DePuy ASR Defective Hip Implant Recall - September 2011 - One Year On
The following is a recent blog post: Through this blog over the last year I have written on two previous occasions about the DePuy ASR hip implant recall and now I turn again to the topic because it affects so many people here in Tipperary and in the southeast in general. I have a particular interest in this issue because my practice is currently representing the largest number of litigants against DePuy in Ireland. Those affected are by now quite familiar with the issues and have either had to have painful surgery to have the defective artificial hip implants removed, are awaiting such surgery or are going through the indefinite review process where they are hoping they will not end up among the unlucky one who will need such surgery in the future. All have been distressed to one extent or another by what has been described by orthopaedic experts as the biggest disaster in orthopaedic surgery history.
Over recent weeks however, I have been contacted by clients right across the county worried by ads and radio interviews by other legal firms claiming that there is a “deadline” approaching this August by which they must have instructed a solicitor and instituted legal proceedings, failing which they will not be able to recover compensation should they suffer harm from their implant. Here in Tipperary, East to Wexford and Waterford, South to Cork and even West to Galway, Sligo and Mayo, clients have asked me what are these ads talking about, what is this “deadline”. My answer has been simple – there is no “deadline” on the 26th August as has been suggested and there is no reason to be frightened into precipitous action by this type of advertising.
The position in law is quite clear. If you are affected by the DePuy ASR hip implant recall, the issue is primarily related to a harm caused by a defective product. The law on harm or injury caused by defective products, whether that product is an appliance such as an electric toaster or a precision medical device such as the DePuy ASR hip implant is governed by the Liability for Defective Products Act 1991. That Act clearly states that if you have suffered such harm or injury or loss, you have 3 years from the date of knowledge of such harm or injury within which to commence legal proceedings. Last year this issue came before the High Court where it was argued by a defendant that the 3 year period had been amended by subsequent legislation to 2 years (2 years being the current “statute of Limitations” period for most personal injury type actions) but the High Court confirmed that the limitation period for Defective Products remains at 3 years.
It is therefore clear that any person who is harmed by a DePuy ASR implant has 3 years from the date that they have knowledge of such harm to institute proceedings.
Now deciding when a person has “knowledge” of harm is never easy, but given patients implanted with the DePuy ASR products were not made aware of a recall until some date after the recall in August 2010, I think it is irrefutable that they could not have knowledge of harm until some date on or after the date when their surgeon or some other doctor would tell them that their implant was causing them harm and typically that would be accompanied by the unwelcome news that they would need to have the implant removed and replaced.
Every case must be considered individually and for some who have had their implant replaced on or before the announcement of the recall, it is clearly arguable that the 3rd anniversary of the recall will be an important date but that is still more than a year away. Next come the patients, and I act for many of them, who have had to have their implant replaced - “revised” in the medical jargon – since that August 2010 date. These patients will be counting 3 years from the date they were told there was a problem. Most patients are still being reassured as to the good functioning of their implant and hopefully, they will remain among the likely majority of ASR recipients who will go on to have a good experience with the product and not need further surgery during the normal life of the product which seems to be a flexible thing but generally somewhere between 15 and perhaps even 20 years.
One troublesome issue remains and that is for those patients who have a well-functioning implant but have suffered a lot of stress and worry because of the understandable fear that comes from having a potentially harmful product in their body. This road has already been travelled by litigants such as workers in Athy at the Tegral factory who in some cases were frightened to the point of suffering ill-health by the potentially fatal harm that can be caused by working with asbestos. I know from my discussions with lawyers for DePuy that they expect such cases but these cases will certainly be at the more difficult end of the spectrum. From my own experience, many people with ASR implants that are still functioning well have suffered a lot of stress and worry about the potential harm that could be happening to them, the fear of the ‘ticking time bomb’ so to speak. Again such cases, of very real harm and injury would have to be taken within 3 years of learning of that potential for harm and again it seems unlikely that could be argued to have begun before learning of the product recall in August 2010.
As with most things in law, there are other arguments to base one’s case on. If for example an injured person successfully argued that surgeon had failed to advise them that there were other types of hip implant that had much better success rates and had that advice been given, the patient would have opted for a different implant, then an action could be taken for a lack of informed consent to the surgery and the limitation period within which an action could be taken would be 6 years of the date of knowledge of the lack of informed consent. Similarly if the hip failed because of basic surgeon error in the course of the surgery then it would be an entirely different type of case, one of medical negligence, and the time limit is 2 years from the date of knowledge of such an error - but these secondary arguments will only affect a small minority of patients affected by this DePuy ASR issue.
