That’s the allegation lobbed by plaintiffs in tens of thousands of vaginal mesh lawsuits, and it’s now being echoed by attorneys general in California and Washington, both of whom recently filed lawsuits against one manufacturer, Johnson & Johnson, and its subsidiary Ethicon, Inc.

“For many victims, their health and quality of life were forever changed as a result of this deception,” said Washington state Attorney General Bob Ferguson.

Side effects of these mesh devices, used to treat pelvic prolapse and incontinence in women, include loss of sexual function, urinary dysfunction, severe pain and constipation. For some women, there is no position that is comfortable anymore. It’s not just the loss of intimacy with their partners, but being unable to sit upright, lie on their side or walk a few steps without incredible pain. 

Speaking at a press conference announcing the lawsuits, one woman from Seattle revealed that she had vaginal mesh surgically inserted at the same time as her hysterectomy, per her doctor’s recommendation, as a way to help deal with her ongoing issues with incontinence. But three years later, not only did her incontinence not get better, it got worse. Plus, she’s had to deal with severe pain, numerous urinary tract infections and constant, agitating itch. What was previously a minor incontinence issue is now so serious, she has to either leave work or keep several changes of clothes with her so that she can cope with the constant accidents that occur as a result of the damage done by the mesh.

She is one of tends of thousands of woman who have already filed personal injury lawsuits against manufacturers of these devices. Johnson & Johnson is a major player, as is Endo International, based in Ireland, and Boston Scientific in Massachusetts.

Two years ago, Endo settled 20,000 personal injury lawsuits with $830 million. Johnson & Johnson, however, still faces 35,000 lawsuits – and more by the day.

These allegations from state attorneys general allege Johnson & Johnson violated state consumer laws with false advertising, and deceptive marketing. In Washington state, where some 12,000 Johnson & Johnson meshes were implanted, the attorney general alleges the company never told patients they risked chronic inflammation, long-term risk of infections and erosion, a condition that occurs when mesh protrudes into an organ or through the vaginal wall. And again, the states allege, these were problems about which the company was well aware.

In one case from 2009, a physician sent the company an email just before he was to begin surgery on a mesh patient. He informed the company she was likely to lose all sexual function, as her vaginal length was just 3 cm. Plus, there was mesh “extruding literally everywhere.” As the doctor put it, the patient would suffer, “a permanently destroyed vagina.”

And yet, despite emails like this, the company continued selling these devices – up until 2014, when they finally pulled them from the market. Still, they have never conceded the products aren’t safe.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

State files lawsuit against Johnson & Johnson over pelvic mesh implants, May 25, 2016, Associated Press

More Blog Entries:

Navo v. Bingham Memorial Hospital – Apparent Agency, May 7, 2016, Miami Pelvic Mesh Injury Lawyer Blog

There may be one exception, though: Apparent agency.

Apparent agency, also sometimes referred to as apparent authority, occurs when a reasonable third-party believed or understood the agent (i.e., at-fault person) had the authority to act on behalf of that third-party.

The theory of apparent agency does not require that the agent actually be employed by that third party, only that it appeared so to a reasonable person.

Florida case law has provided guidance for establishing apparent agency. In the 1995 1st DCA case of Robbins v. Hess, the court held that apparent agency existed only when all of the three elements were present:

• Representation by the purported principle;
• Reliance on that representation by a third party;
• Change in position by the third party in reliance on that representation.

An example of how the theory of apparent agency may come into play in a medical malpractice case was seen in the recent Idaho Supreme Court case of Navo v. Bingham Memorial Hospital.

According to court records, decedent had suffered a broken ankle when he slipped while getting out of his truck. The following day, he needed to undergo surgery to install a metal rod.

Unfortunately, the site of that surgery became infected and decedent would need to undergo a second surgery. A few days before that surgery, he was provided with an admission form that indicated the anesthesia services provided at the facility were given by an independent contractor who would be separately billed. He signed that form.

The day before the surgery, he was given a anesthesia and procedure consent form. That document did not clearly state that anesthesia would be administered by an independent contractor who was not an employee of the hospital. That document was provided on hospital letterhead and logo.

Prior to surgery, anesthesia was admitted via spinal tap. Soon after, decedent’s oxygen levels dropped and his heart rate slowed. However, he was eventually stabilized enough that doctors continued with surgery. However, following the procedure, decedent could not be revived. He died several days later, having never regained consciousness.

Plaintiffs, representatives of decedent’s estate, filed a medical malpractice lawsuit against not just the anesthesiologist, but also against the hospital. The hospital countered with a request for summary judgment, arguing it could not be vicariously liable for the alleged negligent actions of the anesthesiologist, an independent contractor.

District court granted summary judgment and plaintiff appealed. Plaintiff argued the hospital could be liable based on the theory of apparent agency.

The state supreme court noted the two elements under Idaho law needed to establish apparent agency against a health care facility with regard to independent contractors:

• Conduct by the (hospital) that would lead a reasonable person to believe another person acts on the (hospital’s) behalf (i.e., conduct by the hospital holding out a health care professional as an agent);
• Acceptance of agent’s services by one who reasonably believes it is rendered by the hospital.

The court noted there was sufficient evidence in this case – based on the consent form signed by decedent – that the theory of apparent agency could be established and accepted by jurors.

Based on this, the state high court reversed and remanded for trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Navo v. Bingham Memorial Hospital, April 26, 2016,Idaho Supreme Court

More Blog Entries:

Bove v. Naples HMA – Florida Medical Malpractice Statute of Limitations, April 21, 2016, Medical Malpractice Lawyer Blog