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Sunday, November 4, 2007

Hernias: The Next Step in Compensating Workers

One of the major flaws of workers compensation acts is that deny injured workers payments for repaired hernia by establishing specific requirements for compensability.. Historically the workers’ compensation acts denied benefits since employers feared a flood of these occupational claims. In many jurisdictions special notice provisions exist and limitations have been impressed upon permanent disability benefits.

Hernias are very common and over 25% of the population suffer from this condition that involves a weakness in the abdominal wall caused by a variety of events including excessive straining, chronic constipation, obesity, physical activity and persistent coughing.

Surgeons have employed a variety of techniques in an effort to repair these defects. Since late 2005, a widely used procedure has been the insertion of Kugel mesh. This product adhered to the abdominal wall and also allowed the bowl to permit bodily products to flow through the digestive stem without obstruction. Unfortunately this products was defective and caused a rupture and/or a blockage of the intestines. The FDA initiated Class 1 recall of this product commencing on December 2005. (Dec. 22, 2005) The FDA classifies medical device recalls into three levels with the most critical and one the Agency deems that there is a “reasonable probability that the use of or continued exposure to a volatile product will cause serious adverse health consequences or death.”

Despite the inadequate remedy available in most jurisdictions, a remedy now exists for recovery for individual personal injury claimants in both state and federal court which would include negligence, intentional and negligent infliction of emotional distress, violation of state deceptive practices act, breach of of implied warranty of merchantability, failure to war and unjust enrichment. Class actions have been initiated in various states and a Federal Multi-District Litigation (MDL) In re: Kugel Mesh Hernia Patch Litigation, MDL Docket No. 07-1842 ML (D.R.I.). has been established for medical monitoring and economic injury

For further information please contact our office. Jon Gelman