio. At all times relevant,
Intuitive was engaged in the business of developing, testing, and selling surgical
equipment in the State of Ohio.
86.
Defendant Cleveland Clinic Foundation (hereinafter “CCF”) is an Ohio corporation
and a duly licensed hospital and/or clinic under the laws of the State of Ohio.
Defendant CCF, through its agent(s), servant(s), and employee(s) was
responsible for rendering appropriate care and treatment to the hereinafter
named Plaintiffs on or about the dates as set forth in this Complaint.
25
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87.
Defendant Delos Cosgrove, M.D. (hereinafter “Cosgrove”) is CCF’s Chief
Executive Officer. As CCF’s Chief Executive Officer, Cosgrove is, and was at all
times relevant herein, responsible for ensuring the CCF created, implemented,
enforced, and applied policies for all of CCF’s operations and activities that
complied with both applicable professional standards of care.
88.
Defendant Jihad Kaouk, M.D. (hereinafter “Kaouk”) at all times pertinent hereto
was a physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
89.
Defendant Raj Goel, M.D. (hereinafter “Goel”) at all times pertinent hereto was
physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
90.
Defendant John Zhao (hereinafter “Zhao”) at all times pertinent hereto was a
physician licensed to practice medicine in the State of Ohio engaged in the
practice or urology in Cleveland, Cuyahoga County, Ohio.
91.
Defendant Indibar Gil, M.D. (hereinafter “Gil”) at all times relevant hereto was a
physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
92.
Defendant Jason Hafron, M.D. (hereinafter “Hafron”) at all times relevant hereto
was a physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
26
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93.
Defendant John Kefer, M.D. (hereinafter “Kefer”) was at all times relevant was a
physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
94.
Defendant Nicholas Hegarty (hereinafter “Hegarty”) at all times pertinent hereto
was a physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
95.
Defendant Una Lee, M.D. (hereinafter “Lee”) at all times pertinent hereto was a
physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
96.
Defendant White Wesley Matthew, M.D. (hereinafter “Matthew) at all times
pertinent hereto was a physician licensed to practice medicine in the State of
Ohio engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
97.
Defendant Andrew Stephenson, M.D. (hereinafter “Stephenson”) at all times
pertinent hereto was a physician licensed to practice medicine in the State of
Ohio engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
98.
Defendant Hadley Wood, M.D. (hereinafter “Wood”) at all times pertinent hereto
was a physician licensed to practice medicine in the State of Ohio engaged in the
practice of urology in Cleveland, Cuyahoga County, Ohio.
99.
Defendant Carvell Nguyen, M.D., M.D. (hereinafter “Nguyen”) at all times
pertinent hereto was a physician licensed to practice medicine in the State of
Ohio engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
27
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100.
Defendant Christopher Weight, M.D. (hereinafter “Weight”) at all times pertinent
hereto was a physician licensed to practice medicine in the State of Ohio
engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
101.
Defendant Vairavan Subramanian, M.D. (hereinafter “Subramanian”) at all times
pertinent hereto was a physician licensed to practice medicine in the State of
Ohio engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
102.
Defendant Monis Aron (hereinafter “Aron”) at all times pertienent hereto was a
physician licensed to practice medicine in the State of Ohio engaged in the
practice or urology in Cleveland, Cuyahoga County, Ohio.
103.
Defendant Kevin El-Hayek, M.D. (hereinafter “El-Hayek”) at all times pertinent
hereto was a physician licensed to practice medicine in the State of Ohio
engaged in the practice of urology in Cleveland, Cuyahoga County, Ohio.
104.
Defendant, J. Michael Henderson, M.D. (hereinafter “Henderson”) at all times
pertinent hereto was the chief quality officer of the Cleveland Clinic Health
System, which is CCF’s parent company. As Chief Quality Officer, Henderson at
a duty to insure all surgeons were credentialed, privileged, and acting within
their scope of privileging.
105.
The aforementioned Defendants Cosgrove, Kaouk, Goel, Zhao, Gil, Hafron, Kefer,
Hegarty, Lee, Matthew, Stephenson, Wood, Nguyen, Weight, Subramanian,
Arnon, El-Hayek and Henderson at all times pertinent hereto were agents,
assigns, and/or employees of Defendant CCF.
28
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106. Defendants, Medicare Secondary Payer Recovery Contractor, Anthem Blue Cross
and Blue Shield, Ohio Department of Job and Family Services, and United Health
Care, (hereinafter “insurance carriers”) are corporations in Ohio or licensed to
do business in Ohio. Defendant insurance carriers have provided health
insurance benefits to Plaintiffs in connection with the treatment of injuries
suffered as a result of the actions of the other named Defendants. There is a
genuine dispute with the insurance carriers with regards to the existence and/or
extent of the insurance carriers’ subrogation rights for health benefits paid on
Plaintiffs’ behalf in connection with these injuries.
FACTS
107. Plaintiffs incorporate all allegations in the previous paragraphs of this Complaint
by reference as if fully rewritten herein.
(Cleveland Clinic Plaintiffs)1
A.
Lindgren Chi
108. On or about January 22, 2007 Plaintiff Chyi underwent a da Vinci robot assisted
prostatectomy at the Cleveland Clinic performed by Defendants Kaouk and
Hafron.
109. Defendants Kaouk and Hafron performed Chyi’s robotic prostatectomy with the
da Vinci robot to remove invasive adenocarcinoma from his prostate.
1 The Cleveland Clinic Plaintiffs have brought separate causes of action for medical negligence and other claims
hereinafter, along with the claims against Defendant Intuitive, which are included. These claims are like and similar
to those brought by Plaintiff, David Antoon in Case No. 3:12-cv-027 in the United States Federal District Court for
the Southern District of Ohio, in separate filings, which may be subject to joinder hereafter. A motion will be made.
29
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110.
Plaintiff Chyi had no pre-existing conditions including sexual dysfunction or
urinary incontinence and other than his prostate cancer, was healthy.
111.
Defendant Kaouk represented to Chyi that the three (3) main objectives of a
robotic prostatectomy were to remove the cancer, retain potency, and retain
continence. Kaouk stated the latter two (potency and continence) were almost
as important as the first (removal of the cancer)
112.
Defendant Kaouk advised Chyi that a robotic prostatectomy was the best
treatment option because it was more accurate and was safer. In addition to
removing the cancer, Defendant Kaouk stated that the robotic prostatectomy had
equal or better outcomes for retaining potency and continence when compared
to open belly surgery.
113.
Defendant Kaouk guaranteed Chyi that he would perform Chyi’s surgery
114.
Plaintiff Chyi was unaware that Defendants Kaouck or Hafron may not have been
qualified, certified, or credentialed to perform Chyi’s robotic prostatectomy or to
use the da Vinci.
115.
Plaintiff Chyi does not recall seeing Defendant Kaouk before or after his surgery.
116.
Plaintiff Chyi was not aware that the da Vinci was defective.
117.
Plaintiff Chyi was not aware that unqualified doctors and/or the defective da
Vinci device caused his surgical injuries or adverse events.
118.
After his robotic prostatectomy, Chyi was completely impotent and incontinent.
119.
Plaintiff Chyi first discovered that his injuries may be related to medical
negligence on or about September 15, 2013.
30
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120.
Plaintiff Chyi first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
B. Edmund Eisnaugle
121.
On or about January or February, 2007 Plaintiff Eisnaugle underwent a da Vinci
robot assisted prostatectomy at the Cleveland Clinic performed by Defendants
Kaouk, Aron, and El-Hayek.
122.
Defendants Kaouk, Monish, and El-Hayek performed Eisnaugle’s robotic
prostatectomy with the da Vinci robot to remove invasive adenocarcinoma from
his prostate.
123.
Plaintiff Eisnaugle had no pre-existing conditions including sexual dysfunction or
urinary incontinence and other than his prostate cancer, was healthy.
124.
Defendant Kaouk represented to Eisnaugle that the three (3) main objectives of
a robotic prostatectomy were to remove the cancer, retain potency, and retain
continence. Kaouk stated the latter two (potency and continence) were almost
as important as the first (removal of the cancer)
125.
Defendant Kaouk advised Eisnaugle that a robotic prostatectomy was the best
treatment option because it was more accurate and was safer. In addition to
removing the cancer, Defendant Kaouk stated that the robotic prostatectomy had
equal or better outcomes for retaining potency and continence when compared
to open belly surgery.
31
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126.
Plaintiff Eisnaugle was unaware that Defendants Kaouk, Monish, and El-Hayek
may not have been qualified, certified, or credentialed to perform Eisnaugle’s
robotic prostatectomy or to use the da Vinci.
127.
Plaintiff Eisnaugle was not aware that the da Vinci was defective.
128.
Plaintiff Eisnaugle was not aware that unqualified doctors and/or the defective da
Vinci device caused his surgical injuries or adverse events.
129.
After his robotic prostatectomy, Eisnaugle was completely impotent and
incontinent.
130.
Plaintiff Eisnaugle first discovered that his injuries may be related to medical
negligence on or about March 18, 2013.
131.
Plaintiff Eisnaugle first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
C. Mark Fulmer
132.
On or about March 2008 Plaintiff Fulmer underwent a da Vinci robot assisted
prostatectomy at the Cleveland Clinic by Defendant Gill.
133.
Defendant Gill performed Fulmer’s robotic prostatectomy with the da Vinci robot
to remove invasive adenocarcinoma from his prostate.
134.
Plaintiff Fulmer had no pre-existing conditions including sexual dysfunction or
urinary incontinence and other than his prostate cancer, was healthy.
135.
Defendants represented to Fulmer that the three (3) main objectives of a robotic
prostatectomy were to remove the cancer, retain potency, and retain continence.
32
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Defendants stated the latter two (potency and continence) were almost as
important as the first (removal of the cancer)
136.
Defendants advised Fulmer that a robotic prostatectomy was the best treatment
option because it was more accurate and was safer. In addition to removing the
cancer, Defendants stated that the robotic prostatectomy had equal or better
outcomes for retaining potency and continence when compared to open belly
surgery.
137.
Plaintiff Fulmer was unaware that Defendants may not have been qualified,
certified, or credentialed to perform Fulmer’s robotic prostatectomy or to use the
da Vinci.
138.
Plaintiff Fulmer was not aware that the da Vinci was defective.
139.
Plaintiff Fulmer was not aware that unqualified doctors and/or the defective da
Vinci device caused his surgical injuries or adverse events.
140.
After his robotic prostatectomy, Fulmer was completely impotent and
incontinent.
141.
Plaintiff Fulmer first discovered that his injuries may be related to medical
negligence on or about March 18, 2013.
142.
Plaintiff Fulmer first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
D.
David Gagliano2
2 The claims by Plaintiff Gagliano are only against Intuitive and do not include any medical negligence claims.
33
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143.
Defendant Gagliano was born on May 3, 1945 and was sixty two (62) years old
when he underwent a robotic prostatectomy at CCF on March 5, 2007.
144.
On or about March 5, 2007 Plaintiff Gagliano underwent a da Vinci robot assisted
prostatectomy at the Cleveland Clinic by Defendants Kaouk and Hafron.
145.
Plaintiff Gagliano was unaware that the da Vinci was defective.
146.
Plaintiff Gagliano first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 5, 2013. Gagliano had previously brought a
medical malpractice/negligence claim only in the Cuyahoga County Common
Pleas Court in Case No. 707473 but had been unaware of the claims against
Intuitive.
E.
Michael Mergler
147.
Plaintiff Mergler was born on November 11, 1951 and was fifty-four (54) years
old when he underwent a robotic prostatectomy at CCF on April 18, 2006.
148.
Defendants Kaouk and Hegarty performed Mergler’s robotic prostatectomy with
the da Vinci to remove invasive adenocarcinoma from his prostate.
149.
Prior to undergoing his prostatectomy Mergler suffered from elevated liver
enzymes, depress, and anxiety but has no sexual dysfunction or urinary
incontinence and was otherwise healthy.
150.
Defendant Kaouk represented to Mergler that the three (3) main objectives of a
robotic prostatectomy were to remove the cancer, retain potency, and retain
continence. Defendant Kaouk stated the latter two (potency and continence)
were almost as important as the first (removal of cancer).
34
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151.
Defendant Kaouk advised Mergler that a robotic prostatectomy was the best
treatment option because it was more accurate and was safer. In addition to
removing the cancer Defendant Kaouk stated that the robotic prostatectomy had
equal or better outcomes for retaining potency and continence when compared
to open belly surgery.
152.
Defendant Kaouk advised Mergler that his “dry” outcomes were ninety eight
percent (98%) and his surgical outcomes for potency were “the best in the
country.”
153.
Defendant Kaouk told Mergler that he was the head robotics at CCF, had
performed “hundreds and hundreds” of robotic prostatectomies and was the
most experienced surgeon in the country in robotic prostatectomies.
154.
Defendant Kaouk guaranteed Mergler that he would perform Mergler’s surgery.
155.
No informed consent exists or can be found in Mergler’s medical records.
Additionally, there is no record of any member of the surgical team reviewing
patient consent with Mergler the day of surgery.
156.
Plaintiff Mergler was unaware that Defendant Kaouk or Hegarty may not have
been qualified, certified, or credentialed to perform Mergler’s robotic
prostatectomy or use the da Vinci.
157.
Plaintiff Mergler does not recall seeing Defendant Kaouk before or after surgery.
158.
Plaintiff Mergler was unaware that unqualified physicians and/or the defective da
Vinci device caused his surgical injuries or adverse events.
159.
The Surgical Time-Out does not record Kaouk present during the surgery.
35
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160.
Defendant Kaouk’s Attestation is completely blank and does not contain his
signature.
161.
The Operative Note is written in the third person to conceal the surgeon’s
identity and is unsigned.
162.
Defendant Kaouk advised Mergler that he had removed all his cancer during
surgery.
163.
Defendant Kaouk failed to inform Mergler that his surgical pathology report
documented positive cancer margins.
164.
Defendant Kaouk did not advise Mergler to begin additional cancer treatments
immediately.
165.
Plaintiff Mergler was unaware that he still had cancer until 2010 when a routine
test revealed extremely elevated PSA levels. He immediately began
chemotherapy treatment.
166.
Defendant Kaouk failed to remove the Jackson Pratt drain from Mergler’s
abdomen following surgery. After several weeks, Mergler called Kaouk’s office,
that was unaware the drain had not been removed.
167.
After his robotic prostatectomy Mergler was completely impotent and
incontinent.
168.
Mergler first discovered that his injuries may be related to medical negligence on
or about September 15, 2012.