The conclusion therefore is that patients affected by this very serious issue should not be needlessly alarmed by ads warning them of a deadline this August as no such deadline exists.
Over recent weeks however, I have been contacted by clients right across the county worried by ads and radio interviews by other legal firms claiming that there is a “deadline” approaching this August by which they must have instructed a solicitor and instituted legal proceedings, failing which they will not be able to recover compensation should they suffer harm from their implant. Here in Tipperary, East to Wexford and Waterford, South to Cork and even West to Galway, Sligo and Mayo, clients have asked me what are these ads talking about, what is this “deadline”. My answer has been simple – there is no “deadline” on the 26th August as has been suggested and there is no reason to be frightened into precipitous action by this type of advertising.
The position in law is quite clear. If you are affected by the DePuy ASR hip implant recall, the issue is primarily related to a harm caused by a defective product. The law on harm or injury caused by defective products, whether that product is an appliance such as an electric toaster or a precision medical device such as the DePuy ASR hip implant is governed by the Liability for Defective Products Act 1991. That Act clearly states that if you have suffered such harm or injury or loss, you have 3 years from the date of knowledge of such harm or injury within which to commence legal proceedings. Last year this issue came before the High Court where it was argued by a defendant that the 3 year period had been amended by subsequent legislation to 2 years (2 years being the current “statute of Limitations” period for most personal injury type actions) but the High Court confirmed that the limitation period for Defective Products remains at 3 years.
It is therefore clear that any person who is harmed by a DePuy ASR implant has 3 years from the date that they have knowledge of such harm to institute proceedings.
Now deciding when a person has “knowledge” of harm is never easy, but given patients implanted with the DePuy ASR products were not made aware of a recall until some date after the recall in August 2010, I think it is irrefutable that they could not have knowledge of harm until some date on or after the date when their surgeon or some other doctor would tell them that their implant was causing them harm and typically that would be accompanied by the unwelcome news that they would need to have the implant removed and replaced.
Every case must be considered individually and for some who have had their implant replaced on or before the announcement of the recall, it is clearly arguable that the 3rd anniversary of the recall will be an important date but that is still more than a year away. Next come the patients, and I act for many of them, who have had to have their implant replaced - “revised” in the medical jargon – since that August 2010 date. These patients will be counting 3 years from the date they were told there was a problem. Most patients are still being reassured as to the good functioning of their implant and hopefully, they will remain among the likely majority of ASR recipients who will go on to have a good experience with the product and not need further surgery during the normal life of the product which seems to be a flexible thing but generally somewhere between 15 and perhaps even 20 years.
One troublesome issue remains and that is for those patients who have a well-functioning implant but have suffered a lot of stress and worry because of the understandable fear that comes from having a potentially harmful product in their body. This road has already been travelled by litigants such as workers in Athy at the Tegral factory who in some cases were frightened to the point of suffering ill-health by the potentially fatal harm that can be caused by working with asbestos. I know from my discussions with lawyers for DePuy that they expect such cases but these cases will certainly be at the more difficult end of the spectrum. From my own experience, many people with ASR implants that are still functioning well have suffered a lot of stress and worry about the potential harm that could be happening to them, the fear of the ‘ticking time bomb’ so to speak. Again such cases, of very real harm and injury would have to be taken within 3 years of learning of that potential for harm and again it seems unlikely that could be argued to have begun before learning of the product recall in August 2010.
As with most things in law, there are other arguments to base one’s case on. If for example an injured person successfully argued that surgeon had failed to advise them that there were other types of hip implant that had much better success rates and had that advice been given, the patient would have opted for a different implant, then an action could be taken for a lack of informed consent to the surgery and the limitation period within which an action could be taken would be 6 years of the date of knowledge of the lack of informed consent. Similarly if the hip failed because of basic surgeon error in the course of the surgery then it would be an entirely different type of case, one of medical negligence, and the time limit is 2 years from the date of knowledge of such an error - but these secondary arguments will only affect a small minority of patients affected by this DePuy ASR issue.
The conclusion therefore is that patients affected by this very serious issue should not be needlessly alarmed by ads warning them of a deadline this August as no such deadline exists.
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As with all legal issues, if a person has been affected by the recall and has not already sought legal advice, they should certainly do so immediately. Advice can them be obtained and what reassurances as are appropriate can be obtained. One should never delay in instructing a competent solicitor if there is an issue but neither should one be frightened into premature legal proceedings by a phantom “deadline”.
If you have a query regarding this article you can contact Cian O’Carroll Solicitors on |
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