As many Americans have become aware, Johnson & Johnson recently issued a massive artificial hip recall. More specifically, the company’s DePuy Orthopaedics, Inc. unit issued the recall. The product was the much-used metal ASR artificial hip, implanted in about 93,000 patients. According to DuPuy, these artificial hips were found to fail at a “higher-than-expected” rate. But independent data shows a six-year failure rate of 49 percent – four times even the number admitted by DuPuy.
Specifically, the ball-and socket portion of the hip ground away with movement, causing metal debris to accumulate around the implant. This in turn caused muscle and tendon damage and other complications.
What this meant for patients who had received the hip was pain, joint dislocation, and even irreversible damage to the central nervous system, the thyroid, or the heart.
Experts estimate that the company could face billions of dollars in costs connected to this latest recall, making the scope of the company’s liability phenomenal even by medical products liability standards. In fact, there are already thousands of lawsuits pending against the company is federal and state courts across the nation.
Rather than face up to its responsibility to the thousands of people injured by these defective implants, the company has chosen another route. DePuy has hired Broadspire Services Inc, a company specializing in the management of workers compensation and other medical claims for insurance companies and employers. Broadspire Services will “administer” patient claims for out-of-pocket medical costs associated with the recall.
Understandably, this move has prompted outrage in many circles. First and foremost, this move takes the decision as to whether a recalled hip should be removed or replaced out of the hands of a patient’s own doctors, substituting the judgment of Broadspire’s staff physicians.
Naturally, Broadspire cannot actually determine the course of a patient’s treatment. But, by determining whether or not DuPuy will pay for the replacement, that is often the practical effect. No matter how indirect the relationship between Broadspire’s doctors and DuPuy, research shows that conflicts-of-interest affect even the best-intentioned of doctors and businesspeople. Whatever the financial incentives, our injury and wrongful death lawyers are concerned that DuPuy found this action appropriate, and hope that other companies do not follow suit.
And in the process, Broadspire – and, by extension, DePuy – receives information and records concerning the patient’s injuries and condition that would otherwise remain confidential unless an until a case advanced to discovery. In fact, Broadspire is demanding even more information than it could obtain in litigation. For example, the company is demanding that the patient’s physician speak privately with a Broadspire physician before a replacement is approved.
Even before Broadspire was involved, DePuy was overstepping its bounds as to patient confidentiality. Upon originally announcing the recall, DePuy sent orthopedic surgeons packets of information to be sent to patients. The packets contained not only information about the recall, but also a medical release for patients to sign, stating that in order to receive more information and have their claims processed efficiently, they should authorize their physician to release their information to DePuy.
As shocking as this is, the situation is even worse. DuPuy actually offered these orthopedic surgeons $50 for every patient who completed the forms.
If you received a DuPuy artificial hip, we urge you to talk to an attorney, and to do so before signing any forms related to your hip – even if those forms are given to you by your doctor. It appears that DuPuy’s strategy is to attempt to obtain releases or even settlements before patients truly understand their condition, or their rights.
For a free consultation with one of Passen & Powell’s top-rated Chicago injury lawyers, call us at (312) 527-4500.