169.
Plaintiff Mergler first learned that his injuries were a proximate result of the da
Vinci robot on or about March 5, 2013.
36
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F. John Perrotti
170.
Plaintiff Perrotti was born on November 28, 1936 and was seventy-one (71)
years old when he underwent a robotic prostatectomy on November 19, 2008.
171.
On or about November 18, 2008 Plaintiff Perrotti underwent a da Vinci robot
assisted prostatectomy at the Cleveland Clinic by Defendants Kaouk, Matthew,
and Lee.
172.
Defendant Kaouk represented to Perrotti that the three main objectives of a
robotic prostatectomy were to remove the cancer, retain potency, and retain
continence. Defendant Kaouk advised Perrotti that the latter two (potency and
continence were almost as important as the first (removal of cancer).
173.
The only treatment option Defendant Kaouk offered to Perrotti was a robotic
prostatectomy. Kaouk never advised Perrotti of other treatment options such as
open belly surgery or radiation. Instead Defendant Kaouk told Perrotti that
robotic prostatectomies were the “gold standard” and that very soon all surgeries
would be performed robotically.
174.
Defendant Kaouk advised Perrotti that robotic surgery had equal or better
outcome for retaining potency and continence when compared to open belly
surgery.
175.
Defendant Kaouk advised Perrotti that he would be continent within a few weeks
and potent within six to eight months following surgery.
176.
Defendant Kaouk did not advise Perrotti of any potential complications of
surgery.
37
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177.
Defendant Kaouk advised Perrotti that he was the head of robotics at CCF and
the most experience surgeon in the entire country for robotic prostatectomies.
178.
Defendant Kaouk guaranteed Perrotti that he would perform Perrotti’s surgery
from “A to Z.”
179.
When being moved into the operating room Plaintiff Perrotti asked the resident
about Defendant Kaouk’s location and told the resident he had only authorized
Kaouk to perform the surgery. The resident replied “The boss will be here in a
while.”
180.
No informed consent was obtained from Plaintiff Perrotti and the medical record
does not note any member of the surgical team reviewing patient consent with
Perrotti the day of surgery.
181.
Plaintiff Perrotti was not aware that Defendants, Kaouk, Lee or Matthew may not
have been qualified, certified, or credentialed to perform Perrotti’s robotic
prostatectomy or use the da Vinci.
182.
Plaintiff Perrotti does not recall seeing Defendant Kaouk before or after surgery.
183.
Plaintiff Perotti was not aware that the da Vinci was defective.
184.
Plaintiff Perrotti was not aware than unqualified physicians and/or the defective
da Vinci device caused his surgical injuries or adverse events.
185.
The Surgical Time-Out does not record Defendant Kaouk present during the
surgery.
186.
Defendant Kaouk's attestation is completely blank and does not contain his
signature.
38
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187.
The Operative Note was written in the third person to conceal the surgeon’s
identity and is unsigned.
188.
On November 26, 2008, Plaintiff Perrotti presented for a follow up visit at which
time a cystogram that revealed an anastomotic leak. Perrotti hand carried the
cystogram results to Defendant Kaouk. Kaouk’s assistant wrote in Perrotti’s
medical records “Cystogram: No leak.”
189.
Neither Defendant Kaouk or any other staff surgeon co-signed the note written
as required for Medicare reimbursement.
190.
When Plaintiff Perrotti became concerned about his continued incontinence and
impotence he called Defendant Kaouk. Kaouk never returned any of Perrotti’s
phone calls and never informed Perrotti that he had been permanently rendered
impotent and incontinent.
191.
On June 23, 2010, Perrotti sent a letter to Defendant Kaouk describing his
extremely negative outcome from the surgery. Defendant Kauok never
responded to the letter.
192.
In October 2010, Perrotti consulted with a board certified urologist who informed
Perrotti that his incontinence was a result of surgical damage and missing tissue
from his robotic prostatectomy.
193.
Following his robotic prostatectomy, Plaintiff Perrotti was completely impotent
and incontinent.
194.
Plaintiff Perrotti was required to undergo reconstructive surgery to implant a
bladder sling in an effort to control his incontinence.
39
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195. Plaintiff Perrotti first discovered that his injuries may be related to medical
negligence on or about September 15, 2012.
196. Plaintiff Perrotti first learned this his injuries were a proximate result of the da
Vinci robot on or about March 5, 2013.
G. John Razem
197.
Plaintiff Razem was born on October 13, 1943 and was sixty-five (65) years old
when he underwent a robotic prostatectomy at CCF on April 15, 2009.
198.
On or about April 15, 2009 Plaintiff Razem underwent a da Vinci robot assisted
prostatectomy at the Cleveland Clinic by Defendants Stephenson and Nguyen.
199.
Plaintiff suffered from hypertension and heart disease prior to his prostatectomy
but had no sexual dysfunction or urinary incontinence and was otherwise
healthy.
200.
Defendant Stephenson represented to Plaintiff Razem that the three main
objectives or a robotic prostatectomy were to remove the cancer, retain potency,
and retain continence. Defendant Stephenson advised Plaintiff Razem that the
latter two (potency and continence) were almost as important as the first
(removal of cancer.)
201.
Defendant Stephenson told Plaintiff Razem that surgery was the best treatment
option because it removed cancer and that robotic surgery was more accurate
and precise.
202.
Defendant Stephenson advised Plaintiff Razem that he would be continent within
a few weeks and potent within six to eight months.
40
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203.
Defendant Stephenson did not discuss any potential complications of surgery
with Plaintiff Razem.
204.
The medical consent signed by Plaintiff Razem is not contained within the
medical records. Additionally, there is no record of any member of the surgical
team reviewing the patient consent with Razem on the day of surgery.
205.
Plaintiff Razem was unaware that Defendant Stephenson or any of his residents
or fellows may not have been qualified, certified, or credentialed to perform
Razem’s robotic prostatectomy or use the da Vinci.
206.
Plaintiff Razem does not recall seeing Defendant Stephenson before or after
surgery.
207.
Plaintiff Razem was not aware that the da Vinci was defective.
208.
Plaintiff Razem was not aware that unqualified physicians and/or the defective da
Vinci device caused his surgical injuries or adverse events.
209.
The Surgical Time-Out is missing from Razem’s medical records.
210.
During the surgical procedure Plaintiff Razem suffered significant complications
including injury to his obturator nerve and required at least four (4) units of
blood during the surgical procedure.
211.
There was no attempt during the surgical procedure to salvage Razem’s bladder
neck.
212.
As a result of complications during surgery, Razem required hospitalization for
some twenty-one (21) days.
41
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213. After his robotic prostatectomy Razem was completely impotent and incontinent.
Additionally, the damage to his obturator nerve has caused him extreme and
permanent pain.
214. An outside agency, KePRO, investigated Plaintiff’s medical care and found that
Defendant Stephenson did not meet the standard of care. Defendant
Stephenson has refused to authorize the release of these findings to Plaintiff
Razem.
215. Plaintiff Stephenson first discovered that his injuries may be related to medical
negligence on or about September 15, 2013.
216. Plaintiff Razem first discovered that his injuries proximately resulted from the da
Vinci robot on or about March 5, 2013.
H. Donal Sposit
217. Plaintiff Sposit was born on December 13, 1936 and was sixty-eight (68) years
old when he underwent a robotic prostatectomy at CCF on November 29, 2005
by Defendants Kaouk, Hegarty, and Wood.
218. Plaintiff Sposit had no pre-existing conditions, sexual dysfunction, or urinary
incontinence before his prostatectomy and other than prostate cancer, was
otherwise healthy.
219. Defendant Kaouk represented that the three (3) main objectives of a robotic
prostatectomy were to remove the cancer, retain potency and retain continence.
Defendant Kaouk stated that the latter two (potency and continence) were
almost as important as the first (removal of cancer.)
42
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220.
Defendant Kaouk advised Plaintiff Sposit that a robotic prostatectomy was the
best option because it was more accurate and safer. Defendant Kaouk advised
Plaintiff Sposit that the robotic prostatectomy had equal or better outcomes for
retaining potency and continence when compared to open belly surgery.
221.
Defendant Kaouk advised Plaintiff Sposit that his “dry” outcomes were ninety
eight percent (98%) and that Sposit would not suffer any impotence.
222.
Defendant Kaouk did not discuss the potential complications of surgery with
Sposit.
223.
Defendant Kaouk guaranteed Sposit that he would perform his surgery.
224.
Plaintiff Sposit was unaware that Defendant Kaouk, Hegarty, or Wood may not
have been qualified, certified, or credentialed to perform Sposit’s robotic
prostatectomy or use the da Vinci.
225.
Plaintiff Sposit was unaware the da Vinci was defective.
226.
Plaintiff Sposit was unaware that unqualified physicians and/or the defective da
Vinci device caused his surgical injuries or adverse events.
227.
After his robotic prostatectomy, Plaintiff Sposit was completely impotent and
incontinent until his death in August 2010.
228.
Plaintiff, Estate of Donal Sposit first discovered that his injuries may have been
related to medical negligence on or about September 15, 2012.
229.
Plaintiff, Estate of Donal Sposit first discovered that his injuries may have
proximately resulted from the da Vinci robot on or about March 5, 2013.
I. Dennis Wade
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230.
Plaintiff Wade was born on February 25, 1948 and was fifty-nine (59) years old
when he underwent a robotic prostatectomy at CCF on February 18, 2008.
231.
Defendants Kaouk and Goel performed Wade’s robotic prostatectomy with the da
Vinci to remove invasive adenocarcinoma confined to the prostate.
232.
Plaintiff Wade suffered from hypertension and heart disease prior to his
prostatectomy but had no sexual dysfunction or urinary incontinence and was
otherwise healthy.
233.
Defendant Kaouk represented that the three (3) main objectives of a robotic
prostatectomy were to remove the cancer, retain potency, and retain continence.
Defendant Kaouk stated the latter two (potency and continence ) were almost as
important as the first (removal of cancer.)
234.
Defendant Kaouk offered a robotic prostatectomy as the only treatment option to
Plaintiff Wade. Defendant Kaouk never mentioned open belly surgery or
radiation as treatment options. Defendant Kaouk advised Wade that robotic
prostatectomies were the “gold standard” and that very soon all surgeries would
be done robotically.
235.
Defendant Kaouk advised Wade that he would be “dry” within a few weeks and
that Kaouk’s success rate for continence was 98%. Defendant Kaouk advised
Wade that with a specific “nerve sparing” technique during the robotic
prostatectomy, his potency success rate was 98%.
236.
Defendant Kaouk advised Plaintiff Wade that he had performed six hundred
(600) robotic prostatectomies.
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237.
Defendant Kaouk never discussed the potential complications of surgery with
Wade.
238.
Defendant Kaouk guaranteed Wade that only Defendant Kaouk would perform
Wade’s surgery and they “shook on it.” In reliance of Kauok’s guarantee, Wade
signed an informed consent.
239.
The notes from Wade’s same day surgical consent review are completely blank
with the exception of Defendant Kaouk’s signature dated March 24, 2008, well
over a month after Wade’s surgery.
240.
Plaintiff Wade was not aware that Defendant Kaouk or Goel may not have been
qualified, certified, or credentialed to perform Wade’s robotic prostatectomy or
use the da Vinci.
241.
Plaintiff Wade was not aware that the da Vinci was defective.
242.
Plaintiff Wade was not aware that unqualified physicians and/or the defective da
Vinci device caused his surgical injuries or adverse events.
243.
The Surgical Time-Out indicates that Defendant Goel was the only surgeon
present during the surgery and does not indicate that Defendant Kaouk was
present.
244.
Defendant Kaouk’s attestation is completely blank and does not contain his
signature.
245.
The Operative Note is written in the third person to conceal the surgeon’s
identity and is unsigned.
45
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246. In December 2008 a board certified urologist informed Wade that his “urethral
sphincter was sliced in half like a bagel.” This caused Wade’s incontinence as a
result of surgical damage and missing tissue from his robotic prostatectomy at
CCF.
247. In January 2009, Plaintiff Wade was required to undergo reconstructive surgery
to implant an artificial urethral sphincter to control his incontinence.
248. Following his robotic prostatectomy, Plaintiff Wade was completely impotent and
incontinent.
249. Plaintiff Wade first became aware that his injuries may have been the result of
medical negligence and related claims on or about September 15, 2012.
250. Plaintiff Wade first became aware that his injuries may have been proximately
related to the da Vinci robot on March 5, 2013.
J. Fred Williams, Jr.
251. Plaintiff Williams was born on November 14, 1949 and was sixty-one (61) years
old when he underwent a robotic prostatectomy at CCF in December 2010.
252. Defendants Kaouk, Weight, and Subramanian performed Williams’ robotic
prostatectomy with the da Vinci to remove invasive adenocarcinoma.
253. Prior to surgery Williams suffered from hypertension and depression but had no
sexual dysfunction or urinary incontinence and was otherwise healthy.
254. Defendant Kaouk represented that the three (3) main objectives of a robotic
prostatectomy were to remove the cancer, retain potency, and retain continence.
46
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Defendant Kaouk stated the latter two (potency and continence) were almost as
important as the first (removal of cancer).
255.
Defendant Kaouk only offered a robotic prostatectomy as a treatment option to
Williams. Defendant Kaouk never mentioned open belly surgery or radiation as
treatment options. Defendant Kaouk told Williams that robotic prostatectomies
were the “gold standard” and that very son all surgeries would be done
robotically.
256.
Defendant Kaouk told what that he would be “dry” within a few weeks and that
his success rate for continence was 98%. Defendant Kaouk also advised Wade
that with the specific “nerve sparing” technique during the robotic
prostatectomy, his potency success rate was 98%.
257.
Defendant Kaouk did not discuss the potential complications of surgery with
Williams.
258.
Defendant Kaouk guaranteed Williams that he would perform Williams’ surgery.
In reliance on this guarantee, Williams signed the informed consent.
259.
Williams was not aware that Defendants Kaouk, Wegith, or Subramanian may
not have been qualified, certified, or credentialed to perform Williams’ robotic
prostatectomy or use the da Vinci.
260.
Williams never saw Defendant Kaouk before or after surgery. Williams did,
however, see a woman and the woman that Williams saw performed his surgery.
261.
Williams was not aware the da Vinci was defective.
47
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262.
Williams was not aware that unqualified physicians and/or the da Vinci device
caused his surgical injuries or other adverse events.
263.
After his robotic surgery, Plaintiff Williams was completely impotent and
incontinent.
264.
Plaintiff Williams was required to undergo reconstructive surgery to implant an
AUS to control his continence. Unfortunately, this surgery did not provide
Williams with any positive results and Williams continues to suffer constant pain.
