In its Order dated January 16, 2018, the Superior Court of the State of Washington For King County (“Court”) granted the plaintiff’s motion for new trial and for sanctions against Olympus America, Inc. and related defendants (“Olympus”) in a wrongful death case in which the plaintiff sued Olympus, claiming that the decedent, who was 57-years-old and suffering from pancreatic cancer in 2013, was scoped using an Olympus duodenoscope after which he developed an infection and died in August 2013. The plaintiff alleged that the contaminated scope was not properly designed which made it difficult to properly clean the entire scope between patients’ procedures.
A jury determined in July 2017 that the Olympus scope used in the decedent’s procedure was safe and not defectively designed but did, however, order Olympus to pay the hospital that had purchased the scope $6.6 million in damages because Olympus had failed to provide the hospital with adequate cleaning instructions or warnings regarding appropriate disinfecting procedures, and the jury ordered the hospital to pay the plaintiff $1 million. Olympus recalled the particular hard-to-clean duodenoscopes in 2016 and made changes to the scopes to make it easier to properly sterilize the scopes between procedures.
The plaintiff sought a new trial and sanctions against Olympus for its alleged discovery violations. In particular, the plaintiff alleged that Olympus intentionally and willfully failed to properly disclose internal emails from as early as 2008, in which concerns were raised regarding the safety of the scopes. While Olympus turned over the emails to the plaintiff, as requested in discovery, it failed to translate the emails, which were in Japanese, as required by court rules. The scopes were introduced into the market by Olympus in 2010.
In its January 16, 2018 Order, the Court stated that “the Olympus defendants violated the discovery rules, and that the discovery violations of the Olympus defendants were willful under case law.” The Order further stated that “the discovery violations of the Olympus defendants substantially prejudiced the ability of plaintiffs to prepare for trial,” and therefore granted a new trial to the plaintiff due to “lack of Substantial Justice,” and imposed sanctions against the Olympus defendants in the amount of $250,000, finding “the insufficiency of lesser sanctions to remedy the discovery violations.”
A U.S. Senate report dated January 13, 2016 concluded:
“Senator Murray’s staff investigation demonstrates that duodenoscopes spread life-threatening superbug and other antibiotic-resistant infections among patients in a number of hospitals throughout the United States and Europe in 2013 and 2014. These outbreaks occurred despite the fact that the manufacturer of 85 percent of the duodenoscopes used in the United States, Olympus, was aware by early 2012 that its closed-channel duodenoscope could harbor dangerous bacteria even after repeated and careful cleaning according to instructions.
Multiple hospitals were also aware that duodenoscopes were linked to superbug and other antibiotic-resistant infections in ERCP patients. Yet none of the three manufacturers of duodenoscopes sold in the United States – Olympus, Fujifilm, and Pentax – and only one hospital, ever alerted CDC to the infections. The device manufacturers and most hospitals also largely failed to meet their legal obligations to provide complete and timely information about serious patient infections and deaths to manufacturers and/or FDA.
The duodenoscope manufacturers and Custom Ultrasonics, the manufacturer of an AER used to clean duodenoscopes between uses, failed at every level to meet basic expectations of transparency and openness and to actively engage with FDA to address contamination issues. This disregard for the spirit, and sometimes the letter, of the law resulted in potentially preventable serious and potentially fatal illnesses in hospitals around the world.”
If you or a family member acquired a serious infection following an endoscopic procedure, you should promptly consult with a local medical malpractice lawyer in your U.S. state who may investigate your possible endoscopy claim for you and represent you in a claim for compensation due to the injuries you suffered following an endoscopy.
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