The ‘sad’ reality of Australia’s $105 million mesh settlement

Exclusive: How much is their suffering worth?

It’s the $105 million question to which thousands of Australian women have spent more than five years waiting for an answer.

For the 2600 women involved in the massive class action lawsuit against medical manufacturer Boston Scientific over its pelvic mesh devices, the wait is finally over. 

Over the past few months, class action members have been receiving their final individual notices of assessment outlining the total compensation they will be awarded for their lifelong injuries.

Several women have told nine.com.au that they are unhappy with the result, and the final figure has come as a gut-wrenching blow. 

In March 2021, Shine Lawyers launched the class action in the Federal Court, alleging that Boston Scientific’s implants were defective and carried severe, unadvertised risks of complications. 

The mesh devices were designed to treat pelvic organ prolapse and stress urinary incontinence. 

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However, as was exposed during a harrowing 2018 Senate inquiry, the implants left thousands of women enduring permanent, catastrophic complications, including agonising nerve damage, entangled organs, chronic infections, and eroded tissue.

Do you have a story? Contact reporter Emily McPherson at emcpherson@nine.com.au.

By July 2022, Shine Lawyers and Boston Scientific struck a $105 million settlement deal, hammered out on a strict “no fault” basis. 

The agreement came just months before global giant Johnson & Johnson and Ethicon settled a separate, similar mesh class action for a monumental $300 million - a landmark case first brought by Shine in 2012 that became the largest women’s health class action in Australian history. 

Unlike the Johnson & Johnson resolution, Boston Scientific’s settlement included no admission of liability.

The manufacturer continues to maintain that it stands by the quality and safety of its products.

In both historic class actions, the final payouts are highly variable, tailored to each member’s specific medical and financial circumstances. 

Settled over three instalments, the first two payments have already been distributed. 

JGA Saddler, the law firm administering the settlement scheme, is now in the process of contacting members with their final total compensation estimates, with the third and final instalment scheduled to be paid in mid-2027. 

But as the true mathematics of the settlement come to light, the initial relief has curdled into widespread fury and heartbreak.

‘They are using ill people as a business model’

For Lake Macquarie mother Karen Atkinson, the reality of her assessment notice was a shock. 

She was implanted with a mesh device in 2016, during a routine procedure for fibroids, after her gynaecologist casually suggested it as a preventative measure.

“He said to me, ‘Well, you’re not getting any younger, and as you get older everything gets a bit looser, so while I’m there, how about I put this in?’ 

“I woke up in tremendous pain.”

Atkinson said her life rapidly spiralled into a medical nightmare dominated by a severe systemic foreign body response.

“I was very sick from the mesh,” Atkinson said.

“A lot of things happened in my body that didn’t have an explanation.”

Six weeks after the initial surgery, severe bleeding led doctors to remove her uterus, mistakenly believing it was the source of the problem. 

But her health continued to deteriorate.

She developed a chronic lung condition, endured horrendous pain radiating down her leg, and suffered cognitive decline and vision loss.

Atkinson eventually had the device removed in 2018, and said she witnessed a near-instantaneous reversal of her systemic symptoms. 

Her hair stopped falling out, her fragile skin began to heal, and her memory and eyesight returned. 

However, Atkinson said she was still left with a permanent lung condition and joint inflammation.

During the court approval process for the $105 million proposed settlement, Federal Court Judge Michael Lee asked for lawyers to examine Atkinson’s case as a benchmark for damages. 

A checklist formula initially valued her claim at $320,000, before dropping it to $280,000.

“I remember the judge pulling a face and going, ‘Okay, that’s not too bad,’” Atkinson recalled. 

“But I wrote an email to Justice Lee afterwards and said, ‘I really don’t believe that’s how much I’ll end up with. I believe that Shine are just giving you that number to get you to pass it.’”

Her scepticism was justified.

When Atkinson’s final assessment notice arrived in March, it revealed a total of just $75,000.

When she called the firm to demand answers for the massive discrepancy, she was told the criteria had changed.

Worse still, the paperwork made it clear that any woman wishing to dispute their assessment may need to pay an extra fee, and a review came with the risk that their payout could actually go down.

“I succumbed, and I just accepted it because I couldn’t risk losing any more money,” Atkinson said. 