265.
Plaintiff Williams also underwent an additional reconstructive surgery to place an
artificial penile implant to control his impotence which also failed.
266.
As a result of his continued sexual dysfunction, incontinence and depression,
Williams’ wife divorced him.
267.
Plaintiff Williams contemplated suicide and purchased a gun. During an
altercation with a friend, the gun accidentally discharged and injured his friend
and as a result Williams was, and still is, incarcerated.
268.
Plaintiff Williams first became aware his injuries may have been related to
medical negligence on or about March 18, 2013.
269.
Plaintiff Williams first became aware that his injuries were proximately related to
the da Vinci robot until March 18, 2013.
Court of Claims Plaintiffs3
3 The Court of Claims Plaintiffs have brought separate claims for medical negligence and related causes of action in
the Ohio Court of Claims and also have named Intuitive as a Defendant in the Court of claims as a necessary party.
See R.C. 2743.02. A case for each of the Plaintiffs treated in a State institution will shortly be filed.
48
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270.
On or about February 16, 2013 Plaintiff Dabney underwent a da Vinci robot
assisted hysterectomy at University Medical Center in Cincinnati, Ohio by Dr.
Hirth.
271.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Dabney suffered injuries and damages.
272.
On or about February 27, 2013 Plaintiff Linda Julious underwent a da Vinci robot
assisted hysterectomy at University Hospital in Cincinnati, Ohio by Brian Miller,
M.D.
273.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Julious suffered injuries and damages.
274.
On or about May 2, 2013 Plaintiff Powell underwent a da Vinci robot assisted
hysterectomy at University of Cincinnati Medical Center by Ronald Hirth, M.D.
275.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Powell suffered injuries and damages.
276.
On or about April 12, 2011 Plaintiff Evans underwent a da Vinci robot assisted
prostatectomy at University Hospital in Cincinnati, Ohio by Rabii Madi, M.D.
277.
Plaintiff Evans first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
278.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Evans suffered urinary incontinence and/or
erectile dysfunction.
49
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279.
On or about January 11, 2011 Plaintiff Ferguson underwent a da Vinci robot
assisted prostatectomy at Ohio State University Medical Center by Dr. Ronnie
Abaza.
280.
Plaintiff Ferguson first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
281.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Ferguson suffered urinary incontinence
and/or erectile dysfunction.
282.
On or about May 1, 2011 Plaintiff Lackay underwent a da Vinci robot assisted
prostatectomy at Ohio State Medical Center by Asif Qasi, M.D.
283.
Plaintiff Lackay first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
284.
As a direct and proximate result of the defective robots, its improper and/or
unlawful use of the robotic, Plaintiff Lackay suffered urinary incontinence and
erectile dysfunction.
285.
On or about July 13, 2012 Plaintiff Matthew underwent a da Vinci robot assisted
surgery at Ohio State University in Columbus, Ohio by a physician whose name is
not known but shall be ascertained through discovery.
286.
Plaintiff Matthew first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
50
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287.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Matthew suffered a perforated bowel and
damages therefrom.
288.
On or about January 7, 2011 Plaintiff McNeal underwent a da Vinci robot assisted
hysterectomy at Ohio State Medical Center by Erick Eisenhauer, M.D.
289.
Plaintiff McNeal first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
290.
As a direct and proximate result of the defective, robot, its improper and/or
unlawful use of the robotic, Plaintiff McNeal suffered injuries and damages.
291.
Plaintiff Pettiford underwent a da Vinci robot assisted prostatectomy at Ohio
State Medical Center by Dr. Bach.
292.
Plaintiff Pettiford first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
293.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic Plaintiff Pettiford suffered urinary incontinence and
erectile dysfunction.
Other Plaintiffs
294. On or about September 2010 Plaintiff Abraham underwent a da Vinci robot
assisted prostatectomy by Geoffrey Box, M.D. at the Ohio State University
Medical Center.
295. Plaintiff Abraham discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
51
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296.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Abraham suffered injury to his bladder
and/or other organs resulting in urinary incontinence and erectile dysfunction.
297.
On or about July 2010 Plaintiff Barkheimer underwent a da Vinci robot assisted
prostatectomy at Mercy Hospital in Canton, Ohio by a physician whose name is
not known at this time but shall be ascertained during discovery.
298.
Plaintiff Barkheimer discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
299.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Barkheimer suffered injuries and damages
resulting in urinary incontinence and/or erectile dysfunction.
300.
On or about May 15, 2009 Plaintiff Bentley underwent a da Vinci robot assisted
prostatectomy at Bethesda North Hospital in Cincinnati, Ohio by a physician
whose name is not known at this time but shall be ascertained during discovery.
301.
Plaintiff Bentley discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
302.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Bentley suffered injuries and damages
resulting in urinary incontinence and/or erectile dysfunction.
303.
Plaintiff Bobo underwent a da Vinci robot assisted prostatectomy at Ohio State
University Medical Center by a physician whose name is not known at this time
but shall be ascertained during discovery.
52
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304.
Plaintiff Bobo discovered that his injuries were a proximate result of the da Vinci
robot on or about March 18, 2013.
305.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Bobo suffered injuries and damages resulting
in urinary incontinence and/or erectile dysfunction.
306.
Plaintiff Cheresnick underwent a da Vinci robot assisted hysterectomy at St. Joe’s
Mercy Hospital in Arkansas in 2009 by a physician whose name is not known at
this time but shall be ascertained during discovery.
307.
Plaintiff Cheresnick first discovered that her injuries were a proximate result of
the da Vinci robot on or about March 18, 2013.
308.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Cheresnick suffered injuries and damages.
309.
On or about August 28, 2012 Plaintiff Cline underwent a da Vinci robot assisted
hysterectomy at Kings Daughters Hospital in Ashland, Kentucky by Navita Modi
M.D.
310.
Plaintiff Cline first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.4
311.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Cline suffered injuries to her bladder and
ureter.
4 Plaintiff Cline has filed a separate suit in the Scioto County Common Pleas Court in Case No. 13CIA00011 for
medical negligence and related claims. Intuitive is named as a party in that suit for purpose of joinder, statute of
limitations, and other reasons
53
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312.
On or about October 2, 2008 Plaintiff Coker underwent a da Vinci robot assisted
prostatectomy at St. Luke’s Hospital in Toledo, Ohio by Eric Pizza, M.D.
313.
Plaintiff Coker first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
314.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Coker suffered urinary incontinence and
erectile dysfunction.
315.
On or about November 2010 Plaintiff Coleman underwent a da Vinci robot
assisted hysterectomy at Miami Valley Hospital in Dayton, Ohio by a physician
whose name is unknown but shall be ascertained during discovery.
316.
Plaintiff Coleman first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
317.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Coleman suffered injuries and damages.
318.
On or about January 2008 Plaintiff Cox underwent a da Vinci robot assisted
prostatectomy at St. Vincent’s Medical Center in Toledo, Ohio performed by Mirza
Baig, M.D.
319.
Plaintiff Cox first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
320.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Cox suffered urinary incontinence and
erectile dysfunction.
54
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321.
On or about July 2011 Plaintiff Courtney underwent a da Vinci robot assisted
hysterectomy at Blanchard Valley Hospital in Findlay, Ohio by a physician whose
name is not known at this time but shall be ascertained during discovery.
322.
Plaintiff Courtney first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
323.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Courtney suffered injuries and damages.
324.
On or about December 12, 2012 Plaintiff Cronk underwent a da Vinci robot
assisted repair of a paraesophageal hernia at Summit Medical Center in
Hermitage, Tennessee by John Boskind, M.D.5
325.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Cronk suffered an esophageal rupture
resulting in injuries and damages.
326.
Plaintiff Denny underwent a da Vinci robot assisted prostatectomy at Good
Samaritan Hospital in Cincinnati, Ohio by a physician whose name is not known
at this time but shall be ascertained during discovery.
327.
Plaintiff Denny first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
328.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Denny suffered injuries and damages.
5 Plaintiff Cronk may bring a separate lawsuit in State Court in Tennessee for medical negligence and related
claims. Intuitive will be named in that suit as well for purposes of joinder. Suite is more proper in the Court at bar
for all claims against Intuitive.
55
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329.
On or about April 29, 2006 Plaintiff Dudley underwent a da Vinci robot assisted
prostatectomy at St. Vincent’s Medical Center in Toledo, Ohio by a physician
whose name is not known at this time but shall be ascertained during discovery.
330.
Plaintiff Dudley first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
331.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Dudley suffered injuries and damages.
332.
On or about November 20, 2012, Plaintiff Foster underwent a da Vinci robot
assisted hysterectomy at Grant Medical Center in Columbus, Ohio by Tamara
Thompson, M.D.6
333.
Plaintiff Foster first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
334.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Foster suffered a laceration to her bladder
resulting injuries and damages.
335.
On or about September 6, 2012 Plaintiff Graham underwent a da Vinci robot
assisted surgery at Ohio State University Medical Center.
336.
Plaintiff Graham first discovered that his injuries we a proximate result of th da
Vinci robot on or about March 18, 2013.
337.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Graham suffered injuries and damages.
6 Plaintiff Foster may bring a separate lawsuit in the Franklin County, Ohio Common Pleas Court for medical
negligence and related claims. Intuitive will be named in that suit as well for purposes of joinder.
56
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338.
On or about March 7, 2012 Plaintiff Greene underwent a da Vinci robot assisted
prostatectomy at St. Vincent’s Medical Center in Toledo, Ohio by Mirza Baig,
M.D7.
339.
Plaintiff Greene first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
340.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Greene suffered urinary incontinence and
erectile dysfunction.
341.
On or about February 17, 2009 Plaintiff Griffith underwent a da Vinci robot
assisted prostatectomy at Good Samaritan Hospital in Cincinnati, Ohio by Emmett
O’Neal, M.D.
342.
Plaintiff Griffith first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
343.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Griffith suffered urinary incontinence and/or
erectile dysfunction.
344.
On or about October 4, 2012 Plaintiff Harrington underwent a da Vinci robot
assisted hysterectomy at Soin Medical Center in Beavercreek, Ohio by a physician
whose name is not known at this time but shall be ascertained during discovery.
345.
Plaintiff Harrington first discovered that her injuries were a proximate result of
the da Vinci robot on or about March 18, 2013.
7 Plaintiff Greene may bring a separate lawsuit in the Lucas County, Ohio Common Pleas Court for medical
negligence and related claims. Intuitive will be named in that suit as well for purposes of joinder.
57
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346.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Harrington suffered injuries and damages.
347.
On or about July 7, 2007 Plaintiff Hartsock underwent a da Vinci robot assisted
prostatectomy at University of Cincinnati Medical Center by a physician whose
name is not known at this time but shall be ascertained during discovery.
348.
Plaintiff Hartsock first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
349.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Hartsock suffered urinary incontinence
and/or erectile dysfunction.
350.
On or about January 29, 2008 Plaintiff Hasty underwent a da Vinci robot assisted
prostatectomy at Kettering Medical Center in Kettering, Ohio by a physician
whose name is not known but shall be ascertained during discovery.
351.
Plaintiff Hasty first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
352.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Hasty suffered urinary incontinence and/or
erectile dysfunction.
353.
Plaintiff Hill underwent a da Vinci robot assisted hysterectomy at St. Vincent’s
Medical Center in Toledo, Ohio by a physician whose name is not know at this
time but shall be ascertained through discovery.
58
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354.
Plaintiff Hill first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
355.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Hill suffered injuries and damages.
356.
On or about April 1, 2013 Plaintiff Hoke underwent a da Vinci robot assisted
colposuspension at Miami Valley Hospital in Dayton, Ohio by Debra Miller, M.D.8
357.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Hoke suffered a laceration of her iliac vein
and suffered injuries and damages therefrom.
358.
On or about April 10, 2013 Plaintiff A. Johnson underwent a da Vinci robot
assisted hysterectomy at Miami Valley Hospital in Dayton, Ohio by Nancy Romer,
M.D.9
359.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff A. Johnson suffered injuries to her bladder
and damages therefrom.
360.
On or about June 10, 2010 Plaintiff B. Johnson underwent a da Vinci robot
assisted hysterectomy at The Christ Hospital in Cincinnati, Ohio by Jennifer
Green, M.D.
361.
Plaintiff B. Johnson first discovered that her injuries were a proximate result of
the da Vinci robot on or about March 18, 2013.
8 Plaintiff Hoke may bring a separate suit for medical negligence and related claims in the Montgomery County,
Ohio Common Pleas Court. Intuitive will be named in that suit for purposes of joinder.
9 Plaintiff A. Johnson may bring a separate suit in the Montgomery County, Ohio Common Pleas Court for medical
negligence and related claims. Intuitive will be named in that suit for purpose of joinder.
59
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362.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff B. Johnson suffered an injury to her colon
and suffered damages therefrom.
363.
On or about April 23, 2012 Plaintiff Kirkbride underwent a da Vinci robot assisted
prostatectomy at Good Samaritan Hospital in Zanesville, Ohio by Benjamin
Gibson, M.D.
364.
Plaintiff Kirkbride first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
365.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Kirkbride suffered urinary incontinence.
366.
On or about April 14, 2008 Plaintiff Kratzer underwent a da Vinci robot assisted
prostatectomy at Suma Care Hospital in Akron, Ohio by Dr. Breaux.
367.
Plaintiff Kratzer first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
368.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Kratzer suffered urinary incontinence and
erectile dysfunction.
369.
On or about June 25, 2012 Plaintiff Looney underwent an adrenelectomy at
Thomas Medical Center in South Charleston, West Virginia by John Mani, M.D.10
370.
Plaintiff Looney first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
10 Plaintiff Looney may bring a separate suit in West Virginia state court for medical negligence and related claims.
Intuitive will be named in that suit for purposes of joinder.
60
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371.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Looney suffered injury to her pancreas
resulting in damages therefrom.
372.
On or about August 2007 Plaintiff Markland underwent a da Vinci robot assisted
hysterectomy at Akron City Hospital in Akron, Ohio by a physician whose name is
not known at this time but shall be ascertained through discovery.
373.
Plaintiff Markland first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
374.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Markland suffered injuries and damages.
375.
On or about February 22, 2010 Plaintiff Moody underwent a da Vinci robot
assisted prostatectomy at St. Elizabeth Hospital in Youngstown, Ohio by Daniel
Ricchiuti, M.D.
376.
Plaintiff Moody first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
377.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Moody suffered urinary incontinence and
erectile dysfunction.
378.
