Clients approach their defective product cases in different ways. Some call me with an injury caused by a medical device and say, essentially, “figure it out.” I have no problem with a client taking this position. Others keep detailed notes and meticulous records and send me a package of documents that can be several inches thick. I never require a client to do this initial “leg work,” but it can often jump start a case against the device manufacturer. If you are inclined to be more involved in the process, at least early on, I have noted some important tasks below you can accomplish to launch your hernia mesh case.

Let’s start with two assumptions: (1) you had hernia mesh implanted in your body in the past, and (2) you have suffered injury because of the hernia mesh. Where do you go from there?

Identify Your Product

It starts with this. The first and best place to go for this evidence is the product stickers page. These product stickers are found with the hospital’s medical records from the original implant surgery. It will look like a sheet of paper with a label or labels (“stickers”) attached to the page. These product stickers will identify (often in very small type) the manufacturer, the reference number, the catalog number, the lot number. It will likely mean very little to you when you see it, but trust me, it is an important document. I will say this: when a new client calls me with a mesh injury and promptly sends me the product stickers page, I know we are off to the races.

Caveat: the product stickers page is not always available. I’m not sure why, but occasionally a hospital will throw away the product stickers. It is an awful practice. In that case the hernia mesh must be identified through the implant surgery records (such as reference to the product in the operative note) and in a last resort through the billing records from the hospital. In some cases I have gotten the implant surgeon to sign an affidavit attesting to the specific product implanted. No matter how we get it done, we must identify the product implanted.

Gather Medical Records

This step is related to the step above, but involves more information and more documentation. You will need to contact all your medical care providers and ask for all medical records relating in any way to your hernia mesh surgery, as well post-surgery treatment. This would include implant and revision operative reports, discharge summaries, pathology reports, hospital notes, and other information gathered in the mesh implant surgery. These documents are the foundation of a strong hernia mesh lawsuit.

Identify Your Injury

Virtually all injury begins with the onset of pain or discomfort. But for a successful hernia mesh case, we will need to get specific. In most hernia mesh cases, there will have been a medically necessary revision surgery. The hernia mesh is implanted, it causes complications and pain, and it has to be removed. (That is, if it can be removed.) In normal medical procedures, revision surgeries should not be necessary; therefore, revision surgeries are inherently an injury to the patient. Beyond that, it will be important to identify the specific kind of injury the hernia mesh caused. Hernia mesh frequently causes adhesions, which are bands of scar tissue that bind organs or tissue together. Hernia mesh also causes inflammation, scarring, folding or curling, rejection, allergic reactions, and other serious complications. These injuries will likely be described in the medical records.

This step is important for a secondary reason: so we can identify whether the injury was caused by something other than the failure of the hernia mesh. In some cases after hernia mesh surgery, injury can occur because of surgical infection (that is, infection shortly after implant surgery), from other surgical complications, or even from an outside trauma (like a bad fall or a car crash).

Chart Your Hernia Mesh Timeline

You will need to confirm the dates of implantation, the identify the dates of onset of symptoms, the date of revision, and the dates of further revisions (if more revisions happened). Beyond that, you can use the product stickers to identify the hernia mesh implanted, and you will want to identify the hospital where you had the mesh implanted, the surgeon who performed the surgery, and the location and surgeon for any revision surgeries.

Maintain a Symptoms Journal

I always encourage this. It is simple enough: When you first begin to notice any sensations or pains which seem abnormal or unexpected, write down the date and a brief description of the pains on a piece of paper (or a notes app on your smart phone). The more detail the better—note the kind of pain you feel, the location, and any other descriptions. This journal may provide important information for your doctors but also for me as your attorney when I prepare a settlement package or a lawsuit. A pain/symptoms/well-being journal can provide valuable information to an attorney putting together the best case for you in the event you have a viable claim against a manufacturer for a failed hernia mesh product.

Contact a Good Product Liability Lawyer

Remember, you are not expected to do the work listed above. I have done this investigation often and I have gotten quite efficient at putting together strong cases. If you had hernia mesh revision surgery, you can contact me and ask me to sort it all out. So give me a call ((919) 830-5602) or use the contact form on this page to launch your hernia mesh case.

Note: A version of this article appeared on this site in July 2017.

Product Stickers: The Gold Standard

It all sort of starts with “product stickers.” These are the identifying stickers that are attached to the box containing the medical device, and they can be peeled off and affixed to a nurse’s hospital note or to another page in the hospital or surgeon’s record for the implant surgery. It goes something like this: the representative for the device maker shows up with the artificial hip components (or other medical device). The surgical nurse or the surgeon will double check that the components are the precise ones needed for the surgery, scan them into the system and note them in the record. The nurse will then peel off the product stickers and attach them to the hospital record and include them with all the other pages of documents explaining details of the surgery. The image at right is an approximation of what the stickers will look like: a bar code, the name of the manufacturer, the specific product name, the Lot and Reference numbers, and other identifying information.

Hospital Records: Typed Identification of Specific Components

For some reason, not all hospitals and surgery centers keep product stickers. Some simply throw them out with the boxes. It is not a good practice, but it happens. In those cases the person responsible for identifying the components usually types in the specific lot and reference numbers and other identifying information for each device component used in the surgery.

Operative Report

In any surgery the surgeon always writes up (usually dictates) an Operative Report where he or she describes what occurred during the surgery. In this report the doctor will explain the procedure and will reference the components used and implanted. In another section of this report, titled something like “Implants,” the doctor will list the specific components, with complete names and actual sizes.

Explants: Preserving and Keeping the Actual Device Removed From Your Body

The actual gun used in an armed robbery is better evidence than a description or a photo of the gun. The same holds for a product liability case involving a failed medical device. That’s why you should do all that you can to “preserve evidence” by making sure your surgeon understands you want to preserve and maintain any components removed from your body (“explants”). I wrote extensively about preserving explants here, and I invite you to read that article, but in a nutshell you need to send a letter to your physician asking her or him to preserve all evidence, especially explanted medical devices following the surgery. With written notice in advance, the doctor and the hospital usually understand the drill and will preserve the removed components, usually by sending the explanted components to the pathology department to hold the components for the patient or the patient’s attorney.

Surgeon’s Affidavit

As you can imagine, lawyers representing companies that sell defective medical devices will use every advantage to derail your case. If defense lawyers can cast doubt on what device is in your body, then you as the injured person cannot win your case. In some instances the product stickers were not maintained with the hospital records and the explanted components were not preserved. In that case, even with the typed identification of the products (see Hospital Records, above), you may need to obtain a signed and sworn affidavit from the surgeon testifying to the exact components implanted in your body. I have used this technique in the past and it has worked well.

Get Help From a Good Product Liability Lawyer

I’ve written about this subject on this site so often I’m not even going to link you to the other articles (they are easy to find). But I will say this: you need to work with an experienced product liability lawyer on any defective medical device case, and preferably before you undergo revision surgery (for several reasons, but mainly so the attorney can communicate with the surgeon and the hospital in advance about preserving all relevant evidence).

Identifying your medical device is very important. Being legitimately injured by a defective product is not enough. You have to show what product injured you. If you can’t, you don’t even know which medical device maker to sue. Put obviously: you cannot sue DePuy Orthopaedics for a defective Smith & Nephew artificial hip. So it is vital that you identify the exact components that injured you, in as many ways as possible. Good luck.