Can I Sue for Hernia Mesh Complications?

Make sure you know your legal options if you've suffered health problems because of a hernia repair procedure.

By , J.D., University of San Francisco School of Law
Updated by Charles Crain, Attorney (UC Berkeley School of Law)

The implant of a mesh screen has become one of the most popular surgical treatments for patients who are dealing with a hernia. When the mesh is properly designed, manufactured, and implanted, it provides significant benefits. But complications caused by hernia mesh treatment have led to thousands of lawsuits.

If you've been harmed by mesh used in your hernia repair, it's important to know the steps you should take to preserve your legal rights and pursue fair compensation.

Common Hernia Mesh Complications

Since hernia-type injuries have a high rate of recurrence, health care providers have looked for ways to strengthen a repaired hernia and reduce the chance of future problems. They've found that surgical mesh can be effective. Most hernia mesh is made from animal tissue or synthetic material, with dozens of variations on the market.

According to the Food and Drug Administration, the most common complications linked to the use of hernia mesh include:

  • infection and/or pain at the site of the repair
  • a perforation (or hole) in neighboring tissue or organs
  • mesh and/or scar tissue at the site sticking to neighboring tissue or organs
  • mesh obstructing (blocking) the bowels or bladder
  • mesh shrinking or becoming dislodged, and
  • mesh not performing as designed, causing a recurrence of hernia.

In the most serious cases, the hernia mesh needs to be repaired or replaced, meaning that a second or subsequent surgical procedure is necessary.

If you're experiencing complications after hernia repair involving the use of mesh, it's important to talk with your doctor about what's happening. You can also report the problem to the FDA.

Diagnosing and Preserving Evidence of Hernia Mesh Complications

If you're thinking about filing a lawsuit in order to get compensation for the cost of additional medical treatment and other losses stemming from defective hernia mesh, it's critical that you:

  • get a complete diagnosis of health problems caused by the failed mesh implant, and
  • preserve evidence of the defective mesh implant.

In any injury-related civil case, the specifics of the plaintiff's health problems are critical. An accurate diagnosis is not only important for your health, but a major factor in determining the value of your case. (We'll talk more below about how compensation is calculated.) You can improve your chances of getting a complete and accurate diagnosis by seeing a doctor at the first sign of any complications associated with hernia mesh.

You should also be sure to preserve evidence by asking your care provider to save the removed mesh, or as much of it as can be saved. This, along with your medical records, should be given to the lawyer working on your case.

How Lawyers Will Gather Evidence of Your Health Issues

Most lawyers will not start a hernia mesh lawsuit until they have confirmed that a potential client has a specific health problem that could be linked to the implant. So, in addition to looking at your medical records, your attorney may arrange for a health assessment (a physical examination and imaging tests).

Keep in mind that defense attorneys in hernia mesh cases have the right to see any medical records that are relevant to the plaintiff's injuries, and can normally have their own medical expert examine a plaintiff. One important job of the plaintiff's attorney is making sure their client's interests are protected as the defense gathers this kind of information.

How Diagnosis Affects the Statute of Limitations

Laws called "statutes of limitations" set time limits on the right to file a lawsuit.

Each state has its own rules, and the deadline for filing a personal injury lawsuit could be different than the deadline for a medical malpractice lawsuit. Figuring out how these laws apply to your claim can be complicated—this is one area where it can be helpful to work with an attorney.

Importantly, the clock only starts ticking on these deadlines once a person knows—or reasonably should have known—that they're experiencing health problems. This rule gives potential plaintiffs a fair chance to seek compensation. But it also makes it very important to monitor your health and get an accurate diagnosis as quickly as possible. If you wait too long, you might be at risk of running out of time to file a case.

Determining Who Is Liable for Hernia Mesh Complications

Because every course of hernia treatment is different, the answer to this question really depends on the situation. But, in general, when a patient is experiencing unexpected complications after hernia mesh surgery, there could be a problem with:

  • the mesh itself, which could lead to a product liability lawsuit against the manufacturer of the mesh, and/or
  • the way the mesh was implanted, which could lead to a medical malpractice lawsuit against the surgeon or any other health care professional who provided sub-standard care.

