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DePuy Hip Implant Recall - Frequently Asked Questions

These questions are designed to give you some idea of the background of the DePuy Hip Recall, as well as some information on the process of beginning to advance litigation in this area.

Frequently asked Questions

1. Which DePuy hip implants were recalled?

On 26th August 2010, DePuy Orthopaedics, a subsidiary of Johnson & Johnson announced the recall of its hip implants known as the ASR XL and ASR hip resurfacing systems.

2. How many persons received DePuy ASR hip implants in Ireland?

More than 3,500 hip implants were sold in Ireland before DePuy stopped production in 2009. The latest information that we are able to obtain is that approximately 3,500 hip implants were implanted in Ireland up to August 2010, the date of the recall.

3.How many persons are likely to have the DePuy ASR hip implants fail?

We do not know the answer to this question since many of the problems with the DePuy hip implants have gone unreported to date. Yet the most current data comes from the United Kingdom where there is a National Registry of Patients. The UK Registry indicates a far higher failure rate of the ASR implants. As many as one in two patients within six years of the original surgery may be forced to undergo revision surgery.

The indications delivered by many Consultant Orthopaedic Surgeons is that a failure rate of approximately 12% of patients (one in eight) who had received the ASR resurfacing device and 13% of patients (one in eight) who had received the ASR total hip replacement would require hip revision surgery. Now there must be serious concern as to whether such statistical detail is accurate in the light of the UK emerging data. On March 2011, the British Orthopaedic Association and the British Hip Society said in a statement that
Data on the DePuy ASR XL Acetabular system from four Surgeons shows the rate of second operations or revisions ranges from 21% after four years to 49% after six years. An Orthopaedic Surgeon, Mr. John Skinner, Chairman of the British Orthopaedic Association and the British Hip Society's expert advisory group on metal bearings has stated that the UK data was "probably the best indicator so far of what the failure rate is likely to be".

4.Why are the DePuy ASR implants failing?

Expert opinions suggest that the DePuy ASR implant is defective and fails due to certain design flaws. Specifically, the ASR implant is a metal on metal implant. Two failure issues have emerged with metal on metal implants:-

(i) The devices slip where the shell does not sit in place in the hip acetabulum and it resists bone growth.

(ii) The friction of metal on metal wear causes microscopic metal shavings to be released into the surrounding blood and tissue. This release of metal ion particles can cause elevated blood levels of cobalt and chromium which can cause 'metalosis' or an inflammatory reaction to the elevated metals in the tissue and the blood. As a consequence, DePuy itself has informed physicians that patients should undergo blood tests to determine the presence of certain metals including cobalt release from the metal on metal implants.

5.What type of claim may I be eligible to bring?

Legal actions may be advanced including a right to compensation for injuries sustained as a result of receipt of a medical device that is defective or fails to perform to the requisite standard. These damages may include past and future medical expenses, past and future loss of earnings, other out-of-pocket expenses and damages for pain and suffering.

6.What compensation will I receive?

If DePuy is found liable or settles with you out of Court, then you should expect to receive a Judgment or a settlement amount that will fully compensate you for your medical bills, your pain and suffering resulting from your diminished quality of life, and other financial losses. If you have suffered a personal injury, a Defendant can be held responsible for paying for your medical care, both past and to be incurred in the future, that is attributable to the defective medical device, your past and future loss of earnings and any limitations upon your ability to earn a livelihood, as well as compensation for pain and suffering. Also, in certain instances, your spouse may be entitled to an award of loss of services and emotional support.

7.Can any money be advanced by DePuy without prejudicing my claim?

It is important to carefully read and study any and all such offers to make sure there are no hidden costs or waiver of rights. At all times, consult with a Solicitor prior to signing any legal documents. Such advice can assist in revealing potential problems that may exist at a later date arising from the signing of such documentation.

At all times, Malcomson Law has been careful to ensure that clients receive appropriate advice in relation to medical authorizations, excised implants etc. This is a further area upon which advice is required.

8.How quickly must I engage a Solicitor?

You should not feel pressured to make an immediate decision by engaging a Solicitor. Obviously, focusing upon the restoration of your health should take precedence over any legal issues at this difficult time. However, keep in mind that there is a strict deadline for institution of Court proceedings. This deadline is known as a limitation period and can vary depending upon the circumstances surrounding your injury. It is of the utmost importance that legal advice is obtained in relation to the exact application of the limitation period for the purpose of protecting your legal rights and entitlements. If you fail to adhere to the limitation period then such legal rights and entitlements may be lost in their entirety.

