Within weeks of the announcement that a widely used artificial hip was being recalled by its manufacturer because of high failure rates, patients who had experienced pain, mobility problems and health problems ranging from heart failure to flu-like symptoms began contacting personal injury, medical malpractice and defective products attorneys.
Nearly 1,000 Americans who had DePuy’s ASR XL Acetabular System implanted have filed lawsuits against the metal-on-metal replacement hip device maker and its parent company, Johnson & Johnson. The Wall Street Journal reported on July 8, 2011, that “a panel of federal judges has consolidated many of the hip-joint lawsuits in federal court in Ohio [and] some plaintiff’s lawyers are pushing for the court to certify the plaintiffs in the case as a class.” However the lawsuits reach court, the newspaper noted, the hip implant maker could end up paying more than $1 billion to people who can prove they suffered injuries or became sick because of problems with the ASR system.
DePuy and J&J have acknowledged that the recalled hip implant wears down much quicker than expected and that this can produce constant pain, make it difficult for implant recipients to walk and cause small amounts of the toxic metals cobalt and chromium to enter patients’ bloodstreams. The only way to relieve problems caused by the defective medical device is to have it removed and replaced in a procedure known as revision surgery. Despite the technical name, revision surgery is nothing more than a second complete artificial hip implantation complicated by having to take out the older device.
It is as yet unclear how harmful the elevated metal levels are for patients whose ASR hip implants failed, but doctors and agencies that set exposure standards for workers who handle toxic metals know that cobalt and chromium can damage the heart muscle, raise risks for strokes due to blood clots and damage the lungs.
For now, DePuy and J&J are offering direct compensation to the estimated 93,000 people around the world who need to have their ASR hip implants in the form of payments for medical exams and device-related treatments. The WSJ notes that the companies could point to that program when trying to reduce their financial liability in court. Patients and their lawyers will also be under obligation to produce medical evidence that their health was damaged and their quality of life was diminished because of the defective medical devices.
Making such a case is possible for a skilled attorney who knows how to work with and present information from medical records, expert testimony from health care providers and scientific data on risks and health outcomes from unsafe products like recalled medications. This has been shown in the cases for victims of the failed diet drug Fen-Phen, and, on a smaller scale, when one of my Virginia personal injury law firm colleagues succeeded in securing a settlement for a patient who wound up hospitalized after receiving an incorrect prescription.
EJL