Hernia Mesh Complications: Who is Liable?
Legally Reviewed and Edited by: Terry Cochran
Hernia mesh surgeries can change lives. While many people who require a hernia mesh go on to live a relatively normal life, others suffer from significant side-effects caused by a mistake during the surgery or faulty hernia mesh products.
If you experienced problems with your hernia mesh device, you may have needed revision surgeries, resulting in rising hospital bills, time off work, and pain and suffering.
Many victims of faulty surgical mesh wish to file a hernia mesh lawsuit to cover all these expenses. However, it’s challenging to determine who is liable in a hernia mesh lawsuit without legal advice. Before seeing an experienced hernia mesh attorney, consider these points to help them decide who to include when filing your lawsuit.
Hernia Mesh Complications
Although there are several different types of hernias, defined by where they occur, doctors typically treat them using one of three methods. The first, Watchful Waiting, means they have caught the hernia early and prefer to wait and see if it develops further.
The other two treatment options require surgery. Either with open surgery or laparoscopic surgery, a doctor can repair the hernia. Often, they place a surgical mesh to strengthen the area around the hernia and prevent it from returning.
Most hernia mesh complications come from these surgical mesh devices. Patients recovering from a hernia surgery involving a mesh may experience any of these complications:
- Adhesions (tissue that sticks together, causing problems)
- The hernia returning
- Bowel obstruction
- Fistula (unusual connection between organs)
- Bowel perforation (holes in the bowel caused by the mesh)
- Seroma (fluid buildup)
If you notice any of these symptoms, see your doctor immediately to determine if your surgical mesh has malfunctioned, requiring additional surgeries or other further treatment. When you see your doctor, ask them which hernia mesh was used in your initial surgery. This information can help your lawyer determine whether you can sue for compensation.
Common Hernia Mesh Repair Devices Recalls
Not all hernia mesh complication occurrences are eligible for a lawsuit. However, the FDA has issued recalls for a significant number of hernia mesh products that were on the market for several years. If you aren’t sure which hernia mesh your surgeon used, ask the hospital where you had the operation.
A law firm with previous experience handling hernia mesh lawsuits can help you determine whether your specific device qualifies you for a lawsuit. Some of the brands and devices included in FDA recalls between 2009 and today include:
- Atrium Medical (C-QUR Mesh)
- Ethicon, several medical devices
- Bard (Composix Kugel Hernia Patch)
- Gentrix (Surgical Matrix)
- Parietex (Composite Parastomal Mesh)
However, even if your device is not on this list, you may still be able to file a lawsuit. Ask your lawyer about your options. For some products, you need to have had the surgery within a certain period.
In some cases, the FDA has not issued a recall, but the company themselves recalled the product. If you fall under this category, you’ll need to consult with a knowledgeable hernia mesh attorney to determine whether you can file a suit.
Who Could Be Liable
One of the most challenging aspects of a hernia mesh lawsuit is determining liability. While many people may blame their doctor for complications after surgery, that isn’t always the case in a product liability case.
Several parties could hold all or part of the liability for your complications, including your doctor or other medical personnel and the manufacturer of the device. Once your lawyer has determined who is liable, they can start building either a product liability case or a medical malpractice suit.
Manufacturer of a hernia device
There is significant evidence available that several hernia mesh manufacturers continued to sell their devices despite known problems. They also failed to inform doctors and patients about potential complications, meaning many doctors recommended their faulty products to patients.
Your lawyer can hold the manufacturer responsible for creating a product that caused you serious injury and damages through a product liability case. To do this and avoid the caps on damages set by Michigan law, they must show that the manufacturer was negligent through three steps:
- The maker of the hernia mesh knew it was defective.
- It was significantly likely that the product would cause the injury you suffered.
- The manufacturer ignored this information, producing and selling the product regardless.
To prove this, your lawyer must have extensive knowledge of the history of hernia mesh lawsuits, including the ability to research individual companies. They may also recommend that you join an existing or planned Multidistrict litigation (MDL) suit. Although these may result in lower payouts, they are also often more effective when fighting large corporations.
If you want to file a product liability case against a hernia mesh manufacturer, you must do it within three years of your injury.
You may need to file a medical malpractice suit against your doctor or other medical personnel. These could take two forms.
Before surgery, your medical team must inform you of potential problems and ask for your consent to proceed. If they fail to do so, and you experience complications, you can file a medical malpractice suit. However, if they didn’t inform you of the complications because the manufacturer didn’t reveal them, you cannot sue the medical team and must proceed with a product liability suit.
The other avenue for a malpractice suit is if your doctor or a nurse made a mistake that caused you injury. For example, if they placed the hernia mesh incorrectly, which led to an obstruction, you could file a medical malpractice claim.
Medical malpractice suits are highly complex and require a lawyer experienced with both legal and medical terminology. Because mistakes do happen, your lawyer must prove that these complications occurred due to negligence on the part of a medical person. Your lawyer will need to show that they had a duty to your care and that they breached that duty, causing demonstrable damages.
The statute of limitations for filing a medical malpractice claim in Michigan is two years from the surgery date. However, if you discover your problems later than that, the law allows you to file within six months of developing or discovering complications.
Filing a Lawsuit
Once you and your lawyer have determined who you believe is liable for your complications, you must file a lawsuit. Regardless of the type of lawsuit you file, your lawyer must gather significant evidence to prove your case. Doctors often carry malpractice liability insurance, meaning they will have an experienced legal team defending them, while product manufacturers typically have a team of lawyers ready to argue against your claim in court.
Your lawyer will use your medical records and expert witnesses to prove the negligence of either your doctor or the manufacturer. In both types of lawsuits, you can ask for economic and noneconomic damages. These include:
- Medical bills
- Lost wages
- Certain other expenses, like traveling to appointments
- Pain and suffering
To calculate the amount of compensation you deserve, your lawyer adds up all your expenses related to the case. Often, hernia mesh victims miss work, meaning they lose wages. If they suffer a permanent disability, it could prevent them from returning to their original job, lowering their lifetime income.
Additionally, medical costs for multiple surgeries can quickly become unaffordable. When you include additional care, prescriptions, and other medical care costs, you can easily reach tens of thousands of dollars.
Determining noneconomic damages, like pain and suffering, is harder. Your lawyer must show that you have suffered from the complications and use their experience to determine an exact figure.
Going to Court or Settling?
Court cases can take several years. The longer they take, the more they cost. Your lawyers need to hire expert witnesses, file subpoenas, and conduct interviews. Although going to court is sometimes essential, the first step is to try and reach a settlement with the defendant.
Your lawyer and their lawyers negotiate to reach an agreement, which gives you the compensation you deserve without dealing with court expenses. However, it’s essential that you not accept a subpar settlement offer just to avoid court. You deserve enough compensation to pay for your medical bills, other costs, and pain and suffering. Don’t accept an offer without speaking with your legal team first.
File a Hernia Mesh Claim With Cochran, Kroll & Associates, P.C.
If you or a loved one suffered complications after undergoing a fherhernia repair surgery, contact the team at Cochran, Kroll & Associates, P.C., to schedule a free initial consultation. Eileen Kroll, a managing partner with ten years of experience working as a registered nurse, will look over your case and determine the best path for you to receive compensation.
Call our law firm today at 866-MICH-LAW for a free consultation to learn more about how our team of experienced personal injury lawyers can help you.
Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.