Introduction
Transvaginal mesh implants were supposed to be a groundbreaking solution for pelvic organ prolapse (POP) and stress urinary incontinence (SUI). However, they have caused significant harm to a large number of women. Complications such as chronic pain, infection, mesh erosion, and other debilitating conditions have led many women to seek legal recourse. If you had a transvaginal mesh implant years ago or have suffered from complications due to a mesh implant, you may be wondering if it is too late to file a claim. This blog post provides an overview of the necessary timeliness in filing a mesh claim, the importance of keeping your medical records, and why obtaining legal representation is important to your case.
I. Timeliness of the Claim and Understanding the Statutes of Limitation and Repose
One of the first questions when considering a transvaginal mesh claim is whether it is too late to file. The answer to that question depends on something called the statute of limitations, which is the period of time within which you must file your lawsuit. The statute of limitations varies state by state and several factors hold relevance, including the date of your injury, when you discovered the injury, and specific state laws. With the help of an experienced mesh attorney, you can learn when the statute of limitations is for your specific case.
Date of Injury vs. Date of Discovery
Different states have varying rules about what triggers the statute of limitations. In some states, the clock starts ticking as soon as you experience an injury, such as pelvic pain. In these states, simply having symptoms is enough to trigger the statute of limitations, even if you are not yet aware that the transvaginal mesh is the cause.
Other states require more than just the discovery of the injury to start the statute of limitations. In these states, the statute is triggered only when you discover the injury and also recognize, or reasonably should have recognized, that a defective transvaginal mesh device, caused the injury. This distinction is crucial, as it can significantly affect the timeframe within which you must file your claim.
It is essential to your case to consult with a knowledgeable mesh attorney who can help you determine the applicable statute of limitations for your case. If you have questions about the statute of limitations for a potential mesh claim, regardless of where you live, you should contact Chicago-based transvaginal mesh attorney Tom Plouff of Plouff Law Offices, PC, to discuss if you have a claim and if there is any legal action to take.
The Statute of Repose and Its Impact on Your Claim
In addition to the statute of limitations, another factor regarding the timeliness of filing a transvaginal mesh claim is the statute of repose. The statute of repose sets a fixed time limit within which a lawsuit must be filed, no matter when the injury was discovered. This is particularly relevant in product liability and medical malpractice cases, as many states have separate statutes of repose for these individual claims.
The statute of repose for medical malpractice claims is often shorter than the statute of repose for product liability claims. This distinction is important because while it may be possible to sue the mesh manufacturer within the statute of repose for product liability, the window for filing a medical malpractice claim against the surgeon who implanted the mesh may have already closed.
In some cases, it may be sufficient to pursue a claim only against the mesh manufacturer. However, sometimes, improper placement of the mesh by the surgeon is a significant factor in the injury. If the statute of repose for medical malpractice has expired, leaving the surgeon essentially immune from litigation, pursuing the case only against the mesh manufacturer becomes more challenging, and in fact, may cause some attorneys to decline your mesh case.
When a case can only be brought against the manufacturer and not the surgeon, the manufacturer may argue that the surgeon’s improper placement, not the product itself, is to blame. This defense, known as the “empty chair” defense, can weaken the claim against the manufacturer. It enables the manufacturer to point to the “empty chair” in the courtroom, that is the surgeon, and make it more difficult to secure compensation. An attorney may decline to take on the case if the only viable defendant is the mesh manufacturer and the surgeon cannot be held accountable due to the expired statute of repose.
Understanding the implications of the statute of repose is important for anyone considering a transvaginal mesh claim. Consulting with an experienced attorney who can navigate these legal complexities is key to determining the viability of your case and making sure you take the proper steps within the required timeframes. If you have questions about the statute of repose for a potential mesh claim, regardless of where you are, you can contact mesh attorney Tom Plouff of Plouff Law Offices, PC, to discuss if you have a claim and if there is any legal action to take.
