From US lawsuits to Aussie courtrooms: The health class actions crossing the Pacific

The healthcare sector is facing a growing class-action threat, but the litigation is increasingly being imported rather than born at home.

Over the past decade, high-profile class actions against healthcare companies and health services have frequently followed the path already carved out by litigation, regulatory intervention or product recalls in the United States.

Medical devices have been the dominant target. Class actions concerning devices, including sleep apnoea machines and joint implants, accounted for 45% of filings over the decade. Over-the-counter medicines represented a further 35%, while health services accounted for 15% and prescription medicines 5%.

Twenty class actions were filed in Australia between 2016 and 2026, with almost half commencing in the past two financial years. Around 80% followed litigation, regulatory action or product recalls in the US, highlighting the extent to which developments in the world’s largest healthcare market can now foreshadow legal exposure for Australian businesses.

The proceedings span a broad spectrum of consumer health and therapeutic products and services. Claims have alleged negligence and contraventions of the Australian Consumer Law (ACL) involving sleep apnoea machines, contraceptive devices, joint implants and over-the-counter medicines, as well as health services such as genetic testing for IVF and cosmetic surgery.

Only 20% of the matters originated independently in Australia. The remaining 16 were follow-on proceedings where claims commenced here after litigation or class action had already taken place in the United States.

That pattern reflects the economics of class-action litigation in Australia. The local health market is comparatively small, and the costs and risks of commencing and running test-case proceedings can outweigh the potential monetary returns for plaintiffs or their representatives. But Australia’s common law framework means that causes of action resembling those that have succeeded in the US are often available domestically. Once a case has established a legal and factual pathway overseas, the risk of pursuing a corresponding Australian class action is materially reduced, while the prospects of securing a favourable settlement can improve.

The numbers suggest that this dynamic is accelerating.

Court filings reached their highest annual level of the decade in 2024-2025, with cases concerning joint replacement devices, breast implants, over-the-counter medication and talcum powder. The surge raises a broader question for healthcare companies operating in Australia on whether exposure to mass litigation is becoming less a matter of anticipating domestic claims and more a matter of watching what happens first in the US.

The outcome of the litigation to date also points to a mixed but consequential landscape.

Ten of the 20 health-sector class actions filed have resolved. Seven settled, including the $56 million Monash IVF settlement, while two were procedurally closed. The latter category includes the American Medical Systems mesh proceeding, which followed the insolvency of its US parent company. The remaining resolved case, involving Essure contraceptive devices, ended with a victory for the defendant, Bayer Australia.

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