Botched Mastectomy/ Reconstruction Leads to Liability Lawsuit Against Surgeon, Mesh-Maker

Aside from skin cancer, breast cancer in the U.S. the No. 1 most common type of cancer in women – regardless of race or ethnicity. The Centers for Disease Control and Prevention reports its the No. 1 cause of death from cancer among Hispanic women and the No. 2 cause of death from cancer among others. Here in Florida, nearly 16,000 women were diagnosed with breast cancer in a single year.medical malpractice attorney

That means treatments like radiation, chemotherapy and surgery (namely, mastectomy and breast reconstruction) are among the most commonly-performed in the state. Of women diagnosed with early state breast cancer, more than one-third undergo mastectomies. Among women with more advanced stage breast cancer, nearly 60 percent undergo mastectomy, according to the American Cancer Society. Mastectomies increased 36 percent between 2005 and 2013, according to the federal Agency for Healthcare and Research Quality, including a more than tripling of double mastectomies.

Fort Myers medical malpractice attorneys know there is a lot that can go wrong in any surgery, and it doesn’t necessarily mean negligence occurred. What we as medical malpractice attorneys must show is that the care received fell below the standard quality of care for that specialty and region. Product liability cases involving medical devices or implants must generally prove the product was defective and thus unreasonably dangerous, meaning there was a flaw in the design, manufacturing or marketing. (Marketing defects involve the manner in which the product was advertised or sold.) Every company within the chain of distribution can be held liable in a product liability case.

Product Liability Lawsuit Seeks Damages for Surgery Complications

Recently, a breast cancer patient filed claims against both her surgeon and the maker of a product used in the course of her double mastectomy and reconstruction. She alleged that the complications related to her breast reconstruction surgery were possibly related to a surgical mesh implanted in her body during the double mastectomy. The Alabama Supreme Court recently ruled that while her manufacturing defect claim could not move forward because of a statute of limitations issue, her breach of warranty claim against the product manufacturer could proceed.

According to court records, the matter before the court was primarily concerned with the statute of limitations and whether plaintiff could have or should have, with exercise of due diligence, discovered the identity of the defendant product manufacturer, which had not been officially named in plaintiff’s complaint until March 2017. (Originally, she named a different defendant, who was able to prove the product in question was not made by its company.) That was more than three years after her first surgery in which the surgical mesh product used allegedly caused complications. This was outside the two-year statute of limitations for product liability claims in her state, even though she initially filed the claim within two years of that surgery. The company argued the amended complaint could not relate back to the first, and that complaints for both product defect and breach of warranty should be resolved with summary judgment in its favor.

Part of the issue here is neither side could agree on when exactly the statute of limitations began to run.

The court ruled firstly that a report submitted to plaintiff in 2016 – within the statute of limitations – was sufficient to put plaintiff on notice of defendant’s identity because it named the specific product used, even if the company name was not referenced. That meant that the product defect claim could not proceed.

However, the breach of warranty claim actually falls under “contract law,” and thus has a four-year statute of limitations, and the company had not made an argument for what that claim shouldn’t be governed by that provision.

If you have suffered adverse effects as a result of a surgery or other medical procedure, our Fort Myers medical malpractice attorneys can help you examine your rights.

Contact the South Florida medical malpractice attorneys at David J. Halberg, P.A., Attorneys at Law, by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.

Additional Resources:

Ex parte Integra LifeSciences Corporation, Aug. 24, 2018, Alabama Supreme Court

More Blog Entries:

Preventable Medical Error Caused Young Patient’s Death, Florida Lawsuit Says, Aug. 25, 2018, Fort Myers Medical Malpractice Attorney Blog