Recently, at the end of August 2010, Johnson & Johnson, along with its DePuy Orthopaedics subsidiary, announced that it is recalling parts used in hip replacements. The recall includes the DePuy ASR XL Acetabular System – the cup portion of a replacement hip joint – and the DePuy ASR Hip Resurfacing System. There are an estimated 93,000 people that have the defective hardware implanted. The recall came on the heels of the National Joint Registry of England and Wales report, which found that one eighth of all patients with the ASR hip replacement had to suffer repeated surgery to make adjustments to the device within five years of receiving the implant. Many patients have had multiple surgeries and severe complications; now we know why.
Currently, DePuy’s own website is telling patients that they need to contact their surgeons immediately to discuss all the available options. The website is also telling patients “Your safety and health is important to DePuy and we do not want cost to be a barrier to treatment.” The website goes on to explain that DePuy intends to cover the reasonable and customary costs of testing and treatment, including surgery. However, DePuy wants you to incur those costs and then seek reimbursement. In other words, they do not want cost to be a barrier, but the patients will have to incur the cost, submit it for a review by DePuy, and then maybe DePuy will provide reimbursement – if the charges are “reasonable.” What about the compensation for the pain and suffering, the mental anguish, the physical impairment, the physical disfigurement, and the loss of wages and earning capacity? What about the damages suffered by the spouses of those affected by this defective product? At first blush, DePuy’s commitment to reimburse its patients looks legitimate; however, they have made no promise to provide compensation for the damages listed above, despite the fact that the law says they are all legally recoverable by one injured by an unreasonably dangerous and defective product.
DePuy’s website also tells patients that the defective product creates metal particle debris in the joint, which can cause fluid to collect in the joint and the muscles surrounding the joint. According to DePuy, “if left untreated, this reaction may cause pain and swelling around the joint and could damage some of the muscles, bones, and nerves around the hip.” The website even goes on to say that the creation of the metal particle debris by the DePuy product was “an expected process.” This is baffling to me. Why would this be an expected process? Was it communicated to the patients that received these defective hip implants…before they received them? In any event, more will surely come to light in the next few months. What is abundantly clear now, however, is that those folks out there who were unfortunate enough to have a DePuy ASR implanted in their hips are going to be facing a long and painful road ahead.