Why does the distinction between these two kinds of lawsuits—product liability versus medical malpractice—matter? These kinds of cases are pretty different in terms of what you need to prove, for one thing. But, more importantly, medical malpractice lawsuits often involve unique procedural hoops for a plaintiff to jump through, such as the filing of a special sworn statement ("affidavit of merit") or the submission of the case to a pre-lawsuit screening panel.

Depending on the state where the lawsuit is filed, there might also be dollar limits on the amount of compensation ("damage caps") a medical malpractice plaintiff can receive if the lawsuit is successful. (Learn more about medical malpractice cases arising from surgical errors.)

In contrast, a product liability case is usually an easier road from a procedural standpoint (there often aren't special filings or pre-lawsuit screening panels to clear). Also, the plaintiff's damages aren't usually subject to any kind of statutory cap.

Damages in a Hernia Mesh Case

Figuring out the value of any injury-related case starts with determining the nature and extent of the injured person's damages, and a hernia mesh claim is no different. "Damages" means money paid to the injured person (the plaintiff in the lawsuit) by the person or entity responsible for the harm (the defendant in the lawsuit).

Your personal injury damages could include:

  • the cost of past and future medical care
  • lost income and diminished earning capacity
  • compensation for your pain and suffering.

"Pain and Suffering" in a Hernia Mesh Case

It's natural to talk about things like medical bills and lots income in terms of dollar amounts. It can be tougher to quantify compensation for pain and suffering in a personal injury case.

Plaintiffs can recover damages for both:

  • their physical pain and suffering (what they've already experienced, and the detrimental effects they're likely to experience in the future), and
  • their mental pain and suffering (for example, emotional distress and loss of enjoyment of life).

In the context of a hernia mesh case, pain and suffering might include:

  • physical pain and discomfort resulting from the failed procedure, or from additional procedures required to fix the problem
  • anxiety over the failed hernia mesh and fear of the unknown harms it might be causing in the patient's body
  • sleeplessness, fear, depression, and other psychological effects, and
  • an inability to perform everyday tasks or engage in hobbies.

The Duty to Minimize Your Damages

When you file a hernia mesh lawsuit, you take on a legal obligation to do what you can to keep your damages to a reasonable minimum. In legal terms, this is a plaintiff's "duty to mitigate" the financial impact of the harm they've suffered.

For example, if the defendant can successfully argue that you failed to get necessary medical treatment when you knew there was a problem with your hernia mesh implant, your damages award might be significantly reduced.

How Your Damages Could Affect Your Decision to Settle Your Lawsuit

It's rare for a plaintiff to receive damages through a jury verdict or a judge's decision. Most personal injury lawsuits settle. In a settlement, the plaintiff gives up their legal claims against the defendant in exchange for financial compensation.

In order to know if a settlement offer is fair, a plaintiff must have an accurate estimate of their damages. That means it's not a good idea to accept a settlement before you have:

  • a complete picture of your hernia mesh complications, and
  • a full understanding of the medical care that will be necessary to correct the problem.

Working With an Attorney

If you pursue a hernia mesh lawsuit, you will almost certainly want to work with an attorney who has experience handling these kinds of cases.

An attorney can help by representing your interests in negotiations and in the courtroom. You'll benefit from having an attorney with the skill, experience, and resolve to go up against a medical device manufacturer with significant financial resources and a small army of attorneys.

An experienced attorney will also know what's involved in each step of a personal injury lawsuit. This means they should have a good sense of how to manage your case and what legal arguments to make. Your attorney may even have successfully handled cases that are very similar to yours in terms of:

  • the kind of mesh material that failed
  • the specific implant procedure that went wrong
  • the types of health problems resulting from mesh complications, and
  • the manufacturer of the mesh (the defendant in your lawsuit).

Keep in mind that you probably won't need to spend a lot of money to hire an attorney for this kind of case. Most lawyers who pursue medical malpractice or personal injury cases get paid through a contingency fee. This means they receive a percentage of any settlement or award paid to their client, and don't get paid at all if the client doesn't receive any money.

