Saturday, June 2, 2012

Transvaginal Mesh Litigation Issues: Part Four: Timing of a Vaginal Mesh Lawsuit

As the final article in a four-part series regarding a discussion among lawyers of Transvaginal mesh litigation issues, the issue of timing regarding a vaginal mesh lawsuit is examined. There are several potential issues related to timing in these lawsuits, including the fact that while physicians are not currently considered defendants in these suits, that could possibly change for any doctor who recommended or implanted vaginal mesh in a patient after September, 2011.

In an Executive Summary released in August of 2011, the FDA further stated that the use of surgical mesh for pelvic organ prolapse introduced risks of health complications unique to the mesh itself. Finally, in September of 2011, a majority of members on the OB.GYN Medical Device advisory panel stated the safety, effectiveness and benefits of using mesh for POP repair warrants the long-term follow up of those receiving the implant.

The FDA subsequently proposed a reclassification of mesh implants from a class 2 to a Class 3 in September of 2011, making the approval process much more stringent and requiring human trials to gain FDA approval. Because of the history of safety concerns culminating in the FDA proposal in September, doctors who ignore the risks and continue to recommend vaginal mesh implants to their patients could increase their liability for adverse reactions to the implant.

Statute of Limitations

Every state operates under different discovery rules regarding vaginal mesh implant lawsuits. For instance, Florida’s discovery rule starts the statute of limitations from the time a person realizes they have been injured by another’s negligence. Some states don’t have the discovery rule, therefore their statute of limitations runs from the date of the mesh implantation or the time the implant began causing health concerns. The discovery rule, if applicable, can be extremely important due to the fact that unlawful and negligent acts may not always have immediate or foreseeable consequences.

One federal judge in Georgia dismissed a mesh lawsuit claiming it did not meet the two year statute of limitations. In this particular case the patient was implanted with vaginal mesh in 2008 following a hysterectomy. She began having medical issues less than a year later, undergoing a second surgery to trim the mesh which had eroded into the vaginal wall. In 2009 she underwent a third surgery due to chronic and debilitating pain. Although this particular patient began having adverse reactions to the mesh implant within a year, the judge ruled she filed her lawsuit too late.

While the purpose of the statute of limitations is to encourage those injured by a medical device to bring their lawsuit in a timely manner, it can bar some injured patients from seeking compensation for the negligence of a corporation. Women who have suffered injury from a mesh implant must consider not only the date of the initial mesh surgery, but the removal date, if any, the dates the FDA issued warnings regarding mesh implants and the time there was a discussion regarding complications with the woman’s doctor once the symptoms began. Those harmed by vaginal mesh implants should be aware of whether their state operates under a discovery rule and should speak to a professional regarding the timing of their vaginal implant.

Author: Sullo & Sullo Attorneys

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