Makers of faulty hips urged to speed up legal action to compensate patients

23 November 2011
Class action law firm Maurice Blackburn is urging the makers of a faulty hip implant to negotiate a fair compensation regime for hundreds of Australians who were implanted with the devices.

Commenting on the Senate Community Affairs Committee's Inquiry into the Regulatory Standards for the Approval of Medical Devices, Julian Schimmel of Maurice Blackburn Lawyers said:

"Among other things, the Senate inquiry looked at the effectiveness of regimes to identify medical devices with high rates of revision.  Unfortunately, the high revision rate for the DePuy ASR hip implant has caused medical problems for hundreds of Australians who trusted that the implant would restore their hip joint function," Mr Schimmel said.

"We hope that implementation of the Inquiry's recommendations will avoid another disaster like this."

DePuy and Johnson & Johnson Medical, the manufacturer and distributor of the ASR hip implants, have lodged legal documents with the Federal Court in Sydney denying there is an increased risk of failure of the implants, after the first Australian class action was launched in February this year.  Over 450 people have registered for the Maurice Blackburn class action.

"During the Senate inquiry, Johnson & Johnson Medical acknowledged and apologised for the enormous impact this recall has had upon patients. They claimed they are doing what they can to minimise the impact of the recall. They also said they may consider compensating some individual claimants, however defending the class action is not consistent with this claim," Mr Schimmel said.

"We urge DePuy and Johnson & Johnson Medical to sit down with us and work out a comprehensive compensation regime that will bring justice to all victims of this faulty device," said Mr Schimmel."
 
The class action returns to the Federal Court in Sydney in early December.

Background

Two types of metal-on-metal hip implant systems are involved in the class action - the DePuy ASR Hip Resurfacing System and the DePuy ASR XL Acetabular System.

The devices were made in the UK by DePuy International Ltd and distributed in Australia by Johnson & Johnson Medical Pty Ltd.

DePuy and Johnson & Johnson Medical have filed defences following Maurice Blackburn's launch of the class action in which they have denied many of the allegations including that the ASR hip implants are the cause of patients' problems.

Mr Schimmel said claimants who had either of these hip implants inserted and were injured by them had a very strong case for compensation.

"Johnson & Johnson Medical issued a Hazard Alert in August 2010 and DePuy did likewise in the UK.  The companies are offering to pay patients' medical expenses, so it is surprising that they are denying the majority of the allegations in the class action," he said

"They deny the devices had an increased risk of failure, they deny there is an increased risk of patients developing subsequent pain, swelling and reduced hip movement and they deny that the hip implants had an increased risk of producing metal wear debris. 

"DePuy and Johnson & Johnson Medical do not even admit that the devices were acquired by patients for the purpose of being surgically implanted or that this was done in order to facilitate or restore hip joint function. 

"We have been contacted by hundreds of people who are concerned about the long term effects these implants are having and they are angry about the way it has impacted on their lives.

"Many have already had revision surgery to replace their failed ASR hip implant. Others are soon to experience the pain and suffering that inevitably follows such an invasive operation and the number of people requiring revision surgery continues to grow.

"In addition, the failure of a hip implant can make it harder for a second hip replacement to be successful after the faulty implant is removed.  Sadly, many people with these faulty devices have have been left incapacitated when the purpose for the original implants was, of course, the exact opposite."

It is alleged that DePuy and Johnson & Johnson Medical have breached the Commonwealth Trade Practices Act 1974 by selling a product that was not fit for its purpose and was not of merchantable quality.  It is also alleged that the companies have been negligent because they failed in their duty of care to users of these implants.

"At the recent Senate inquiry, Johnson & Johnson Medical apologised for the impact that the recall of the ASR hip implants has had upon patients and their loved ones. They said they are doing what they can to minimise the impact of the recall. However, defending the class action is not consistent with this claim," Mr Schimmel said.

"Rather than defend the class action, we urge DePuy and Johnson & Johnson Medical to talk to us about a comprehensive compensation regime that will deliver justice to victims of this faulty device.

"In denying their liability they are putting the victims of this faulty product through further suffering."

The next directions hearing in the class action is on 2 December 2011 in the Federal Court in Sydney.

*DePuy and Johnson & Johnson are subsidiaries of the US based global health care company Johnson & Johnson, Inc.

For further information please call 1800 810 812, or view our Depuy Class Action page here.

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