Hip Replacement Recall

We have a fair number of hip replacement lawsuits at the firm, so we follow all of the news related to them, including last week’s article in the New York Times about “The High Cost of Failing Artificial Hips“, which included a key point that hasn’t received much attention in the press:

In August, Mr. Dougherty underwent an operation to replace a failed artificial hip, but his pelvis fractured soon afterward. The replacement hip was abandoned and then a serious infection set in. Some of the bills: $400,776 in charges related to hospitalizations, and $28,081 in doctors’ bills.

I can guarantee you Mr. Dougherty’s insurer, hospital, and orthopedic surgeon don’t plan on taking payment in flowers and boxes of chocolate notes. As the article continues:

The incidents have set off a financial scramble. Recently, lawsuits and complaints against makers of all-metal replacement hips passed the 5,000 mark. Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare is also expected to try to recover its costs.

While his insurer has covered his bills so far, Mr. Dougherty said he was preparing to sue his surgeon, who may have implanted the device incorrectly, and Johnson & Johnson, which produced his artificial hip, to help recoup some of the insurer’s money.

“All these payers want to be paid back,” said Matt Garretson, the founding partner of the Garretson Resolution Group, a firm in Cincinnati that manages product liability cases.

Perhaps it’s best to explain the situation by explaining what the New York Times means when it says Garretson’s firm “manages” product liability cases. We’ve retained Garretson’s firm in the past: they don’t represent clients in litigation, but rather assist plaintiff’s lawyers with “lien resolution,” a multi-billion-dollar industry that deserves a lot more attention from legislators in this day and age.
Continue Reading Subrogation, Where Much Of The Hip Implant Settlement Money Will Go

The Executive Editor of the New England Journal of Medicine recently called the DePuy ASR hip replacement recall a “public health nightmare” and a prime example for why the FDA needs to fix the “510(k) clearance” loophole that allows the sale of certain medical devices — even implants — to be sold without any clinical data or testing. The Institute of Medicine, too, has recently recommended that 510(k) clearance be eliminated.

In the meantime, 93,000 patients are stuck with defective ASR hip replacement implants with a shocking replacement rate: 21% revision rate at 4 years (up to 35% if all currently known painful implants progress to revision) to 49% at 6 years. Other hip replacement devices have a revision rate of 12% to 15% at 5 years. DePuy Orthopedics is negligent and they know it; they spend about a quarter billion dollars every four months dealing with the product recall and the litigation associated with it.

We have an active DePuy hip replacement recall practice around here, so we follow the litigation closely, and yesterday’s report by Reuters discussed one of the more disturbing turns lately:

In a highly unusual move, DePuy has hired a third party — Broadspire Services Inc, which manages workers compensation and other medical claims on behalf of insurance companies and employers — to administer patient claims for out-of-pocket medical costs associated with the recall.

The move has prompted debate among industry and legal experts. Some see it as an efficient way to outsource a process that is unrelated to making artificial hips. Others see it as a way for J&J to limit payments while gaining control of medical records and other material that could be used against patients in court. …

To critics, DePuy’s handling of its hip implant recall is designed to save money by potentially settling claims with patients before they fully understand their legal rights, or the likely cost of their hip-related medical costs in the future.

Indeed, that’s exactly what Johnson & Johnson (which owns DePuy Orthopedics) and DePuy are trying to do: manipulate patients and their treating physicians outside of the appropriate court processes.
Continue Reading DePuy Tricks Hip Recall Patients Into Losing Legal Rights