“Class actions are designed to make lawyers rich, and they just use the vulnerabilities of people for their payday. 

Atkinson said while she had no problem with lawyers getting paid for their work, it seemed like Shine was too eager to settle and avoid going to trial in the Boston Scientific class action.

“All they wanted to do was work out what their costs were, cover it, and then give us what’s left … They are using ill people as a business model,” she said.

Court documents show Shine’s legal costs, deducted from the $105 million settlement pool were about $7.5 million, while the law firm appointed as administrators of the settlement scheme took about $5 million.

Millions more must be clawed back from the remaining fund to pay statutory recoveries to Medicare and private health insurers for the victims’ extensive medical treatments.

Craig Allsopp, Shine Lawyers head of class actions, told nine.com.au: “Shine secured a $105 million settlement in the Boston Scientific matter, which was filed on 22 March 2021 and settled by 16 March 2023, which is a swift timeframe to achieve a resolution for any class action.”

Shine has previously told nine.com.au it was proud of its results in both the Boston Scientific and Johnson & Johnson mesh class actions. 

The class actions were an important vehicle for justice which allowed women to receive compensation without taking on the burden and risk of individual litigation, Shine said.

‘People probably think we’ve made millions’

However, another class action member, Helena, who requested to use a pseudonym, shared a similarly devastating outcome to Aktinson.

An active mum and a former professional netballer, Helena agreed to have the mesh inserted in 2020 during a scheduled hysterectomy to treat minor stress incontinence.

“I was only wetting myself if I ran or if I coughed or sneezed. I thought it’d be great to get it done so I could get back into the sport,” Helena said, adding she was given no warning of potential complications.

By 2021, while travelling Australia in a caravan, she was hit by constant, inexplicable infections that left regional GPs baffled. 

Then, last year, the complications manifested as excruciating nerve pain tearing through her legs and groin. 

“I used to sit on the lounge room floor every night, with heat packs, ice packs, multitudes of pain relief,” she said.

Though she had the embedded mesh completely removed during a complex four-hour surgery late last year, the damage to her anatomy was already done. The intense nerve pain subsided, only to be replaced by a new, degrading reality.

“Now I have uncontrollable leakage and I live full-time wearing pads every day. It’s not when I cough or sneeze, it’s just any movement in a vertical manner. And I sleep in an adult nappy because I can’t control it.”

Helena, who previously received a state government compensation payout for an unrelated psychological workplace injury, said her workplace claim was handled with far more dignity and resulted in a higher payout than what she received for the mesh class action. 

Her final Boston Scientific settlement came in at $74,500.

“I’m dumbfounded,” Helena said. 

“People probably think we’ve made millions out of this, but that’s not the reality. $74,500 is definitely not enough for what I’ve got to live with for the rest of my life.”

A legacy of heartbreak

For Queensland mother-of-five Kathy Robertson-Cipak, the finalisation of the settlement represents an absolute “travesty of injustice.” 

Following her own catastrophic mesh surgery in 2018, Robertson-Cipak spent years cold-calling law firms, helping to gather the injured women together to get the class action off the ground. She even forfeited her own right to private litigation to pursue the collective case.

“I never expected such heartbreak,” Robertson-Cipak said of how the class action turned out. 

“It has shattered me. I can’t go and earn money anymore. I can’t go and get a job.”

Her primary motivation was never just financial; she wanted to force big pharma to pull the product from the market entirely to protect future generations.

Seeing the corporate giant walk away without admitting fault, while the women are left with fractions of what they expected, had been devastating, she said.

While Robertson-Cipak chose not to disclose her final settlement figure publicly, she said it was completely swallowed by the years of lost income she has already endured and faces in the future.

Robertson-Cipak runs a Facebook group for hundreds of women who were implanted with mesh.

She said many were frustrated and baffled by their final settlement figures.

“The bafflement of some women who have been left permanently and devastatingly maimed getting given low amounts... it’s an absolute disaster,” she said. 

“I talk to so many women in private, and my heart just explodes.

“A lot of the elderly ones have had nothing, they’ve got no family, they’ve got nobody.

“In the long run, no one’s been made accountable, yet we will suffer every day.”