Transvaginal mesh claims an ongoing concern
By AdvocateDaily.com Staff
The lengthy passage of time since undergoing transvaginal mesh (TVM) surgery doesn’t necessarily prevent a patient from suing over a faulty product, says Oakville personal injury lawyer Meghan Walker.
Walker, associate with Will Davidson LLP, explains that Ontario’s Limitations Act typically requires civil actions to be brought within two years or risk being dismissed as statute-barred. However, the clock does not begin ticking on the two-year deadline until the potential plaintiff knew or ought to have known of the material facts to support a claim of negligence, she adds.
Even though TVM surgeries have been carried out since the early 2000s, she tells AdvocateDaily.com it can take years for some women to realize that the flexible, net-like material inserted via an incision in the vagina is the source of their health problems.
Designed to support weakened pelvic organs and correct stress incontinence, some TVMs have been found to cause significant problems, including erosion through nearby tissues and organs, Walker explains.
“It’s not uncommon for women to call us a decade after their TVM surgery because they only recently discovered the mesh implant has caused considerable damage to their vagina, bowel, or bladder. Sometimes the symptoms of mesh-related problems can take years to develop," she says. “If however, they had the surgery in 2004 and their doctor raised concerns about the TVM soon after, it’s going to be very difficult to start an individual case years later. But if their doctor or specialist didn’t suspect that it could be the TVM, they may be able to overcome the limitation issue.
“It’s critical to understand when the discovery first took place because you have two years to file a claim from the time when you knew or ought to know that you have a claim against the defendant,” Walker adds.
Her firm has spent the better part of the last decade advancing claims against the manufacturers of transvaginal mesh.
“In a way, it’s amazing the amount of women who have been deeply impacted by this surgery,” Walker says. “We’re still getting intake calls almost every day.”
Will Davidson LLP determined early on that these cases are likely better suited for a mass tort, instead of a class action, she says.
“We have dealt with class actions on other files in the past, but from early on, we felt that each case is unique, and a class action is not appropriate,” Walker says. “All of these women had their surgeries at different times and involving a multitude of products, and while many suffered similar injuries, the degree varies wildly depending on the person.”
According to Walker, the most important thing to do for a patient who believes they may have a TVM claim is to find out which product was used in their surgery.
“If you get your hospital records, there will be a product sicker on your operative report that indicates the specific product used,” she says. “Once we have that information, we can establish whether there is a class action involving that product and whether the deadline to opt out of that class has passed.”