How Other Hernia Mesh Litigation Matters for Your Claim

Thousands of personal injury lawsuits against hernia mesh manufacturers have alleged that plaintiffs were injured by the products. When that many cases are filed against one company over one of its products, it's common for federal courts to consolidate the lawsuits into multidistrict litigation (MDL). At the state level, the same kind of consolidation is called multicounty litigation (MCL).

Grouping cases together allows the courts to deal with similar claims more efficiently. For example:

  • A single judge can make decisions about pre-trial issues like discovery and the qualifications of expert witnesses, instead of having hundreds or even thousands of judges all making rulings on the same issues.
  • MDL can send so-called "bellwether cases" to trial, allowing the parties to see how a "typical" case fares in front of a jury. The parties can then use that result as they try to decide on a fair settlement of the rest of the cases.

(Class action lawsuits are another way for the courts to handle a large number of claims against one defendant. But class actions aren't usually the best option in cases where the plaintiffs have suffered physical harm, and not just economic losses.)

What Multidistrict Litigation (MDL) Can Tell You About Your Case

You can discuss with your attorney if your potential claim might become part of ongoing multidistrict litigation. But even MDL that has already resolved could be important to your case.

If you were harmed in the same way, and by the same product, as plaintiffs in MDL, you can use the outcome of that litigation to get an idea of how your case might turn out. If the MDL settled that could be a sign you have a good chance at a settlement. On the other hand, if the plaintiffs received no compensation that could signal that your claim won't succeed, either.

Major Hernia Mesh MDL and MCL Settlements

Several big lawsuits over hernia mesh complications have settled over the past few years. You can discuss with your lawyer whether any of these cases could shed light on the strength of your potential claim.

Davol/Bard's Kugel Mesh Hernia Patch MDL No. 1842

This is the most notable of settlements among hernia mesh lawsuits. Begun in 2007, the first bellwether trial resulted in a defense verdict in April 2010. A few months later, the plaintiff won $1.3 million in the second bellwether trial. Almost a year later, all of the cases in the MDL settled for $184 million. This resulted in about $60,000 for each of the roughly 2,700 plaintiffs.

Atrium Medical Corporation's C-Qur Mesh MDL No. 2753

This MDL included (among other claims) allegations of defective design. Many plaintiffs contended that the meshes used substandard materials that caused serious allergic reactions. The parties reached a settlement agreement in 2021. By August, 2023, more than $48 million had been allocated to more than 1,200 claimants.

Johnson & Johnson/Ethicon's Physiomesh MDL No. 2782 and New Jersey MCL No. 627

There were two major consolidated cases in which plaintiffs argued that they were harmed by Physiomesh. The MDL consisted of around 2,500 lawsuits in the Northern District of Georgia. The New Jersey Supreme Court consolidated that state's Physiomesh cases into MCL in Atlantic County.

The cases were separate but dealt with similar claims. The plaintiffs alleged, among other things, that Physiomesh had a defective design, that the instructions and warnings accompanying the mesh were inadequate, and that the meshes were improperly manufactured.

Johnson & Johnson reached major settlements in these cases in 2021, and nearly all of the cases in the litigation had been resolved by 2023. The settlement terms are confidential.

Ongoing Hernia Mesh Litigation: Davol/Bard's Polypropylene Hernia Mesh MDL No. 2846

Established in August 2018, this MDL (in Ohio federal court) involves more than 3,000 plaintiffs who make two primary allegations: the mesh had a defective design, and the mesh manufacturer did not properly warn doctors and patients of risks of using Davol/Bard mesh. As of early 2024, the parties were preparing for the fourth bellweather case in the MDL.

You can learn more about MDL 2846 on the U.S. District Court - Southern District of Ohio's special web page.

Next Steps for Your Hernia Mesh Case

If you're thinking of pursuing a lawsuit over hernia mesh complications, it may be helpful to learn more about product liability cases involving medical devices. But the best way to get advice about your specific situation is to find an attorney with the right experience to help with your case.

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