On or about November 8, 2010 Plaintiff Morris underwent a da Vinci robot
assisted surgery at Good Samaritan Hospital in Cincinnati, Ohio by Jack Basil,
M.D.
61
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379.
Plaintiff first discovered that her injuries were a proximate result of the da Vinci
robot on or about March 18, 2013.
380.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Morris suffered injuries and damages.
381.
On or about August 6, 2012 Plaintiff Murdocco underwent a da Vinci robot
assisted hysterectomy at Mercy Medical Center in Canton, Ohio by a physician
whose name is not known at this time but shall be ascertained through
discovery.
382.
Plaintiff Murdocco first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
383.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Murdocco suffered injuries and damages.
384.
On or about February 23, 2007 Plaintiff Napolitano underwent a da Vinci robot
assisted prostatectomy at Ohio Sated Medical Center in Columbus, Ohio by Dr.
Vip Patel and Dr. Steven Clinton.
385.
Plaintiff Napolitano first discovered that his injuries were a proximate result of
the da Vinci robot on or about March 18, 2013.
386.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Napolitano suffered urinary incontinence and
erectile dysfunction.
387.
On or about July 1, 2010 Plaintiff Neal underwent a da Vinci robot assisted
hysterectomy at Mt. Carmel West hospital in Columbus, Ohio by Dr. Jaskot.
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388.
Plaintiff Neal first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
389.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Neal suffered injuries and damages.
390.
On or about August 23, 2011 Plaintiff Patton underwent a da Vinci robot assisted
prostatectomy at Bethesda North Hospital in Cincinnati, Ohio by a physician
whose name is not known at this time but shall be ascertained during discovery.
391.
Plaintiff Patton first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
392.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Patton suffered urinary incontinence and/or
erectile dysfunction.
393.
On or about January 25, 2013 Plaintiff Phipps underwent a da Vinci robot
assisted hysterectomy at Doctor’s West Hospital in Columbus, Ohio by a
physician whose name is not known at this time but shall be determined during
discovery.
394.
As a direct and proximate result of the improper and/or unlawful use of the
robotic Plaintiff Phipps suffered injuries and damages.
395.
On or about October 30, 2008 Plaintiff Ricketts underwent a da Vinci robot
assisted prostatectomy at Toledo Hospital in Toledo, Ohio by a physician whose
name is not known at this time but shall be ascertained through discovery.
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396.
Plaintiff Ricketts first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
397.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Ricketts suffered urinary incontinence and/or
erectile dysfunction.
398.
Plaintiff Riffe underwent a da Vinci robot assisted hysterectomy at University of
Cincinnati Hospital by a physician whose name is not known at this time but shall
be ascertained during discovery.
399.
Plaintiff Riffe first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
400.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Riffe suffered injuries and damages.
401.
On or about September 2009 Plaintiff Science underwent a da Vinci robot
assisted hysterectomy at Miami Valley Hospital in Dayton, Ohio by a physician
whose name is not known at this time but shall be ascertained through
discovery.
402.
Plaintiff Science first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
403.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Science suffered injuries and damages.
404.
On or about July 27, 2012 Plaintiff Smith underwent a da Vinci robot assisted
gallbladder surgery at Jewish Hospital by Elliott Fegelman, M.D.
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405.
Plaintiff Smith first discovered that his injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
406.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Smith suffered injuries and damages.
407.
On or about November 29, 2005 Plaintiff Sposit underwent a da Vinci robot
assisted prostatectomy at the Cleveland Clinic by Jihad Kaouk, M.D.
408.
Plaintiff Estate of Sposit first discovered that his injuries were a proximate result
of the da Vinci robot on or about March 5, 2013.
409.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Sposit suffered urinary incontinence and
erectile dysfunction.
410.
On or about December 22, 2011 Plaintiff Steinmetz underwent a da Vinci robot
assisted surgery at The Christ Hospital by Marcia Bowling, M.D.
411.
Plaintiff Steinmetz first discovered that her injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
412.
As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Steinmetz suffered injuries and damages.
413.
On or about November 22, 2010 Plaintiff Watts underwent a da Vinci robot
assisted hysterectomy at Miami Valley Hospital in Dayton, Ohio by a physician
whose name is unknown at this time but shall be ascertained during discovery.
414.
Plaintiff Watts first discovered that her injuries were a proximate result of the da
Vinci robot on or about March 18, 2013.
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415. As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Watts suffered injuries and damages.
416. On or about May 21, 2008 Plaintiff Winners underwent a da Vinci robot assisted
prostatectomy at St. Vincent’s Hospital in Toledo, Ohio by Dr. Hasselhoh.
417. Plaintiff Winners first discovered that his injuries were a proximate result of the
da Vinci robot on or about March 18, 2013.
418. As a direct and proximate result of the defective robot, its improper and/or
unlawful use of the robotic, Plaintiff Winners suffered urinary incontinence and
erectile dysfunction.
FIRST CAUSE OF ACTION
(Strict Products Liability-Defective Design)
(Intuitive)
419. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
420. Intuitive Surgical is a medical device manufacturer who designs, manufactures,
markets, and supplies a variety of medical products including, but not limited to,
the Da Vinci surgical robot.
421. Defendant Intuitive is a Delaware corporation with its principal place of doing
business in Sunnyvale, California.
422. Defendant Intuitive is a publicly traded company on the NASDAQ exchange, with a
current market value of more than two billion dollars.
423. Defendant designed, manufactured, tested, sold, promoted and labeled the Da
Vinci surgical robot.
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424.
Defendants presented Plaintiffs with information and materials propounding the
benefit of Da Vinci robotic prostatectomy, hysterectomies and other surgeries over
all other methods. Specifically, Defendants told Plaintiffs that due to the Da Vinci
robotic approach they would heal faster, have a shorter hospital stay, have a
better outcome, have lower risk of complications, fewer days with a catheter, and
have less pain. Defendants also provided some and/or all of the Plaintiffs a
brochure outlining some of these benefits of Da Vinci robotic surgeries.
425.
Based on the representations made by Defendants and the written materials
provided to Plaintiffs, the Plaintiffs agreed to proceed with Da Vinci robotic
operation.
426.
On its website Defendant asserts that it is the global technology leader in surgical
robotic products.
427.
The robotic device is used in hospitals for a variety of surgeries, including
prostatectomies, hysterectomies, and other surgical procedures.
428.
Defendant has promoted its device as
(a) safe, and
(b) safer than other
comparative methods of surgery.
429.
Defendant utilizes prominent websites aimed at consumers, seeking to create
demand for the use of its robotic device by patients who consult surgeons.
430.
Defendant sold its device through a calculated program of intimidation and market
management, forcing hospitals and physicians to purchase it in order to appear to
be competitive, and creating a fear in their minds that if they did not have this
technology they would lose business to competitors.
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431.
Defendant reinforced its calculated program, as stated in the preceding paragraph,
by placing, on its website for potential patients, names of certain physicians who
had performed 20 surgeries with the device.
432.
The use of defendant’s robotic device in surgery presents substantial risks of
complications and injuries.
433.
In addition, due to lengthened time of surgery, patients are unnecessarily
exposed to anesthesia for a dangerous period of time.
434.
Defendant is aware of the aforesaid risks and complications associated with the
use of the said robotic device.
435.
Defendant does not provide adequate warnings to physicians and patients about
the risks and complications associated with the use of its robotic device.
436.
Defendant has not done, nor sponsored, adequate testing on its said device before
and after marketing it to determine whether in random tests its said device is
either safer or more effective or otherwise superior to other surgical and
laparoscopic methods to which it compares itself.
437.
Defendant has not done adequate post marketing surveillance of complications
and injuries that have occurred in actual practice.
438.
Defendant has not done, nor sponsored, any testing as to long-term outcomes, in
comparison to other surgical and laparoscopic methods.
439.
Defendant has not revealed, through publications or reports to the Food and Drug
Administration and other governmental bodies, the true extent of complications
and injuries, which have occurred in actual practice.
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440.
Defendant has suppressed reports and complaints of complications and
performance errors due to the use of its said device.
441.
Defendant does not adequately train physicians nor proctor them properly on the
use of its device, thereby inducing them to cause complications and injuries,
which would be avoided in the hands of properly trained physicians.
442.
Defendant represents that they will have skilled technicians in the operating
room or on emergency call in the event of problems arising with its said device,
but often has neglected to do so.
443.
Defendant has over-promoted its device to hospitals, physicians and the public,
including potential consumers, combined with minimizing the risks and
complications associated with its use.
444.
The device is defective in that it relies upon the use of monopolar energy to cut,
burn and cauterize tissue, whereas safer methods are available such as bipolar
energy and ultrasonic energy, which would reduce substantially the risk of
complications.
445.
The device has inadequate insulation for its arms thereby allowing electrical
current to pass into tissue outside of the operative field.
446.
The insulation on the shafts of the said device becomes torn and worn in places,
without the awareness of the physician user, allowing electrical current to pass
into tissue outside of the operative field, causing damage.
447.
Defendant has failed to warn users and consumers of the said robotic device
about the inadequate insulation on the arms and the potential for electrical
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current to pass into tissue outside of the operative field.
448.
Due to design defects, Defendant's devices have malfunctioned during the course
of operative use causing injury, including the necessity of converting the
procedure into open surgery.
449.
Defendant has failed to warn users and consumers of its said device of the design
flaws stated in the preceding paragraphs, although it has reached out directly to
consumers to promote its asserted advantages.
450.
Defendant had specific knowledge and awareness of the dangers of monopolar
current and that there were safety modalities commercially available that could
have greatly diminished or eliminated some of these risks, yet the Defendant
elected not to include these safety features on the Da Vinci Robotic surgery
platform.
451.
Defendant has obtained and continues to maintain approval of the uses of its
device from the Food and Drug Administration by failing to fully inform them of its
knowledge of risks and complications associated with the use of its device.
452.
Defendant placed into the stream of commerce its aforesaid device which was
defective in design, as previously pleaded.
453.
Defendant owed Plaintiffs a duty to exercise reasonable care when designing,
testing, manufacturing, marketing, advertising, promoting, distributing, and/or
selling Da Vinci Robots for surgery.
454.
At all relevant times to this action, Defendant owed a duty to properly warn
Plaintiff, the medical community, and the Public of the risks, dangers and adverse
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side effects of the Da Vinci Robotic surgery platform.
455.
Defendant breached its duty by failing to exercise ordinary care in the preparation,
design, research, testing, development, manufacturing, inspection, labeling,
marketing, promotion, advertising and selling of Da Vinci Robotic Surgery, as set
forth below:
a)
Failing to test Da Vinci Robotic Prostatectomy properly and thoroughly before
promoting the robotic surgical platform using monopolar current to the market;
b)
Failing to analyze properly and thoroughly the data resulting from the pre-
marketing tests of monopolar current used in the Da Vinci Robotic prostatectomy;
c)
Failing to report to the FDA, the medical community, and the general public those
data resulting from pre- and post-marketing tests of the Da Vinci Robotic
prostatectomy platform which indicated risks associated with its use;
d)
Failing to conduct adequate post-market monitoring and surveillance of post-
surgical complications associated with the Da Vinci Robotic surgery platform using
monopolar current;
e)
Failing to conduct adequate analysis of adverse event reports;
f)
Designing, manufacturing, marketing, advertising, distributing and promoting the
Da Vinci Robotic surgery directly to consumers, including Plaintiff, without
adequate warning of the significant and dangerous risks of monopolar current and
the Da Vinci Robotic surgery Platform and without proper instructions to avoid the
harm which could foresee ably occur as a result of using monopolar energy on the
existing Da Vinci Robotic surgery platform;
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g)
Failing to exercise due care when advertising and promoting Da Vinci Robotic
surgeries;
h)
Negligently continuing to manufacture, market, advertise, and promote Da Vinci
Robotic surgeries after Defendant knew or should have known of the risks of
serious injury associated with using monopolar current to perform certain aspects
of the surgery;
i)
Failing to use due care in the preparation and development of the Da Vinci Robotic
surgeries to prevent the aforementioned risk of injuries to individuals through the
use of monopolar current;
j)
Failing to use due care in the design of the Da Vinci Robotic surgery platform with
special regard to the insulation of the robotic arms and instruments to prevent the
aforementioned risk of injuries to individuals during the routine course of surgery;
k)
Failing to conduct adequate pre-clinical testing and research to determine the
safety of the use of monopolar current and the insulation of the robotic
instruments to be used in robotic prostatectomy, with special regard to the reusing
of the instruments in different patients;
l)
Failing to conduct adequate intra-operative surveillance and post-operative
complication studies to determine the safety of the use of monopolar energy
during the surgical robotic prostatectomy procedure taught by Intuitive while
Defendant knew or should have known that intra-operative surveillance and post-
operative complication analysis would be the only means to determine the relative
risk of using monopolar during important surgical steps when performing robotic
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surgeries and that such surveillance would be necessary for a due diligence
program that would alert defendant to the need to change the technique for the
use of monopolar current or to withdraw it from the market altogether;
m)
Failing to completely, accurately and in a timely fashion, disclose the results of the
pre-marketing testing of issues with monopolar energy and post-marketing
surveillance of monopolar energy related injuries and complications to Plaintiff,
consumers, the medical community, and the FDA;
n)
Failing to accompany marketing materials promoting the Da Vinci Robotic surgery
platform using monopolar current with proper warnings regarding all possible
adverse side effects associated with the use of the same;
o)
Failing to use due care in the manufacture, inspection, and safety evaluation of
the Da Vinci Robotic surgery platform to prevent the aforementioned risk of
injuries to individuals who underwent a Da Vinci Robotic surgeries;
p)
Failing to use due care in the sale and marketing of the Da Vinci Robot to prevent
the aforementioned risk of injuries to individuals who were to undergo robotic
surgeries;
q)
Failing to use due care in the selling of the monopolar scissors to prevent the
aforementioned risk of injuries to individuals who underwent Da Vinci Robotic
surgeries;
r)
Failing to provide adequate and accurate training and information to the sales
representatives who sold the Da Vinci Robot;
s)
Failing to provide adequate and accurate training and information to healthcare
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providers for the appropriate use of the Da Vinci Robot for surgeries;
t)
Failing to conduct or fund research into the development of safer robotic surgical
instruments which would pose the least risk of causing severe thermal injury to
ureter, blood vessels, and other organs;
u)
Failing to educate healthcare providers and the public about the safest use of the
monopolar scissors in Da Vinci Robotic surgery;
v)
Failing to give healthcare providers adequate information to weigh the risks of
serious injury for a given patient using the Da Vinci Robotic surgery platform and
technique featuring the use of monopolar current; and,
w)
Being otherwise reckless, careless and/or negligent.