II. The Importance of Keeping Your Medical Records
One of the most critical steps you can take if you suspect that your transvaginal mesh has caused complications is to maintain your medical records. These records are vital to establishing the extent of your injuries and the connection to the mesh implant. Urological and gynecological records, including office visits, implant logs, surgical notes, and follow-up care documentation, establish the timeline of the procedure and the subsequent complications. These medical records are typically easier for patients to obtain on their own and can speed up the process of evaluating your legal claim against a mesh manufacturer. States have different rules about how long a medical provider must retain your records, so it is best to obtain your records contemporaneously with the services provided so you have them if you decide down the road you want to pursue a possible case.
Implant Logs and Surgical Records
Some of the most important records you should maintain are implant logs and surgical records, which are essentially the foundation of proving your claim. These documents detail the type of mesh used, the manufacturer of the mesh (e.g., Johnson & Johnson, Ethicon, Boston Scientific, Coloplast, Bard, Covidien), the date of the surgery, the surgeon who performed the procedure, and any complications or observations noted during or after the surgery. It is essential to obtain copies of these records from the hospital or surgical center where your procedure was performed, and if not available there, from the medical provider who provided mesh-related services. If you have had multiple surgeries, please ensure you collect records from each procedure, as this will help your mesh attorney build a comprehensive timeline of your medical history. Any record in which you complain about what could later be construed as a mesh-related complication (e.g., pelvic pain). This means records from your primary care physician, or others may be necessary to obtain even though the records are not by the mesh implanting surgeon or surgeon who removed the mesh, who typically are pelvic medicine urogynecologists or urologists.
Follow-Up Care and Complications
In addition to your surgical records, keeping records of all follow-up care related to your transvaginal mesh is important too. This includes visits to your primary care physician, gynecologist, urologist, or any other specialist who treated you for mesh-related complications.
III. Why You Need a Transvaginal Mesh Attorney
Navigating the legal world of transvaginal mesh claims against multi-million-dollar pharmaceutical/medical device companies can be daunting. The manufacturers of these products are large corporations with extensive legal resources at their disposal. They are ready to hire a legal team to represent and defend them in these claims. To make sure your rights are protected and that you receive the compensation you deserve, it is important to have a seasoned transvaginal mesh attorney on your side. Chicago-based mesh attorney Tom Plouff has previously argued against mesh manufacturer Johnson & Johnson and in March 2018 secured $35 million in damages for his client. The jury awarded $10 million in actual damages and $25 million in punitive damages due to injuries she sustained from her Ethicon Prolift transvaginal mesh implant.
Experience in Transvaginal Mesh Litigation
Transvaginal mesh litigation requires in-depth knowledge of these medical devices, product liability law, and the complications associated with mesh implants. An experienced attorney who has successfully handled transvaginal mesh cases will be familiar with the nuances of these claims, including the common defenses used by manufacturers and the best strategies for overcoming them. Your attorney will thoroughly investigate your case. This includes reviewing your medical records, consulting with medical experts, and identifying any potential defects in the design or manufacturing of the mesh. An attorney with experience in mesh litigation can do this efficiently.
Negotiating Settlements and Litigating in Court
Some transvaginal mesh claims do not go to trial and are instead resolved through settlements. However, negotiating a fair settlement requires skill and experience. A mesh attorney must negotiate with the manufacturer on your behalf, aiming to secure the maximum compensation for your injuries. If a fair settlement cannot be reached, your attorney needs to be prepared to take your case to trial before a jury. Litigation can be a lengthy and complex process, but with a dedicated attorney by your side, you can be confident that your case will be presented effectively.
Conclusion
If you have suffered complications from a transvaginal mesh implant, it may not be too late to seek justice. The legal process can seem overwhelming, but you need not navigate it alone. A knowledgeable mesh attorney will guide you through each stage of your claim, from gathering evidence to negotiating settlements and representing you in court.
If you believe you have been harmed by the implanting of a mesh device, you are encouraged to contact an experienced transvaginal mesh attorney like Tom Plouff of Plouff Law Offices, PC, to discuss if you have a potential transvaginal mesh case and if there is any legal remedy available.