9.What about non-medical costs that patients have?

DePuy have set up a separate facility for patients who apply for reimbursement of non-medical costs associated with the recall. Patients who wish to apply for reimbursement of such type of costs can contact DePuy's Representatives for more information who are Messrs. Thornton & Partners, Joyce Way, Park West, Dublin 13.

All Depuy recipients have been given a number - a unique patient identifier code.

Thorntons are a third party contractor hired by DePuy and Johnson & Johnson to deal with claims for medical bills of DePuy ASR hip implant recipients. Our advice to clients is not to work directly with Thorntons. It is in the client's best interests if you have any expenditure that you work through Malcomson Law for the purposes of seeking to ensure that the reimbursement of such expenditure does not compromise any civil action.

Also, Thorntons are offering only to pay patients out-of-pocket medical costs and consequently there may be issues with patient's insurance companies. In addition, certain patients have had difficulties in accessing medical care of choice arising out of limitations associated with the procedures that operate.

Crucially, Thorntons are not offering to pay for all the non-medical expenses or losses that may be associated with the defective DePuy hip implant, or for the pain and suffering endured by patients which can be included in a civil action.

10.Will I have to pay a fee for Malcomson Law's review of my case?

At our initial consultation, explanations will be furnished in respect of all the financial exposure that may exist arising out of any litigation contemplated.

11.How long will a legal action take?

At Malcomson Law, we cannot give any guarantee as to when a case will be resolved. In some instances, cases will settle to our clients' satisfaction shortly after it is commenced or perhaps even before. In other cases, a final resolution may take two years or more.

Malcomson Law works swiftly and efficiently to achieve fair and equitable compensation for our clients and to bring each case to a successful conclusion as quickly as possible, while at the same time ensuring that all legal steps are vigorously pursued.

12.Do I need a Solicitor? Why don't I just contact DePuy and work it out with DePuy or their insurance company?

It is usually inadvisable to try to resolve your own a case that involves a defective medical device causing substantial and prolonged injuries. A Solicitor can evaluate your case, advise you on your rights and entitlements, advise you as to what is the appropriate level of compensation, advise you on risk and engage appropriate experts to advise you to advance your action. Without an experienced Solicitor who delivers sound medico-litigation advice, and the experts that that particular Solicitor engages, you may never know the true value of your case.

It is important to understand that a company like DePuy and its insurers employ the services of Solicitors who seek to minimize the legal exposure and financial payments to be discharged by their client, i.e. the amount to be paid to you. In contrast, our duty is to ensure fair and equitable compensation and to maximize your entitlements to such compensation.

13.How do I select a Solicitor to represent my interests?

Obviously, this is a matter of personal choice. You should seek a law firm that fits your requirements and addresses your needs and entitlements. You should seek a law firm with substantial experience in advancing similar type actions. It is important not only to verify the reputation and experience of the Law Firm as a whole but to be certain that your case will be handled by Solicitors with appropriate knowledge and experience. Also, you should be aware that a Law Firm requires financial resources to conduct a thorough investigation to advance a case through trial and appeal if necessary.

14.What is Malcomson Law's track record in multi-party litigation?

Malcomson Law has been to the forefront in advancing medical and product liability actions in the Irish jurisdiction in the past 15 years. It has assisted various patient groups in obtaining justice for the injuries they suffered from defective products. In that regard, it has represented victims of pharmaceutical products, blood products, medical devices, etc.

We have undertaken some of the largest litigation in the history of the Irish State. Also, we have reversed full and final settlements and, most particularly, a settlement by the haemophilia community with the Irish State in circumstances where that settlement was reversed in its entirety resulting in additional compensation being forthcoming to such victims of contaminated blood products with HIV and HCV infections. We have the experience and expertise to garner the relevant experts required to advance this litigation in an effective and appropriate manner to achieve the required result. We have committed the necessary resources to achieve the appropriate result in circumstances where the process is well advanced.

For more information on the DePuy Hip Recall please click here.

This news section contains stories of interest from publicly available news sources. Where we are representing the clients referred to in the news material we will say so. Where we do not represent individuals or bodies mentioned or quoted, the inclusion of the news story in our news section is not intended nor should it be taken to imply that we act for the individual or body concerned.