456.
Defendant placed into the stream of commerce its aforesaid device, which was
defective in its labeling and warnings, as previously pleaded.
457.
Defendant placed into the stream of commerce its aforesaid device, which was
defective in its testing and approval, as previously pleaded.
458.
At the time the device left the possession of Defendant it was in an unreasonably
dangerous and defective condition for application for robotic prostatectomy using
monopolar energy.
459.
Despite the fact that Defendant knew or should have known that the Da Vinci
Robotic surgery platform using monopolar current had increased the risk of
serious injury and/or death, Defendant continued to promote and market the Da
Vinci Robotic surgeries to consumers, including Plaintiffs, when safer and more
effective methods of treatment were available.
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460.
The Defendant designed, tested, manufactured, packaged, marketed, distributed,
promoted, and sold the Da Vinci Robot, placing the Da Vinci Robotic surgeries into
the stream of commerce.
461.
The Da Vinci Robot was designed, tested, inspected, manufactured, assembled,
developed, labeled, sterilized, licensed, marketed, advertised, promoted, sold,
packaged, supplied and/or distributed by Defendant in a defective and
unreasonably dangerous condition to consumers, including the Plaintiff.
462.
The Da Vinci Robot was expected to reach, and did reach, users and/or
consumers, including Plaintiffs, without substantial change in the defective and
unreasonably dangerous condition in which it was manufactured and sold.
463.
Plaintiffs’
surgeons used the Da Vinci Robotic surgery platform including
monopolar current as instructed by and certified by and in the foreseeable manner
normally intended, recommended, promoted, and marketed by Defendant.
464.
The Da Vinci Robotic surgery platform was unreasonably dangerous in that, as
designed, it failed to perform safely when used by ordinary consumers, including
Plaintiffs’ surgeons, including when it was used as intended and in a reasonably
foreseeable manner.
465.
The Da Vinci Robotic surgery was unreasonably dangerous in that, as designed,
the risks of serious injury posed by its monopolar current risks exceeded any
benefit the Robotic approach was designed to or might in fact bestow.
466.
The Da Vinci Surgical Robot was defective in its design in that it neither bore, nor
was packaged with, nor accompanied by, warnings adequate to alert the medical
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community, including Plaintiffs’ surgeons, to the risks described herein, including,
but not limited to, the risk of serious injury and/or death, including bowel, bladder,
ureteral, or vascular injury, posed by its monopolar current risks. The Da Vinci
Robot was not accompanied by adequate labeling, instructions for use and/or
warnings to fully apprise the medical, hospital, operating room and/or scientific
communities, and potential patients, including Plaintiffs, of the potential risks and
serious side effects associated with its use, thereby rendering Defendant liable to
the Plaintiffs.
467.
There were safer alternative energy modalities available including bipolar energy
and ultrasonic energy.
468.
Although Defendant knew or should have known of the defective nature of its Da
Vinci Robotic surgery platform using monopolar current, it continued to design,
manufacture, market, and promote the use of its Da Vinci Robotic surgery
platform so as to maximize sales and profits at the expense of the public health
and safety. Defendant thus acted with conscious and deliberate disregard of the
foreseeable harm caused by the continued use of monopolar energy on its robotic
platform.
469.
Plaintiffs could not, through the exercise of reasonable care, have discovered the
risk of serious injury and/or death associated with and/or caused by the Da Vinci
Robotic surgery platform featuring monopolar current. Plaintiffs, if aware of these
additional risks, could have chosen surgical procedures with similar efficacies but
without these additional risks. As a result, Plaintiffs suffered the personal injuries
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described herein.
470.
Information given by Defendant to the medical community and to the consumers
concerning the safety and efficacy of the Da Vinci Robotic surgery platform,
especially the information contained in the advertising and promotional materials,
did not accurately reflect the serious side effects.
471.
As a direct and proximate consequence of Defendant's negligence, willful, wanton,
and/or intentional acts, omissions, misrepresentations and/or otherwise culpable
acts described herein, the Plaintiffs sustained injuries and damages alleged herein.
472.
Defendant's conduct in continuing to market, sell and distribute the aforesaid
devices after obtaining knowledge they were defective and not performing as
represented and intended, showed complete indifference to and/or a conscious
disregard for the safety of others justifying an award of punitive damages for
aggravating circumstances in such a sum which will serve to deter defendant and
others from similar conduct in the future.
473.
No alerting or cognizable event occurred that could have or should have alerted
Plaintiff to the inadequate warning given by Intuitive with regard to the Catheter
and Endoscope until after June 1, 2011. Plaintiff was reasonably unaware that
Intuitive played any role in causing his injury until on or after that date.
SECOND CAUSE OF ACTION
STRICT PRODUCTS LIABILITY-INADEQUATE WARNING
474.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
475.
Defendant is the manufacturer, designer, distributor, seller, and/or supplier of the
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Da Vinci Surgical Robot.
476.
The surgical robot manufactured, designed, distributed, sold, and/or supplied by
the Defendant and used pursuant to the Defendant’s advice, instruction, and/or
consent was defective due to inadequate warning or instruction because the
Defendant knew or should have known that the devices created significant risks of
serious bodily harm to consumers and failed to adequately warn consumers of
such risks.
477.
As a direct and proximate result of the use of the Da Vinci surgical robot, as
manufactured, designed, sold, supplied, and introduced into the stream of
commerce by Defendant and subsequently altered upon the advice, instruction,
and/or consent of the Defendant, Plaintiff suffered serious physical injury, harm,
damages, and economic loss and will continue to suffer
478.
Defendant’s actions and omissions as alleged in this Complaint demonstrate a
flagrant disregard for human life, warranting the imposition of punitive damages.
479.
No alerting or cognizable event occurred that could have or should have alerted
Plaintiff to the inadequate warning given by Intuitive with regard to the Catheter
and Endoscope until after June 1, 2011. Plaintiffs were reasonably unaware that
Intuitive played any role in causing his injury until on or after that date.
THIRD CAUSE OF ACTION
BREACH OF WARRANTY
(Intuitive)
480.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
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481.
Defendant expressly warranted that the Da Vinci Surgical Robots were safe and
effective medical devices.
482.
The Surgical Robots manufactured and sold by Defendant did not conform to
these express representations because Defendant knew or should have known
that the devices would cause serious injury to Plaintiffs.
483.
No alerting or cognizable event occurred that could have or should have
alerted Plaintiff to the inadequate warning given by Intuitive with regard to the
Catheter and Endoscope until after June 1, 2011. Plaintiffs were reasonably
unaware that Intuitive played any role in causing his injury until on or after that
date.
484.
As a direct and proximate result of Defendant’s breach of warranty, Plaintiffs have
suffered serious physical injury, harm, damages, economic loss and will continue
to suffer such harm, damages, and economic loss in the future
FOURTH CAUSE OF ACTION
STATUTORY PRODUCTS LIABILITY
485.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
486.
The Defendants, jointly and severally, have violated the provisions concerning
product liability pursuant to O.R.C. 2307.71 et seq., entitling Plaintiffs who are
Ohio residents, to relief.
FIFTH CAUSE OF ACTION
Breach of Implied Warranty
(Intuitive)
487.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
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this Complaint as if fully rewritten herein.
488.
At the time Defendant designed, manufactured, marketed, sold, and distributed
the Da Vinci Surgical Robot for use upon Plaintiffs, Defendant knew or should have
known of the intended use for the Catheter and the Endoscope, as used pursuant
to the advice, instruction, and/or consent of the Defendant, yet still impliedly
warranted that the altered Catheter and Endoscope were of merchantable quality
and safe for such use.
489.
Plaintiffs reasonably relied upon the skill and judgment of Defendant as to whether
the Surgical Robot, as used according to the advice, instruction, and/or consent of
the Defendant, were of merchantable quality and safe for their intended use and
upon Defendant’s implied warranty as to such matters.
490.
Contrary to such implied warranty, the Da Vinci Surgical Robot, as used according
to the advice, instruction, and/or consent of the Defendant, was not of
merchantable quality or safe for its intended use.
491.
No alerting or cognizable event occurred that could have or should have alerted
Plaintiff to the inadequate warning given by Intuitive with regard to the Catheter
and Endoscope until after June 1, 2011. Plaintiffs were reasonably unaware that
Intuitive played any role in causing his injury until on or after that date.
492.
As a direct and proximate result of Defendant’s breach of warranty, Plaintiffs
suffered serious physical injury, harm, damages and economic loss and will
continue to suffer such harm, damages, and economic loss in the future.
SIXTH CAUSE OF ACTION
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(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen.
Weight, Subramanian, Aron, El-Hayek, and Henderson)
493.
Plaintiffs incorporate all previous paragraphs as if fully rewritten herein.
494.
Plaintiff states that Defendants CCF, Cosgrove, Kaouk, Goel, Zhao, Gill, Hafron,
Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Weight, Nguyen,
Subramanian, and Henderson and their agents and/or employees were
negligent, reckless, and/or wanton and departed from the accepted standards of
medical care in failing to properly monitor, diagnose, and treat Plaintiff which
negligence and departures from the accepted standards of medical care
proximately resulted in injuries and damages to the Plaintiffs as pled herein.
495.
Plaintiffs state that as a direct and proximate result of the Defendants’
departures from the accepted standards of medical care, its wrongful conduct
and malpractice, the Plaintiffs sustained severe and permanent injuries; that
their injuries are disabling and permanent; that they been deprived or their
ability to enjoy life; that they have suffered economic and non-economic
damages in the past and in the future; and that they have suffered great mental
anguish and emotional distress.
496.
Plaintiffs state that as a direct and proximate result of the Defendants’
negligence and departures from the accepted standard of care, their wrongful
conduct and malpractice, as aforesaid, Plaintiffs have been required to submit to
numerous and extensive medical treatment, x-rays, examinations, surgeries,
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treatments, hospitalizations, including the taking of medications in an effort to
control the conditions from which they suffer; that they have incurred medical
and medicinal expenses to date in an amount yet to be determined; and that
they will be required to incur additional medical expenses into the future to an
extent that cannot be determined, nor with reasonable diligence ascertained at
this time, but are reasonably certain to occur.
497. Further pleading, Plaintiffs state that as a direct and proximate result of the
Defendants’ negligence and departures from the accepted standards of medical
care, their wrongful conduct and malpractice, they have been required to limit
their normal activities and will be required to limit their normal activities into the
future, that they have suffered great physical pain of the body and suffering of
the mind and will continue to suffer great physical pain of the body and suffering
of the mind into the future.
SEVENTH CAUSE OF ACTION
(Wrongful Death and Survivorship Claim of Donal Sposit)
(Against Defendants Cleveland Clinic Foundation, Kaouk, Hegarty, and
Wood)
498. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
499. Carol Sposit is the executor of the Estate of Donal Sposit having been appointed
same in the Cuyahoga County Probate Court in Case No. 2010EST160085 on the
21st day of July, 2010.
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500.
Plaintiff Carol Sposit states that as a direct and proximate result of the negligent,
reckless, wanton, will, and intentional conduct and medical negligence of
Defendants CCF and Kaouk, Hegarty, and Wood, Plaintiff’s decedent Donal Sposit
met his death on July 5,
2010.
501.
The Plaintiff’s decedent left surviving a spouse and other next-of-kin for whose
benefit this action is brought.
502.
As a direct and proximate result of the wrongful conduct and medical malpractice
of Defendants CCF, Kaouk, Hegarty, and Wood, jointly and severally, the
decedent’s wife and other next-of-kin have been deprived of the decedent’s loss
of support, loss of services, loss of society, loss of companionship, loss of
consortium, loss of care, loss of assistance, loss of attention, loss of protection,
loss of advice, loss of guidance, loss of counsel, loss of instruction, loss of
training, loss of education, loss of prospective inheritance, and have suffered
emotional trauma and mental anguish by reason of the wrongful death of the
decedent.
503.
Plaintiff Carol Sposit has incurred funeral expenses in the approximate sum of
$10,000.00 by reason of the wrongful death of the decedent.
EIGHTH CAUSE OF ACTION
(Survivorship Claim of Donal Sposit)
(Against Defendants Cleveland Clinic Foundation, Kaouk, Hegarty, and
Wood)
504. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
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505. As a direct and proximate result of the joint and several wrongful conduct of
Defendants CCF, Kaouk, Hegarty, and Wood, as aforesaid, Donal Sposit suffered
severe and permanent injuries resulting in his death.
506. As a direct and proximate result of the joint and several conduct of the
Defendants CCF, Kaouk, Hegarty, and Wood as aforesaid, Donal Sposit suffered
a complete loss of enjoyment of life.
507. As a direct and proximate result of the joint and several wrongful conduct of
Defendants CCF, Kaouk, Hegarty, and Wood as aforesaid Donal Sposit suffered
extreme pain, suffering, mental anguish, intentional/negligent inflection of
emotional distress and a loss of income and earning capacity in an amount yet to
be determined.
NINTH CAUSE OF ACTION
LOSS OF CHANCE OF RECOVERY
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
Pursuant to OJI CV 417.15; Geeasman v. St. Rita’s Medical Center, 183 Ohio
App.3d 555, 2009-Ohio-3931, 917 N.E.2d 867; Roberts v. Ohio Permanente
Medical Group, 76 Ohio St.3d 483, 1996-Ohio-375, 668 N.E.2d 480;
McMullen v. Ohio State Univ. Hosp., 88 Ohio St.3d 332, 2000-Ohio-342, 725
N.E.2d 1117.
508. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
509. The use of robotic surgery instead of open surgery by an experienced and
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qualified physician reduced the chances of the Plaintiffs’ recovery as aforesaid.
510. The lack of medical instruction of alternatives reduced chances of recovery as
aforesaid, proximately resulted in the injuries and damages aforesaid.
511. The aforesaid care and treatment was not only negligent but was reckless,
wanton, willful, intentional/malicious entitling the Plaintiffs to punitive damages.
TENTH CAUSE OF ACTION
CIVIL BATTERY
Pursuant to OVI CV 429.03; Love v. Port Clinton, 37 Ohio St.3d 98, 524
N.E.2d 166 (1988); Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983)
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
512. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
513. The surgical procedures and treatment of the Plaintiffs by unqualified and
untrained doctors was intentional.
514. As a proximate result of the battery the Plaintiffs are entitled to compensatory and
punitive damages, with or without other comparable injuries and damages, which
they aver they have also incurred.
