What legal actions can be taken in Arizona when hernia mesh implants lead to unexpected problems?
Manufacturers of medical devices are entrusted to design and produce products that can be safely used by patients. When manufacturers fail to do so, they should be held accountable.
To date, thousands of patients have filed lawsuits against large pharmaceutical companies like Johnson & Johnson and C.R. Bard for issues related to their hernia mesh implants.
This article looks at how hernia surgical mesh implants are used, the potential claims available to Arizona patients injured by these implants, and the damages that can be recovered.
What’s a hernia?
A hernia is a condition in which an organ, intestine, or fatty tissue squeezes through a hole or weak spot in the surrounding muscle or connective tissue (often along the abdominal wall). In some instances, a hernia can actually be seen as an external bulge.
While a hole or weak spot in your muscle or connective tissue can be present at birth, it generally takes an increase in abdominal pressure to actually cause a hernia. This is why most hernias occur when straining to lift something heavy or sneezing repeatedly.
What’s a hernia mesh implant?
According to the U.S. Food & Drug Administration, more than 1 million hernia repairs are performed each year in the United States.
There are a number of surgical and non-surgical approaches to repair hernias. One of the most common surgical repairs is the implantation of surgical mesh to strengthen the weakened area and reduce the chance of recurrence.
Surgical mesh implants are generally constructed from synthetic materials or animal tissues. The mesh may be absorbable (in which case the mesh will degrade and lose strength over time) or non-absorbable (in which case the mesh will remain in the body indefinitely and is considered a permanent implant).
What’s the problem with hernia mesh implants?
While hernia mesh implants have been a widely popular and effective solution for patients with hernias for more than 50 years, a large number of mesh implants manufactured over the past few years have caused serious complications. These complications include:
- Organ perforation
- Nerve damage
- Infections
- Neurological changes
- Intense pain
- Renal failure
- Fistulas (an abnormal connection between organs)
- Rashes
- Nausea
- Bowel obstruction
- Adhesions
As a result of these complications, a number of mesh implants have been recalled by the FDA and at least 54,000 consumers have filed lawsuits against large hernia mesh implant manufacturers including Johnson & Johnson and C.R. Bard.
Manufacturers that have been sued to date include:
- Atrium Medical Corporation
- Covidien
- C.R. Bard
- Ethicon
- Gore Medical
- Genzyme Corporation
The lawsuits generated by these complications vary from patient to patient, but the gist of the injury claims is that the implanted mesh was defective in some way and the manufacturer knew it was defective. Some lawsuits claim that the mesh implants degraded too quickly, while others claim that the mesh implants ruptured immediately after surgery.
For example, in the case of gynecological surgical mesh implants, more than 100,000 women have sued Boston Scientific and other manufacturers saying that it resulted in terrible health issues like erosion, infection, organ perforation and chronic pain. This recent wave of lawsuits is the largest multidistrict litigation since asbestos.
Do I have a claim?
If you suffered a complication from a hernia mesh implant, you may have a product liability claim against the manufacturer of the implant.
In Arizona, a product liability claim can be brought under a theory of negligence or strict liability. Typically, a plaintiff will use the theory of strict liability because it’s easier to prove.
Let’s take a quick look at both theories.
Negligence mesh lawsuit
In a product liability case based on negligence, you must prove that:
- The defendant owed you a duty of reasonable care (all manufacturers owe a duty of care to all potential users of their products),
- The defendant breached the duty of reasonable care owed to you, and
- The defendant’s breach was the proximate cause of your injury.
Strict liability mesh lawsuit
In a product liability case based on strict liability, you don’t need to prove that the defendant breached any sort of a duty. Rather, you simply need to prove that:
- A product was sold in an “unreasonably dangerous” condition,
- The unreasonably dangerous condition existed at the time the product left the defendant’s control, and
- The dangerous condition was the proximate cause of your injury.
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Most hernia mesh lawsuits are brought against the manufacturer and based on the hernia mesh being defective.
But, in some cases, it’s possible the surgeon is liable. For example, perhaps the hernia mesh wasn’t defective, but the surgeon failed to inform you of the common side effects. Or perhaps the surgeon installed the hernia mesh improperly.
If the error lies with the surgeon (or some other health professional), a medical malpractice lawsuit may be appropriate. Medical malpractice occurs when a patient is harmed because a health care professional deviates from the accepted standard of care.
In order to establish a medical malpractice claim in Arizona, you must prove the following 2 elements:
- The health care provider failed to exercise the degree of care and skill expected of a reasonable health care provider in the profession, and
- Such failure was the proximate cause of your injury.
Timeline for filing a mesh implant lawsuit
Arizona's deadline for filing a product liability lawsuit or a medical malpractice lawsuit is 2 years from the date of the injury. Under Arizona's discovery rule, the clock doesn't start ticking until you discover (or, with reasonable diligence, should have discovered) your injury. If you’re under the age of 18 when the injury occurs, the clock won’t start running until you turn 18.
What damages are available in a hernia mesh lawsuit?
Compensation isn’t capped in Arizona for product liability claims or medical malpractice claims. In both cases, the following damages are available:
- Economic damages (medical expenses, lost income, etc.)
- Non-economic damages (pain and suffering, emotional distress, etc.)
- Punitive damages (in cases where the defendant’s actions were grossly negligent or intentional)
After you’ve sought proper medical treatment for any complications stemming from your hernia mesh surgery, contact a hernia mesh lawsuit attorney to find out if and how you may receive compensation.
See our guide Choosing a personal injury attorney.