About 3,500 Irish people affected by the recall by DePuy Orthopaedics of its ASR hip-replacement products must decide what action to take
THE RECALL by DePuy Orthopaedics of its ASR hip-replacement products last month has affected about 3,500 Irish people. Many are now anxiously discussing with their orthopaedic consultants what happens next.
It is estimated that for about 400 of those, revision surgery may be necessary. But, if you are affected by the recall, before you rush out to get the problem fixed, solicitors are urging caution, as many people may have compensation claims against the orthopaedics company.
Am I entitled to compensation?
While there has been no admission of liability or negligence on the part of DePuy Orthopaedics or its parent company Johnson Johnson, proceedings have already begun against the firm in the US.
“It’s fairly clear that they have an exposure here,” says John McCarthy, a partner with McCarthy & Co Solicitors in west Cork.
While the manufacturer has indicated that it will bear the “reasonable and customary” costs of doctor visits, tests and operations arising from the recall, this may not be sufficient, as it is anticipated that those who have received the device may suffer long-term medical problems.
“We understand that DePuy intends to cover reasonable costs for monitoring and treatment for problems associated with the product recall. However, this does not include redress for the pain, anxiety and suffering experienced by patients who have been implanted with a faulty system and may now need to under go surgery again,” says Michael Boylan, a partner with Augustus Cullen Law.
How should I proceed?
If you have had your hip replaced, the first thing you need to do is ascertain whether or not you were implanted with the offending system. This information can be obtained from your GP or directly via the hospital.
While McCarthy asserts that “medical steps should take priority over legal action”, he suggests that it might be “no harm” to get your solicitor to consult with the hospital on your behalf in the first instance.
Already DePuy has issued a patient-consent form, which authorises it to obtain a patient’s medical records and to carry out tests on any removed ASR product components.
But McCarthy describes the manner in which the firm has tried to get people to sign consent forms as “highly questionable”, because signing the form could be “extremely prejudicial” if you were to bring a case against the firm.
Indeed, Lorna McAuliffe, a partner with Reddy Charlton McKnight, urges those affected by the recall not to sign this form. “Individuals must not sign this form, or any form which enables access to their medical records or personal information in this manner,” she advises.
How much compensation might I be entitled to?
Under the Liability for Defective Products Act 1991, there is no maximum amount which can be awarded in damages. However, according to McCarthy the likely size of the award will depend on two factors: (1) the incidental costs associated with the recovery surgery, such as lost wages and medical expenses; and (2) the level of pain and suffering incurred as a result of the hip replacement, as it is anticipated that some patients will have issues for the rest of their lives.
“It’s virtually impossible to put a number on medical negligence cases,” he says, adding that each case will be seen very much on a personal basis.
Will I have to pay legal fees to take a case?
If your case is successful, then you will be entitled to have your legal costs paid by the defendant on top of any damages you may be awarded. However, if unsuccessful, there is the potential to be stuck with significant legal fees.
But, given that many medical negligence cases are undertaken on a “no win, no fee” basis, you should discuss with your solicitor as to whether or not this might be a possibility.
How long will the case take?
If, following the submission by your solicitor of your claim, DePuy accepts liability and offers to pay damages, then the process may not take too long. If, however, the multinational decides to fight each case, then it would go to court and could take several years to be resolved.
Those affected should be aware that there are statutory time limits that curtail the timeframe within which they can issue proceedings. According to McCarthy, for personal injuries you have two years from the date you discovered the issue to submit your case.