ELEVENTH CAUSE OF ACTION
DUTY TO DISCLOSE / NOT DISCLOSE / NOT CONCEAL / FIDUCIARY
DUTIES BREACHED
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
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Pursuant to Estate of Leach v. Shapiro, 13 Ohio App.3d 393, 469
N.E.2d 1047 (1984); Ault v. Hall, 119 Ohio St 422, 434, 164 N.E.
518, 522 (1928); Turner v. Children’s Hospital Inc., 76 Ohio
App.3d 541, 552, 602 N.E.2d 423 (1991); Phillips v. Good
Samaritan Hospital, 65 Ohio App.2d 112, 416 N.E. 2d 646 (Ohio
App. 2d Dist. 1979); Hanshaw v. River Valley Health System, 152
Ohio App.3d 608, 2003-Ohio-2358, 789 N.E.2d 680, 687; Congrove
v. Holmes, 37 Ohio Misc. 95, 103, 308 N.E.2d 765, 770 (Ohio C.P
1973); American Jurisprudence 2d 1981, § 298, Physicians,
Surgeons, and other healers, 167; 49 ALR 3d 501, 504; Leuttke v.
St. Vincent Mercy Medical Center, 6th Dist. No L-05-1190, 2006-
Ohio-3872 (Ohio App. 2006) (physicians, must disclose their
experience and level of training to patients; Hernandez v. Smith,
552 F.2d 142 (5th Cir. 1972); Bach v. DiCenzo, 8th Dist. No. 84396,
2005-Ohio-2611 (Ohio App.2005); Truck Insurance Exchange v.
County of Los Angeles, 95 Cal App. 4th 13, 21-22, 115 Cal.
Rptr.2d 179 (Cal App 2002); Gillette v. Tucker, 67 Ohio St. 106,
121-122, 65 N.E. 2d 865 (1902); Gaines v. Preterm-Cleveland,
Inc., 33 Ohio St.3d 54, 56, 514 N.E.2d 709 (1987).
515.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
516.
The Defendants had an affirmative duty to disclose to the Plaintiffs any and all
material information about their diagnosis, examinations, tests, surgical results, all
those providing care to Plaintiffs, medical records, Plaintiffs’ conditions, and all
other matters before, during, and after of duties attendant upon all aforesaid
named Defendants.
517.
The Defendants, together with their employees and/or agents occupied a fiduciary
relationship, as well as the normal duties attendant to their status, professions,
and the facts alleged.
518.
The Defendants had an affirmative duty not to delay, conceal, obfuscate or
otherwise breach their duties to inform the Plaintiffs of all material matters before,
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during, or after the care and information requests described in the facts of their
case.
519.
The Defendants jointly and severally breached their duties to the Plaintiffs causing
them injury and damages as pled herein, and entitling the Plaintiffs to plead
damages including punitive damages, as proximate result of the breach of
duties/fiduciary duties to disclose to the patients and not to disclose to the
patients and not to conceal, delay, or deny that which Plaintiffs have a right to
know particularly in regard to one’s health, options for treatment, skill, training
and experience of all Defendants who treated or cared for Plaintiffs, medical
records information, billing information, complete facts and claim statuses about
their treatment and all other attendant duties to disclose and not conceal, delay,
or obstruct that which the Plaintiffs have a right to know.
TWELFTH CAUSE OF ACTION
BREACH OF CONTRACT / GUARANTEE
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
a. Pursuant to Lovely v. Percy, 160 Ohio App.3d 269, 2005-Ohio-
1591, 826 N.E.2d 909 (Ohio App. 2d Dist.) (a doctor and patient
can enter into a “satisfaction contract” that is separate and
distinct from the primary contract between a doctor and patient
for medical care. Further, a breach does not require the showing
of medical malpractice); Perna v. Pirozzi, 92 N.J. 446, 457 A.2d
431 (1983); OJI CV 501.01.
520. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
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521.
The Defendants and the Plaintiffs negotiated a contract wherein Defendants
guaranteed:
b.
The Robotic/Da Vinci machine would be utilized as the very best option given their
medical characteristics.
c.
That the surgeons were Board Certified and highly qualified to perform da Vinci
robotic surgeries safely and competently
522.
These guarantees were made to Plaintiffs and were material to entering into the
contract with Defendants.
523.
The guarantees such as risks and benefits, alternative treatments were put in
writing in a consent form and/or required to have been put into writing in a
consent form. The contract guarantees were material.
524.
The contract / guarantee was to be performed immediately and was breached in
total / within one (1) year.
525.
The actual performance by Defendants of the complete surgery, treatment, and
follow-up care was the subject matter of the contract and guarantee and was
material.
526.
The Plaintiffs had substantially performed at the time of Defendants’ breach.
527.
The Defendants breached the said contract / guarantee.
528.
The breaches proximately caused damages and injuries to Plaintiffs as pleaded
herein and caused or precipitated the tortious conducted included herein. Also, the
breach not only caused the aforesaid compensable injuries, but great emotional
damages and consequential damages.
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529. The aforesaid breaches of contract/guarantees were also contemporaneously and
subsequently accompanied by the tortious activities plead herein entitling the
Plaintiffs to punitive damages.
THIRTEENTH CAUSE OF ACTION
(Negligence/Negligence Per Se; Breach of Contract)
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Medicare, Anthem Blue Cross/Blue Shield; Ohio Department
of Job & Family Services and United Health Care and any other health care
payor )
Pursuant to Insco v. Aetna Health & Life Insurance, 673 F. Supp. 2d 1180
(D. Nev. 2009); Helen Meyers v. Health Plan of Nevada, Dist. Ct. Clark Co.,
Nevada, Case No. A583799 (2009-2013)
530. Plaintiffs incorporate the allegations of the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
531. Plaintiffs Chyi, Perrotti, Razem, Sposit at the time of the surgery at issue in this
case, were insured by a policy of medical/health care insurance issued by
Defendant Medicare.
532. Plaintiff Mergler at the time of the surgery at issue in this case, was insured by a
policy of insurance issued by Blue Cross/Blue Shield.
533. Plaintiff Williams at the time of the surgery at issue in this case was insured by a
policy of insurance issued by the Ohio Department of Job & Family Services
534. Plaintiff Razem at the time of the surgery at issue in this case was insured by a
policy of insurance issued by United Health Care.
535. Defendants Medicare, BC/BS, ODJFS, UHC, and other unknown health care payors
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are managed care organizations
536.
Defendants engage in managing the medical care of their insureds/members.
537.
Managed care is quality driven health care and is intended to focus on improving
and maintaining the health of the insured member.
538.
Defendants contract with certain medical providers to provide health care services
to their insureds. Those providers are commonly referred to as contracted
providers.
539.
Under the terms of the contract with the Defendants, the contracted provider
agrees to provide health care to insurers and members of the Defendants from
qualified providers, for qualified medical services, and the insurer will pay for same
to the extent provided.
540.
Defendants agree to pay the contracted provider for the services provided to their
insurers.
541.
Defendants agree to require and/or encourage their insurers to receive health care
from the contracted providers.
542.
The insured or member is one of the primary and intended beneficiaries of
Defendants’ contract with the contracted provider.
543.
The insured or member ha a reasonable expectation Defendants will require that:
d.
The contracted provider follow generally accepted clinical and medical practices;
e.
The contracted provider will provide quality health care to the insured; and
f.
The contracted provider will not engage in fraudulent or deceptive practices.
544.
Defendants have the right under the contract to evaluate, audit, monitor or
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supervise their contracted providers to ensure that contracted providers provide
quality and reasonable health care to the Defendants’ insured/members.
545.
Defendants can terminate their contract with any contracted provider who
engages in unsafe, fraudulent, deceptive or unreasonable business practices.
546.
To protect the interest of its insured, industry standards provides that Defendants
will evaluate, audit, monitor and supervise its contracted provider to ensure that
the contracted provider is using reasonable practices in the treatment of its
insured/members.
547.
To protect the interest of the insured, Defendants had to adopt and implement a
quality assurance program.
548.
Industry standards provide that Defendants adopt and implement a quality
assurance program.
549.
Through quality assurance, Defendants must direct, evaluate, and monitor the
effectiveness of health care services provided by the contracted provider.
550.
Defendants have contracted with the Cleveland Clinic, and the doctors, and other
employees associated with the hospital for purposes of having their insurers
receive medical care.
551.
At all pertinent times, Defendants knew, or should have known, of the improper
practices of Defendants as set forth above.
552.
In their relationship with the Cleveland Clinic, the doctors, and other employees
associated with the CCF, Defendants, including Medicare, ODJFS, BC/BS and UHC,
and other insurance payors, did not reasonably conduct quality assurance
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including evaluation, audit, monitor, and supervise the Defendants and their
practice.
553.
Defendants, or their affiliated physicians, did not terminate their relationship with
CCF or other Defendants to discontinue the infliction of these unauthorized
practices upon other victims.
554.
Defendants did not take reasonable steps to stop the Defendants’ practices or to
warn their insured/members of the practices.
555.
Ohio Revised Code 1751.73 imposed on all Health Insuring corporations operating
in the State of Ohio a duty to “implement [a] quality assurance program.”
556.
The statute provides that:
Each health insuring corporation providing basic health care services shall
implement a quality assurance program for use in connection with those
policies, contracts, and agreements providing basic health care services.
Each health insuring corporation required to implement a quality assurance
program shall annually file a certificate with the superintendent of insurance
certifying that its quality assurance program does all of the following:
a)
Identifies a corporate board or committee or designates an
executive
staff
person responsible
for
program
implementation and compliance;
b)
Includes a process enabling the selection and retention of
quality providers and health care facilities through
credentialing, re-credentialing, and monitoring procedures;
c)
Provides for ongoing monitoring of the quality assurance
program;
d)
Assurance a process for compliance by any entity or entities
with which the health insuring corporation contracts for
services;
e)
Includes a process to take remedial action to correct quality
problems.
557. The statute evinces the clear intent of the legislature to protect insureds like
Plaintiffs against the kinds of harm the Plaintiffs have pled herein.
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558.
The statute, therefore, creates and/or recognizes a legal duty to the Plaintiffs on
the part of Medicare, ODJFS, BC/BS, UHC, and other health care payors.
559.
Plaintiffs are with a class of persons intended to be protected by R.C. 1751.73 and
other statutes and regulations of the State of Ohio.
560.
The injuries Plaintiffs have sustained are the type that were intended to be
prevented by R.C. 1751.73 and other statutes and regulations of the Station of
Ohio.
561.
Medicare, ODJFS, BC/BS, UHC, and other health care payors violated their duties
to the Plaintiffs by failing to properly investigate and remedy the problems with
Defendants.
562.
Defendants Medicare, ODJFS, BC/BS, UHC, and other health care payors, by
coming into Ohio, as well as perhaps other statutes in other states, imposed their
legal duty upon tier said insurer.
563.
By being allowed to provide insurance in the State of Ohio there is a duty to
protect the public, including Plaintiffs; said duty being breached herein.
564.
As a proximate and legal cause of Defendants’ negligence, Plaintiffs, as set forth
herein, have sustained damages to which Plaintiffs are entitled to recover, as
aforesaid.
565.
This cause of action has a minimum six (6) year statute of limitations, again from
the date of discovery.
FOURTEENTH CAUSE OF ACTION
LACK OF INFORMED CONSENT
(RATIFICATION AND ADOPTION)
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(Medical Negligence as to Cleveland Clinic Patients -Mergler, Perrotti,
Razem, Against Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk,
Goel, Zhao, Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson,
Wood, Weight, Subramanian, Arnon, El-Hayek, and Henderson)
Pursuant to OJI 417.05 and Ohio Rev. Code § 2317.54 (per se);
Nickell v. Gonzalez, 17 Ohio St.3d 136, 477 N.E.2d 1145 (1985);
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Bruni v.
Tatsumi, supra.
566.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
567.
The Defendants failed to inform Plaintiffs about the material risks in the surgery,
including:
g.
True risks of pain, suffering, disability, and injury.
h.
True alternative and preventable methods of treatment.
568.
The risks and dangers that should have been disclosed actually occurred and were
approximate cause of the injuries, harm, and damages to the Plaintiffs.
569.
A reasonable person in the Plaintiffs’ position would have decided against the
surgery, method, manner, and actual plan of treatment and follow-up if the
material risks independent and inherent to the surgery, and the actual means used
for surgery had it been disclosed to them prior to the actual treatment or lack of
treatment by the method wrongly concealed but undertaken by Defendants.
570.
Defendants did not disclose material risks to the Plaintiffs.
571.
The lack of informed consent was negligent, reckless, wanton, willful, and
malicious conduct.
572.
As a proximate result the Plaintiffs have suffered the injuries and damages
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aforesaid and is entitled to punitive damages as well.
573. The Defendants lacked good faith and failed to comply with Ohio Rev. Code §
2317.54, entitling Plaintiffs to judgment as a matter of law and entitling them to
compensatory and punitive damages for the injuries and damages averred by the
Plaintiffs herein.
574. The Defendants jointly and severally adopted and/or ratified the wrongful acts of
each other.
FIFTEENTH CAUSE OF ACTION
NEGLIGENT/WRONGFUL CREDENTIALING
FAILURE TO DISCIPLINE/RATIFICATION
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
Pursuant to Ohio Rev. Code § 2305.24; Schelling v. Humphrey,
123 Ohio St.3d 387, 2009-Ohio-4175, 916 N.E.2d 1029; Clark v.
Southview Hosp. & Family Ctr., 68 Ohio St.3d 435, 1994-Ohio-519,
628 N.E.2d 46; Albain v. Flower Hosp., 50 Ohio St.3d 251, 553
N.E.2d 1038 (1990); Richards v Kerlakian, 162 Ohio App.3d 823,
2005-Ohio-4414, 835 N.E.2d 768; Lewis v. Sarin, Mont. C.P. No.
2005 CV 1936 (Ohio C.P. Jan. 7, 2011); Browning v. Burt, 66 Ohio
St.3d 544, 566, 1993-Ohio-178, 613 N.E.2d 993; Joint Commission
on Accreditation of Health Care Organization Standards (2002),
294 M.S. 512 et seq.
575.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
576.
The Defendants and agents and employees, knowingly misrepresented the
credentials of Defendants.
577.
Defendants advertised the credentials of Defendants and their urology department
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falsely, thereby waiving any claim of privilege to the credentialing process,
reviews, and documents.
578.
The Defendants’ lack of represented credentials were a substantial factor in
proximately causing the torts, non-torts claim, injuries, and damages to the
Plaintiffs. Plaintiffs never would have undergone the surgeries had they known
Defendants grossly misrepresented them amount of training to use the da Vinci.
579.
