Suing for Hernia Mesh Failure: What If My Symptoms Didn't Show up Right Away?

Understand the statute of limitations, and how the lawsuit-filing deadline set by this law could apply to your hernia mesh lawsuit.

By , J.D.

If you're experiencing health problems after hernia mesh surgery, a significant amount of time may have passed since the mesh was first implanted, and you may have heard there are deadlines for filing an injury-related lawsuit in court. How do these deadlines apply to complications from hernia mesh, especially when infection, mesh failure, and other problems don't occur until months (or even years) after the procedure?

Lawsuit Deadlines Are Set by the Statute of Limitations

Every state has passed laws called "statutes of limitations." These laws set a limit on how much time may pass before you must get a lawsuit filed. Different deadlines apply to different kinds of cases, but the impact of failing to comply with the time limit is the same: miss the deadline and you've lost your right to sue and get compensation for your losses (damages). But while these deadlines are strictly-enforced, every state has also carved out exceptions that can extend the filing deadline (more on these exceptions later).

What Statute of Limitations Applies to Your Hernia Mesh Lawsuit?

The specific statute of limitations that will apply to a hernia mesh lawsuit hinges on the facts of your situation, who you plan to sue for your hernia mesh complications, and sometimes even on the kind of legal argument you (and your attorney) plan to make.

Is your case based on a problem or defect inherent in the mesh itself? If so, your lawsuit will likely be based on "product liability," a theory that can be used to hold manufacturers and others legally responsible for injuries caused by defective products. (Learn more about product liability and medical devices.)

In the majority of states, the statute of limitations deadline that will apply to this kind of hernia mesh lawsuit is the same as the one that applies to most personal injury lawsuits. But some states have a dedicated statute of limitations for product liability lawsuits. (Get 50-state details on different civil statutes of limitations.)

In Minnesota, for example, the time limit that applies to a product liability lawsuit depends on the kind of legal argument you're making against the manufacturer. A lawsuit based on "strict product liability"-- a legal theory that requires no proof of fault -- is subject to a four-year filing deadline in Minnesota. But if you're alleging that your injuries were the result of some level of carelessness (negligence) on the part of the mesh manufacturer, you'll have six years to file your lawsuit. Those deadlines are both set by Minnesota Statutes section 541.05. Learn more about time limits for filing a product defect claim.

Are you claiming that a surgeon (or some other health care provider) made a mistake when implanting the mesh, or while performing some other procedure associated with the mesh? If so, you'll likely be filing a medical malpractice lawsuit, alleging that the health professional's provision of sub-standard care caused your injuries. Most states have passed a specific statute of limitations that applies to these kinds of cases. (Learn more about the statute of limitations for medical malpractice lawsuits.)

For example, California's statute of limitations for medical malpractice lawsuits (California Code of Civil Procedure section 340.5) says this kind of case must be brought "within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury." So, the date on which the California medical malpractice statute of limitations "clock" starts running depends on when the injury was (or should have been) realized by the patient, which brings us to our next point of discussion.

The "Discovery Rule" in Hernia Mesh Lawsuits

In many kinds of injury cases, including those stemming from hernia mesh failure, the statute of limitations "clock" might not start running on the date of the defendant's alleged mistake. Instead, under the "discovery rule," the "clock" might start only when the patient discovers (or should reasonably have discovered) that they were harmed by that mistake. For example, let's say your hernia mesh was implanted on June 1, 2016, but you didn't begin experiencing complications until December 15, 2017. Under the discovery rule, the statute of limitations "clock" wouldn't start until December 15, 2017 (when you discovered your injury), even if the mesh was technically defective when it was implanted (back in June 2016).

Most states have specifically legislated this kind of exception right into the text of the statute of limitations for medical malpractice lawsuits, and many have done the same for product liability lawsuits.

Sorting Out Filing Deadlines Is Your Attorney's Job, Not Yours

If you're confused about which statute of limitations applies to your hernia mesh case, and whether you might be entitled to an extension of any filing deadline that's looming (or has already passed), don't worry. It's not your job to understand complex rules like these, let alone figure out how they might affect your case. An attorney will be familiar with the different statute of limitations deadlines in your state, and will craft the best strategy for protecting your rights.

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