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Compensation for patients with ASR™ hip systems

On November 19, 2013, DePuy Orthopaedics division of Johnson & Johnson and a court-appointed committee of lawyers representing plaintiffs with the DePuy ASR (Articular Surface Replacement) system announced a $2.5 billion settlement agreement. The settlement is intended to compensate ASR patients in the United States who had to have revision surgery to replace their ASR hip as of August 13, 2013. A separate pool of $475 million will cover additional payments to compensate patients who suffered more severe injuries as a result of the device implant, its removal, or its replacement.

The settlement amount is based on about 8,000 eligible patients, who now would not have to hire their own lawyers to represent them against the company for products liability, including faulty design, defective manufacturing, and failure to warn the public against known hazards.

The case was heard in the U.S. District Court of Northern Ohio in Toledo. Federal multidistrict litigation consolidated 7,000 lawsuits filed by patients who underwent revision surgery to replace the metal-on-metal implant. Court records from a previous case heard in Los Angeles uncovered an important finding: an internal 2011 Johnson & Johnson analysis expected the devices to fail in 40 percent of patients within five years of replacement. Since its introduction in 2003, more than 93,000 ASR have been implanted globally in patients. These include about 12,000 implanted in patients in the United States. The system was expected to last 15 years.

In March 2013, an L.A. jury awarded $8.3 million to plaintiffs against DePuy on the basis of defective design. The company also faces lawsuits in the United Kingdom, Canada, and Australia.

Qualified patients must register their claims by January 6

A special settlement program claims website and contact number (1-877-391-3169) have been set up for qualified hip replacement patients. The standard payment for a successful claim is $250,000, but could decrease based on age, smoking history, and implantation details. For instance, compensation could reduce to $225,000 if the patient had the device for five years or so. Payment could increase based on multiple revision surgeries or severe complications such as heart attack or pulmonary embolism. Claims must be registered by January 6.

Experts question whether the settlement will be enough to satisfy the high number of claims and some patients may decide to file their own lawsuits. It is estimated that about 10 percent of current claimants will qualify for the special pool.

The settlement follows a voluntary recall

In August 2010, DePuy issued a voluntary recall of its ASR metal hip replacement system. The company reported new data from the U.K. National Joint Registry, revealing that 13 percent of patients had to undergo a second surgery to replace the replacement. This type of surgery is known as revision surgery and can cost about $100,000. According to some sources, revision surgeries are somewhat common, but they may not be as successful as the initial implant placement.

The Food and Drug Administration (FDA), however, issued a warning against the company for insufficient testing in December 2011. The ASR now ranks as one of the most defective medical implants sold in recent decades.

The metal-on-metal ASR and other metal implant systems can lead to blood poisoning

In an all-metal system, metal components can rub against each other. This friction can happen any time the person with the hip replacement implant moves. It can cause toxic metal debris to enter a patient’s blood stream. Complications that arise include:

  • Cobalt and chromium poisoning
  • Tissue damage
  • Bone damage
  • Muscle damage
  • Crippling movement

Questions remain unanswered

For the proposed settlement to go forward, 94 percent of eligible patients have to “opt-in” to the pool. That raises some questions:

  • What happens to patients who had revision surgery prior to August 31, 2013?
  • What happens to patients harmed by the device but didn’t undergo revision surgery?
  • Can patients who have not yet had revision surgery participate?
  • What happens if more than 94 percent qualify?
  • Can patients who need revision surgery but have health issues that preclude it take part in the compensation plan?
  • Are guidelines clearly laid out to determine additional payments for severe injuries?

Doctors, lawyers, patients, and the media await answers to these questions.

DePuy Product Liability Attorneys in Chicago, Illinois

If you have had a DePuy hip replacement system implanted, contact Phillips Law Offices today to speak with an experienced Illinois products liability attorney. Call 312-346-4262 or contact us online today for a free consultation with an attorney about your case.

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