The Defendants recognized Defendants’ lack of credentials and the credentialing
process was negligently, reckless, wantonly, willfully, or intentionally below the
standard of care for such credentialing, and as to constructive fraud as well.
580.
The Defendant failed to maintain the Joint Commission’s Accreditation Standards
and thereby forfeited any presumptions of lawful credentialing.
581.
The Defendants failed to take any action, disclose, correct, or otherwise conduct
adequate lawful peer review of the facts and competency of the Defendant doctor.
Any confidentiality claim has been waived under the crime / fraud exception, and
advertisements, publications and representations made by and their physicians,
employees, and agents.
582.
As a proximate result of the acts and omissions of the Defendants listed above,
the Plaintiffs are entitled to compensatory and punitive damages with or without
other comparable injuries and damages, which they aver they have also incurred.
SIXTEENTH CAUSE OF ACTION
NEGLIGENT REFERRAL/SUPERVISION
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
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Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
Pursuant to Berdyck v Shinde, supra, 583 Am. Jur. 2d (2010), Physicians,
Surgeons, and Other Healers, D, 5273; Reed v. Bascon 124 Ill.2d 386; 530
N.E.2d 417 (Ill. 1988) (a referring physician will be held liable for the acts
of the other physician where the referral was itself negligent); Bach v
Dicenzo, supra; Hernandez v. Smith, supra; Luettke v St. Vincent Medical
Center, supra; Faulkner v Pezeshki, 44 Ohio App.2d 186, 337 N.E. 2d 158
(1975).
583.
Plaintiff incorporates the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
584.
The Defendant doctor was inadequately trained to perform the Da Vinci robotic
surgery for the Plaintiff.
585.
All Defendants had duties not to refer the Plaintiff to inadequately trained
surgeons.
586.
Defendants had a duty to supervise the surgery performed upon the Plaintiff.
587.
All Defendants were reckless, willful, wanton, intentional, and malicious in the
referral and supervision of the Plaintiff’s surgery.
588.
As a proximate result of the referral and lack of supervision the Plaintiff
proximately suffered injuries and damages as alleged herein.
SEVENTEENTH CAUSE OF ACTION
CORPORATE LIABILITY AND INADEQUATE
POLICIES/STANDARDS/PROCEDURES
FAILURE TO FOLLOW
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood,
Weight, Subramanian, Arnon, El-Hayek, and Henderson)
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i. Pursuant to Gray v. Grandview Hosp., 2d Dist. No. 5849, 1979
Ohio App. LEXIS 8753; Clark v. Southview Hosp., supra; Eiford v.
Burt, 2d Dist. No. 12392, 1994 Ohio App. LEXIS 3792; Laderer v.
St. Rita's Medical Ctr., 122 Ohio App.3d 587, 702 N.E.2d 476
(1997); Hannola v. Lakewood, 68 Ohio App.2d 61, 426 N.E.2d
1187 (1980); Vanderpool v. Univ. Hosp., Inc., 1st Dist. No. C-
020020, 2002-Ohio-5092; Nickler v. Mercy Med. Ctr., 5th dist. No.
2002CA00169, 2003-Ohio-545.
589.
Plaintiffs incorporates the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
590.
Defendants failed to implement adequate policies and procedures and/or failed to
follow policies and procedures for patient safety to meet represented standards of
care and to prevent fraudulent or false practice of medicine, billing, investigation,
credentialing, supervision and other causes of action averred herein.
591.
The failure to implement and enforce adequate policies and procedures
proximately caused injuries and damages averred to the Plaintiffs.
EIGHTEENTH CAUSE OF ACTION
FRAUD/MISREPRESENTATION/CONCEALMENT/CONSTRUCTIVE FRAUD
(Medical Negligence as to Cleveland Clinic Patients - Chyi, Eisnaugle,
Fulmer, Mergler, Perrotti, Razem, Sposit, Wade and Williams Against
Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk, Goel, Zhao,
Gill, Hafron, Kefer, Hegarty, Lee, Matthews, Stephenson, Wood, Nguyen,
Weight, Subramanian, Aron, El-Hayek, and Henderson)
Law: OJI 449.03, Burr v. Stark County Board of Commissioners, 23 Ohio St.
3d 69, 491 N.E. 2d 1101 (1986); Gaines v. Preterm-Cleveland, Inc., supra;
Hanes v. Giambrone, 14 Ohio App. 3d 400, 471 N.E. 2nd 801 (1984)
592.
Plaintiffs incorporate all the allegations in the previous and subsequent
paragraphs of this Complaint as if fully rewritten herein.
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593.
The Defendants jointly and severally, as providers of medical care and medical
devices/procedures to the public in general, and Plaintiffs in particular, have a
special confidential relationship with Plaintiffs which afford the Defendants the
powers, means, and opportunities to take advantage and exercise undue influence
and control over Plaintiffs.
594.
The relationship of Plaintiffs and public to the Defendants are value to social,
economic, and welfare interests based upon an enforced confidence of the
Plaintiffs and public in the Defendants and the Defendants joint and several
representatives about the medical matters, care, follow-up care and billings
provided by the Defendants.
595.
The breach of these valuable social, economic, welfare interests, and enforced
concepts of trust and fiduciary relationships, along with the expressed
representation by Defendants caused injury and damages to the Plaintiffs.
596.
Unlike the fraud/misrepresentation/concealment claim made herein, the elements
of constructive fraud do not require knowledge on the part of the Defendants to
be actionable.
597.
Defendants made false representations of facts and concealment of facts to
Plaintiff as to the competency, care and treatment, the information provided for
informed consent, credentialing, and other facts alleged in the facts.
598.
Defendants’ representation and concealment were made with knowledge of their
falsity or with utter disregard and recklessness about their falsities that knowledge
may be concluded.
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599. The false, misleading, and/or concealment of facts were done when there was a
duty to disclose.
600.
The representation and concealment was material to the transaction, which
Plaintiffs’ agreement to submit to medical care and payment of fees. The Plaintiffs
were justified in relying on the representations and concealments and did, in fact,
so rely.
601. The Plaintiffs were proximately injured and damages by their reliance on the
representations and concealments.
NINETEENTH CAUSE OF ACTION
MEDICAL RECORDS VIOLATIONS AND NON DISCLOSURE
(Medical Negligence as to Cleveland Clinic Patients -Mergler, Perrotti,
Razem Against Defendants Cleveland Clinic Foundation, Cosgrove, Kaouk,
Goel, Zhao, Gill, Hafron, , Kefer, Hegarty, Lee, Matthews, Stephenson,
Wood, Weight, Subramanian, Arnon, El-Hayek, and Henderson)
Pursuant to Ohio Rev. Code 3701.74; Ruth v. Moncrief, 2d Dist. No. 18479,
2001-Ohio-1709; Johnson v. Hillcrest Health Center, 2003 OK 16; 70 P.3d
811 (Okla. 2003), Health Information Portability and Accountability Act of
1996 (HIPAA)
602. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
603. The Defendants are under a duty to correctly make, maintain, and provide, correct
entries in medical records.
604. Other health care providers, payers, and insurers have rights to these records and
are fully warranted in depending upon the reliability and trust otherwise of said
records.
605. There is no more important duty than to make accurate medical records, prevent
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their loss or destruction, as physicians are fully warranted in depending upon the
reliability and trustworthiness of such records, including the subsequent treatment
of the patient, other physicians, and health care providers.
606. The Defendants’ breach of their duty to create and the medical records of the
Plaintiff have proximately caused injuries and damages (including punitive).
TWENTIETH CAUSE OF ACTION
ABANDONMENT
(Medical Negligence as to Cleveland Clinic Patients -Eisnaugle, Fulmer,
Mergler, Razem, , Wade and Williams Against Defendants Cleveland Clinic
Foundation, Cosgrove, Kaouk, Goel, Zhao, Gill, Hafron, Kefer, Hegarty,
Lee, Matthews, Stephenson, Wood, Nguyen, Weight, Subramanian, Aron,
El-Hayek, and Henderson)
Pursuant to Gillette v. Tucker, supra; Newman v. Sonnenberg, 2003 UT App
401, 81 P.3d 808, 810 (UT. App 2003); Ricks v. Budge, 91 Utah 307, 64 P. 2d
208 211-212 (UT 1937); Walters v. Middletown Hospital Association, 12th
Dist. No. CA84-07-083, 1985 Ohio App Lexis 6157 (12th Dist. 1985); Maddon v.
Albainy, 8th Dist. No. 55301, 1989 Ohio App Lexis 1445 (April 20, 1989); Lee
v. Dewbre, 362 S.W. 2d 900, 901, 903 (Tex. App 1962).
607. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
608. Defendants were responsible for all follow up care and represented they would
provide same.
609. Defendants abandoned all/or some of the required follow up care after the
surgery.
610. Defendants did not realize the extent of Plaintiffs’ medical condition and failed to
treat them personally with the necessary care, experience, training, and education.
611. As a proximate result of the wrongful conduct of the aforesaid Defendants,
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Plaintiffs suffered injuries and damages as aforesaid.
TWENTY-FIRST CAUSE OF ACTION
DECLARATORY
(Medical Negligence as to Cleveland Clinic Patients -Eisnaugle, Fulmer,
Mergler, Razem, , Wade and Williams Against Defendants Cleveland Clinic
Foundation, Cosgrove, Kaouk, Goel, Zhao, Gill, Hafron, Kefer, Hegarty,
Lee, Matthews, Stephenson, Wood, Nguyen, Weight, Subramanian, Aron,
El-Hayek, and Henderson)
(Declaratory Relief / Declaration of Unconstitutionality
Federal Questions / Supplemental Jurisdiction over State-Law Claims)
612. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
613. Plaintiffs pray that the Court issue declaratory judgment and relief and an order
pursuant to R.C. 2721.01, et seq., Federal and Ohio Civil Rules 1, 2, 7, 8, 9, 10,
11, 12, 13, 14, 15, 16, 17, 18, 19, 19.1, 20, 21, 22, 23, 26-37, 38, 3, 41 , 42, 47,
48, 49, 50, 51, 54, 55, 56, 57, 58, 59, and 60, and the unlawful provisions of the
Ohio Medical Malpractice Acts, as amended, and “Tort Reform Act,”11 especially as
to involvement or non-involvement of parties; inclusion in the claim of unknown
and unpleaded parties, requiring the Defendants to plead, by way of answer,
11 The Medical Malpractice Tort Reform laws, known as S.B. 281, effective April 9, 2003 (including negligent
credentialing statute, i.e. R.C. 2305.251), and H.B. 215, effective September 13, 2004. The declaratory judgment
relief sought also seeks that S.B. 120 (joint and several liability), effective April 9, 2003, and S.B. 80 (“tort
reform”), effective April 7, 2005, (including punitive damages, R.C. 2315.21), be declared unconstitutional into, or
as they relate to medical malpractice claims in general (including declaring the invalidity of compensatory damage
caps that are totally inadequate for these Plaintiff, and the destruction of the collateral source evidentiary rules which
constitutes a denial of due process and equal protection, unconstitutional takings of future damages awards through
judicially imposed reductions, statutory reductions for failure to join “necessary” parties, imposition and assignment
of liability to “empty chair” defendants (i.e., R.C. 2307.22-2307.28) (unless determined not applicable to the case at
bar, as pleaded herein), discriminatory subrogation, and imposition of other unconstitutional substantive and
procedural requirements), and to this case in particular, as well as all of said acts being declared unconstitutional in
their entirety, jointly and severally as to all tort claims, or as they relate to these claims at bar. The case of Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 240, supports this claim. The full challenge
with a separate outline will be filed within 30 days. The outline will point out the errors of the Court in the first
holding, which equated governmental defendants with private defendants, did not address the right to petition
government and prior restraint on speech, special privileges, and other issues.
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cross-claim, counterclaim, or other pleading or motion, identify, and produce
evidence on the liability of all potential parties, or any unnamed persons, entities,
or otherwise who may be liable to the Plaintiff or defendants, jointly or severally,
or who otherwise are suitable, necessary or indispensable
(indispensable and
permissive parties and claims) for joinder, for all claims necessary for a full,
complete and timely adjudication of all causes and claims, including defenses,
subrogation, indemnification, adjudication of all causes of action, contribution to
any party or potential party to the litigation of any potential claim in this case,
which will allow the early and timely resolution of said issues at the pleading
stage, prohibition of any special immunities or privileges thereunder. This
declaration is sought prior to the actual litigation of the claims, as the issues are
ripe and will affect the litigation of this case as the issues raised are inherent to
the litigation process, and are especially imminent in the case at bar.12
614.
Plaintiffs pray the Court issue a declaratory order finding that the aforementioned
statutes are unconstitutional in whole or in part, denying equal protection, due
process, right to petition, freedom of speech, open courts, and many others
contrary to both the Ohio and United State Constitutions. Plaintiff pray the Court
issue a declaratory order finding that the aforementioned statutes are self-
contradicting, inconsistent, violate Ohio and United States Constitutions, common
law, existing statutory law, local rules of Court and Ohio Evidence Rules 102, 103,
104, 201, 301, 401-405, 408, 602, 607, 608, 611, 613, 616, and 801-806, as well
12 Issues are ripe. See Montgomery. C.P. Case Number 2009 CV 5176, J. Wiseman, (August 25, 2011), at pp. 7-8.
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as other evidence principles established at common law and/or by Constitution.
(Ohio Courts Act, Ohio Const. Article IV, § 5(B); Separation of Power Doctrine.)
United States Constitution I, V, and XIV Amendments
615.
The Plaintiffs maintain the right to bring a claim for the reasonable value of
medical expenses for the care and treatment of the decedent, as charged and not
as actually paid, including future care and treatment.13
616.
The Court should determine Ohio Rev. Code § 2323.41 to be unconstitutional
and/or a denial of equal protection as compared to other torts (i.e. Ohio Rev. Code
§ 2315.20), and as violative of collateral benefits evidentiary rules. The Court
should further declare Ohio Rev. Code
§ 2323.43 unconstitutional under the
federal and Ohio constitutions.
617.
Should the Court determine that the Defendants have the right to present any said
claims, the Court should further order that they proceed to do so under the same
standards as Plaintiff against the Defendants, by utilizing their own lawyers,
naming their own expert and lay witnesses, following all procedures and
presenting all evidence as directed by the Federal and State Rules of Evidence,
Federal Civil Rules, common law, and the scheduling order of the Court, or forfeit
said rights if not presented by the pretrial conference or pursuant to Rule 26. Fed.
Civ. R. 16, 26(f).
