Many of our clients contact us about transvaginal mesh cases and ask whether these cases are against the hospital or doctor who conducted the surgery. Generally speaking doctors are not the party liable for the injuries sustained as a result of a transvaginal mesh implant. These types of cases are tried not as malpractice, but as a product liability case.
Malpractice Lawsuit v. Product Liability Lawsuit
There are distinct differences between a medical malpractice lawsuit
and a product liability lawsuit
. Malpractice lawsuits, assert that because of the doctors negligence you suffered some type of injury. This can happen when the doctor negligently performs the operation and causes an injury.
Product liability lawsuits are geared towards a manufacturer. These types of cases assert that a manufacturer should be held liable because they produced and distributed a product that was defective. Transvaginal mesh is classified as a product. The injuries sustained by those who receive it are rarely because of a surgical negligence, but because of the defective design of the product itself.
Unless there is surgical negligence involved with the implant a doctor will not be held liable and thus is not the correct party to hold accountable. Although there should be accountability for doctors who advise patients to pursue this course of treatment, the courts have not yet ruled on the matter.
However, product manufacturers are in fact liable when they manufacture a product that is defectively designed or manufactured.
Should I Pursue a Product Defect Case?
Pursuing a product defect lawsuit is likely the best option for anyone suffering from a transvaginal mesh injury
. When a manufacturer develops, markets and ultimately exposes someone to a product that is deemed defective they are required to pay for the damages suffered by the injured party.
Manufacturers can be held liable under a number of different theories. The theory most likely applicable is a design defect theory. Design defects apply when the prototype is inherently defective. As a result all products manufactured from that prototype will also be considered defective.
Deciding on whether to pursue a claim is something that should be consulted with your attorney. Many times the statute of limitations have expired or the manufacturer of the product is insolvent and therefore you may not have a claim. It is critical that these issues be discussed thoroughly with your attorney.
Will My Doctor Be Included In This Claim?
Product defect cases are only against a manufacturer of any other commercial seller of the product. A doctor is generally not considered a commercial seller of the product. Thus a doctor will not be included in a product liability case against the manufacturer of transvaginal mesh implants.