With Transvaginal Mesh (TVM) litigation in its early stages and many attorneys and law firms building their inventories of plaintiffs, proper handling of case intake is a crucial element.
“If you do not have women involved in the intake of cases in your law firm, you are making a large, large mistake. Women do not want to talk to men initially about these issues. As you’re running your shop and as you’re trying to deal with these TVM patients, train females in your office to be involved in the intake,” said Henry Garrard of Blasingame Burch Garrard Ashley, P.C. speaking at the HB Litigation Conferences Transvaginal Mesh Litigation Conference on Oct. 4 in Amelia Island, Fla.
Garrard says that his firm uses two lawyers, three nurses and one senior paralegal—all females—who have been specifically-trained to handle the issues involved with TVM patients.
“Something else we have learned in our experience here is that some of the social issues and side issues may be as important in these cases as the physical issues are. There are psychological issues that may or may not be related to the mesh, but they do impact the cases. Remember, you’re taking on extremely serious cases … for the women who have been affected by this material, it is extremely serious and in many of their lives it is life altering,” Garrard said.
Jeffrey Kuntz of Wagstaff & Cartmell, also speaking at the conference, said that a big question for attorneys considering new cases is what records do they need to obtain to figure out whether a case is worth pursuing or to confirm product identification.
“By law, the doctors are supposed to put an implant sticker in the medical records. But anybody that’s ever looked at these records knows you only find it 30 or 40 percent of the time and it’s never where it’s supposed to be—a lot of times it’s just not there,” he said.
“So, if you’re screening a case, you need to get all the initial hospital records, the nurse’s notes, all the operative records, and any pre-operative standing orders or inter-operative standing notes, because that’s where you’ll find that sticker. Sometimes you’ll even find it in the anesthesia records. But as a last resort, check the itemized billing records. The product’s usually listed there because as we know, they’re not giving these things away for free. Keep in mind though, you have to get those quick because the hospital will sometimes keep a billing record but will get rid of the actual itemized billing record,” said Kuntz.
Kuntz continued that he thinks that TVM litigation will be a “tough battle” because it is not likely that all the cases will be consolidated in a Multi-District Litigation (MDL).
“There may be separate MDLs for separate manufacturers of products, so it’s going to be tough to keep everybody coordinated and on the same page and to keep rulings on experts consistent,” he said.
Another challenge will be the fact that there may be a limited amount of expert witnesses, due to the specialized nature of the procedures, and treating physicians willing to testify, due to their relationships with the manufacturers, said Kuntz.
Click here to purchase the video package from the October conference.