13 Pursuant to Ohio Rev. Code § 2323.41(A). See Jacques v. Manton, Lucas Cty. App. No. L-08-1 096, 2009-Ohio-
1468, ¶11; Witzmann v. Adam (Jan. 10, 2009), Montgomery County C.P. No. 2005-CV-4086; Palm v. Burmeister,
Lucas Cty., C.P. No. CF 06-357; Almaugher v. King, Lucas Cty. C.P. No. G-4801-CI-000; Benson v. Nationwide
Mut. Fire Ins. Co., Fairfield Cty. C.P. No. 07 CV 56; Clansen v. Lester, Fulton Cty. C.P. 07CV0001223; Kissenger
v. Hollosi, Lucas Cty. C.P. No. G-4801-CI-200703285-000, but see Robinson v. Bates, 112 Ohio St.3d 17, 2006-
Ohio-6362.
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618.
Plaintiffs ask that the Court declare that the provisions of S.B. 281, relating to
Medical Malpractice Claims effective April
9,
2003, and H.B. 215, relating to
Medical Liability Actions effective September 13, 2004, and S.B. 120 (joint and
several liability) effective April 9, 2003, and the abrogation of the collateral source
rule, as well as applicable sections of S.B. 80 (tort reform), effective April 7, 2005,
are unconstitutional and in violation of the provisions of the Ohio and United
States Constitutions, both on their face, and as applicable to the Plaintiff in the
case at bar as well as all citizens of Ohio. The Court should acknowledge and
declare that these acts are violative of, among other provisions, the U.S.
Constitution, First, Fifth, and Fourteenth Amendments, the Ohio Constitution, the
right to equal protection established in Article I, Section 2; the right to a trial by
jury established in Article I, Section 5; the right to remedy, due process, and the
right to open courts established in Article I, Section
16; Article I, Section
2
prohibiting special rights, immunities and privileges for medical claim providers,
the single subject rule established in Article II, Section 15; and the Ohio Supreme
Court’s authority in prescribing the rules governing practice and procedure in
Article IV, Section
5, Due Process and Equal Protection, as well as any other
applicable reasons presented to the Court on their face and by way of motion by
the Plaintiff.
619.
The Attorney General of the State of Ohio will timely be served with a copy of this
Complaint pursuant to the requirements of Ohio Rev. Code § 2721.12 by certified
U.S. Mail service.
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TWENTY-SECOND CAUSE OF ACTION
(Declaratory Relief)
(Medical Negligence as to Cleveland Clinic Patients -Eisnaugle, Fulmer,
Mergler, Razem, , Wade and Williams Against Defendants Cleveland Clinic
Foundation, Cosgrove, Kaouk, Goel, Zhao, Gill, Hafron, Kefer, Hegarty,
Lee, Matthews, Stephenson, Wood, Nguyen, Weight, Subramanian, Aron,
El-Hayek, and Henderson)
620.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
621.
Plaintiffs seek declaration from the Court regarding the status of any allegedly
necessary parties, “empty chair” defendants, or other unnamed parties to whom
the Defendants herein may intend to assign any portion of liability in the case at
bar or claim that the presence of is necessary/indispensable for any purpose of
pleading, trial, or litigation, to find that there is no right to any set-off for any
Defendants by any non-named party.
622.
Plaintiffs ask the Court to declare for pleading and trial purposes, pursuant to Ohio
Rev. Code § 2307.23 and Ohio and Federal Civil Rule 27-22, that the named
Defendants cannot establish late affirmative defenses, or otherwise attempt to
shift liability or responsibility for Plaintiff’ injuries to any person who the
Defendants claim may be liable for all or part of the injuries and damage suffered
by the Plaintiff, or who Defendants claim is otherwise a necessary / indispensable
party for this action, but who has not already been named as a Defendant in this
action.
TWENTY-THIRD CAUSE OF ACTION
Ohio False/Misleading Advertising; Unfair and Deceptive Trade Practices
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623.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
624.
Unfair and deceptive trade practices include (but are not limited to) publishing
and/or somehow “placing before the public” any untrue, deceptive, or misleading
claims or assertions with respect to the insurance business
(and business in
general). 14
625.
All Defendants have engaged in unfair and deceptive acts or practices that are
unlawful. Defendants falsely misrepresented the level of care and quality of their
services. Defendants falsely misrepresented their credentials, surgical outcomes,
and the level of risk involved in robotic hysterectomies. Defendants knew, or
should have known, that Defendants were falsely misrepresenting information
about robotic hysterectomies. At the very least, Defendants should have had
some policy or procedure in place to confirm Defendants’ claims and
representations were true. Defendants failed to, however, create, implement, and
utilize any such policy or procedure - resulting in Plaintiffs’ injuries.
626.
All Defendants failed to properly verify Defendant surgeons’ credentials to provide
health care to Plaintiffs and other patients.
627.
The Ohio State Medical Board (“Medical Board”) can penalize physicians for false,
misleading, and deceptive advertising. Penalties include revocation of the
physician’s license to practice medicine. While there is no private right of action
14 (See O.R.C. §§ 3901.19 through 3901.26, 3963.09(A); Generally, any advertisement that falsely or misleadingly
induces a consumer to purchase a product, utilize a service, or refrain from purchasing a product or utilizing a
service is considered deceptive
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under this statute, it shows the condemnation and severe consequences of false
and misleading advertising by physicians and other health care providers. By
specifically delegating this power to the Medical Board, the Ohio legislature has
shown it strongly condemns health care providers’ false and misleading
advertising.
628.
Furthermore, Defendants should be held liable for Defendants’ misuse of the da
Vinci and misrepresentations about the da Vinci’s efficacy in robotic
hysterectomies. Not only did Defendants misrepresent the outcomes and success
rates of the da Vinci, but Defendants used those misrepresentations in their
consultations and recommendations to Plaintiffs and other patients. Defendants
knew, or should have known, that Plaintiffs and other patients were being told the
da Vinci had far better success rates and outcomes than was true.
629.
The Defendants also, through the media, represented the utility, benefits,
superiority, and preference of the Robotic/Da Vinci devices to the Plaintiffs and to
the public.
630.
The said advertising was false and misleading.
631.
The Plaintiffs, and other like and similar patients, and upon information and the
behalf of the public relied upon the information.
632.
The advertising was material to Plaintiffs and violates learned intermediary or
physicians consent about efficiency and safety.
633.
The false advertising proximately caused the injuries and damages to the
Plaintiffs.
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TWENTY-FOURTH CAUSE OF ACTION
DISGORGEMENT/UNJUST ENRICHMENT
Pursuant to Langer v. Langer, 123 Ohio App.3d 348, 355, 704 N.E.2d 275
(1997); Klaustermeyer v. Cleveland Trust Co., 89 Ohio St. 142, 105 N.E. 278
(1913); Globe-Wernicke Co. v. Safe-Cabinet Co., 110 Ohio St. 609, 144 N.E.
711 (1924) paragraph 3 of the syllabus; Klosterman v. Fussner, 99 Ohio
App.3d 534, 538, 651 N.E.2d 64 (1994); Pryor v. Webber, 23 Ohio St.2d 104,
263 N.E.2d 235 (1970); Hutchings v. Childress, 119 Ohio St.3d 486, 491, 895
N.E.2d 520 (2008); 76 Fed. Reg. 33 at 9285; 76 Fed. Reg. at 9287-9288;
Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 834 N.E.2d 791 (2005); Smith
v. Vaughn, 174 Ohio App.3d 473, 882 N.E.2d 941 (2007).
634.
Plaintiff incorporates the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
635.
The payment of funds by the Plaintiff’s health plans and/or Plaintiff, have resulted
in the unjust enrichment of Defendants.
636.
These Defendants should be responsible for any payment to which they are
entitled by the acts enumerated and should be disgorged of said funds and be
made responsible for payment of additional funds expended.
637.
Therefore any and all funds received from governmental or private health care
insurers or other legitimate payees not acting concert or combination with
Defendants to the health care providers, or plaintiff.
TWENTY-FIFTH CAUSE OF ACTION
RATIFICATION AND ADOPTION, AGENCY/RESPONDENT SUPERIOR
j. Pursuant to Meyer v. Klensch, 114 Ohio App. 4, 175 N.E. 2d 870,
872 (1961); Davis v. Mutual Life Ins. Co., 6 F.3d 367, 374 (6th Cir.
1993); Mid-America Tire, Inc. v PTZ Trading, Ltd., 95 Ohio St.3d
367, 2002-Ohio-2427, 768 N.E.2d 619; Master Consol. Corp. v.
BancOhio Nat'l Bank, 61 Ohio St.3d 570, 577, 934 N.E. 394 (1991).
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638. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
639. The Defendants have aided jointly as joint agencies, agents by estoppel, apparent
agents, and joint ventures in respondent superior capacities in regards to the
claims averred herein.
640. The Defendants jointly through their acts have adopted, or otherwise ratified, or
estoppel to deny, all acts of on for each other and one for all
(jointly and
severally).
TWENTY-SIXTH CAUSE OF ACTION
INFLICTION OF SEVERE INTENTIONAL/NEGLIGENT MENTAL ANGUISH
Pursuant to OJI CV 429.05 OJI CV 429.07; Yeager v. Local Union
20, Teamsters, 6 Ohio St. 3d 369, 453 N.E.2d 666 (1983)
641. Plaintiffs incorporate the allegations in the previous and subsequent paragraphs of
this Complaint as if fully rewritten herein.
642. Defendants intentionally, recklessly, and negligently acted in an extreme and
outrageous manner, so as to cause serious emotional distress to the Plaintiff,
resulting in injuries and damages.
643. Defendants’ conduct, acts, and omissions are so outrageous in character and so
extreme in degree that they go beyond all possible bounds of decency and may be
regarded as utterly intolerable and atrocious in our society.
644. The Defendants’ acts are especially intolerable as they relate to the Plaintiffs’ and
societies’ expectation and rights to health care, safety, and welfare.
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645.
Where such acts by the Defendants constitute crimes and/or are prohibited by
certifying bodies, they are especially intentional or reckless.
646.
The Defendants’ actions proximately caused Plaintiff’s psychological and physical
injuries.
647.
The Plaintiffs’ mental injuries were serious and of a nature that no reasonable man
could endure and was reasonably foreseeable negligence by the Defendant.
TWENTY-SEVENTH CAUSE OF ACTION
(Loss of Consortium)
648.
Plaintiffs incorporate the allegations in the previous and subsequent paragraphs
of this Complaint as if fully rewritten herein.
649.
Lucy Chyi is the wife of Plaintiff Lindgren Chyi.
650.
Sandy Eisnaugle is the wife of Plaintiff Edmund Eisnaugle
651.
Karen Fulmer is the wife of Plaintiff Mark Fulmer.
652.
Concetta Gagliano is the wife of Plaintiff Daniel Gagliano.
653.
Jacinta Mergler is the wife of Plaintiff Michael Mergler.
654.
Ann Perrotti is the wife of Plaintiff John Perrotti.
655.
Carol Razem is the wife of Plaintiff John Razem
656.
Carol Sposit is the wife of Plaintiff Donal Sposit.
657.
Denise Wade is the wife of Plaintiff Donald Wade.
658.
Emily Napolitano is the wife of Plaintiff Ralph Napolitano.
659.
Mary Cox was the wife of Plaintiff William Cox
660.
Lori Griffith is the wife of Nathaniel Griffith.
661.
James Hoke is the husband of Jacqueline Hoke.
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662. Danny Neal is the husband of Tracy Neal.
663. Jack Cronk is the husband of Ruth Cronk.
664. Mary Hasty is the wife of Ernie Hasty.
665. Rebecca Kratzer is the wife of Larry Katzer.
666. Martha Kirkbride is the wife of Walter Kirkbride.
667. Kathy Moody is the wife of Robert Moody.
668. As a direct and proximate result of the conduct described in this Complaint, the
above named Plaintiffs have lost the services of their spouses, their consortium,
included but not limited to loss of society, companionship, affection, comfort,
guidance, and counsel of their spouses and have otherwise suffered pecuniary
and non-pecuniary injuries.
669. The above named Plaintiffs are entitled to recover damages for Defendants’
actions as plead herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment, jointly and severally, against any
named Defendant who is deemed to be liable to the Plaintiffs for the following:
a. Compensatory damages in an amount greater than $25,000.00;
b. Punitive damages in an amount greater than $25,000.00;
c. Their costs of this action to include reasonable attorney fees;
d. Plaintiffs further ask the Court to issue a declaration of the
unconstitutionality, in whole or in part, of medical malpractice tort reforms
under S.B. 281 and H.B. 215, and tort reform statutes under S.B. 120 and S.B.
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80 (as applicable);
e. Plaintiffs further ask the Court to issue a declaration with that the
subrogation liens for their medical bills will be paid by the Defendants.
f.
Plaintiffs further ask for a declaration on the admissibility in full of Plaintiffs’
Medical Bills under Ohio Rev. Code § 2323.41(A), making the amount of those
bills prima facie reasonable and necessary;
g. Plaintiffs further ask the Court to issue a declaration that there is no right
to set-off, and that any claim of any right to contribution or indemnification
must be brought in a completely separate action only among Defendants found
liable in tort, and there is no right to involve any third party in this case as an
affirmative defense or otherwise (empty chair, settling defendant, or other non-
party);
h. Plaintiffs further ask the Court to issue a declaration that no other party,
not already a named party to this suit or as provided in an Amended Complaint
under Fed. Civ. R. 15, (except by Defendants in a timely responsive pleading)
can be found liable in tort or brought into the case at bar;
i.
Plaintiffs further ask the Court to declare that there is no right to set-off for
any payments made by any Defendants for non-medical-malpractice claims of
separate torts and contractual actions, and all other claims are not subject to
set-off as they are separate, distinct, intentional, or otherwise.
j.
Plaintiffs further ask for pre-judgment and post judgment interest at the
statutory rate;
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k. Plaintiffs ask the Court to declare the practice of jail recording to be
unconstitutional/unlawful per se or as applied in this case; and
l.
For such other and further relief to which they may be deemed entitled at
law or equity.
Respectfully submitted,
s/Dwight D. Brannon_____________
Dwight D. Brannon (0021657)
Attorneys for Plaintiffs
BRANNON & ASSOCIATES
130 W. Second St.
Suite 900
Dayton, OH
45402
Telephone:
(937) 228-2306
Facsimile: (937) 228-8475
E-Mail:
dbrannon@branlaw.com
JURY DEMAND
Now come Plaintiffs, by and through counsel, and respectfully demand a trial by
jury on all issues in this case.
/s/ Dwight D. Brannon
Dwight D. Brannon
114