Thursday, June 28, 2012

Will DePuy ASR Hip Implant Claims be Paid Once the Statute of Limitations Has Passed?

The DePuy ASR hip implant claims are being directed through Broadspire, a leading third-party administrator to employers and insurance companies. Few of those harmed by the implant are fully cognizant of the extreme level of sophistication of such firms. Johnson & Johnson and DePuy have engaged Broadspire to engage in damage control as well as downplay the public outcry regarding the huge 2010 hip implant recall. In its role as a risk management firm, Broadspire will use the claimant data related to medical reimbursement requests to garner as much knowledge about the patients as possible.

Will Broadspire Continue to Pay Benefits?

Those recipients of hip implants who are in the throes of adverse medical events related to the hip implant should take a look at Broadspire’s website in order to fully grasp the levels the company will go to in order to use privileged medical records for the benefit of their client, Johnson & Johnson and DePuy. The Broadspire website additionally boasts of an entire panel of medical professionals at their disposal leaving one to wonder how critical patient medical files will end up being used against the victims. Since many of those harmed by the hip implant system currently rely on the reimbursement benefits which help cover co-pays and deductibles, they are questioning whether those benefits will continue. In other words, will Broadspire continue to pay those benefits following the statute of limitations in August of 2012?

Is the Reimbursement Process Contractual?

The reimbursement process currently in place for those who have suffered medical issues due to the metal-on-metal hip implant is neither a contractual nor promised benefit therefore can be withdrawn or changed at virtually any time by Johnson & Johnson and DePuy. It has been speculated that the sole purpose of Broadspire’s reimbursement program is to exert influence on victims of hip implants persuading them to forego the pursuit of a legal claim. For those claimants who may be barred from a civil claim due to the statute of limitations the question remains as to whether DePuy and Johnson & Johnson will hold up their ethical end of the bargain and continue to pay these reimbursements.

The Harmful Effects of Metallosis and Cobalt Toxicity

For those recipients of the metal-on-metal hip implant who have suffered metal toxicity, it’s important to note that the specific injuries associated are quite significant yet may not manifest for three to six years following implantation. Kidney and liver disease as well as certain types of cancer may occur as a result of the toxic metal buildup in the bloodstream but victims may not be aware of these serious diseases until much later. This means that many of those who have a hip implant may not fully recognize the extent of their injuries until after the expiration of the time limits, leaving them with little recourse. These victims deserve the same compensation for medical expenses, lost wages and pain and suffering that any victim does, yet may find that avenue lost to them forever.

The Risk to Consumers

Since the law does not specifically mandate that Johnson & Johnson and DePuy make the reimbursement payments beyond the statute of limitations, it stands to reason that they will direct Broadspire to discontinue those payments. Should recipients of hip implant systems who are currently receiving reimbursement payments risk losing those payments? Unfortunately there is nothing in writing that will prohibit these corporate giants from ceasing payments. The highly experienced attorneys who have extensive knowledge of the entire metal-on-metal hip lawsuits believe future considerations and medical expenses may be discounted unless these corporations are held legally accountable.

It is not advisable for any victim of a metal hip implant to trust in the word of DePuy and Johnson & Johnson when there is no legal mechanism in place to force them to back up that word. Recipients of the metal implants may have been exposed to much higher than normal levels of chromium and cobalt which can alter their health and their future. Some of the long-term effects from such exposure include decreased kidney function, adverse neurological effects, cardiovascular issues, hearing problems, lymphoma or disease of the thyroid gland. Because each individual’s case is unique, it must be evaluated on the specific characteristics and injury suffered.

Broadspire Already Denying Legitimate Claims

Many victims of the metal-on-metal hip implant find they have suffered significant decreases in their vitality, energy and overall health status. Tissue damage and necrosis or joint damage may have resulted by the time the diagnosis is made, leading to significant impairment of mobility and range of motion. Many recipients of these devices find they are no longer able to enjoy the activities and hobbies they once did and may not even be able to perform routine day-to-day tasks. Even so, Broadspire has routinely denied reimbursements based only on their opinion that the injuries were not directly relatable to the defective hip implant. Though the patients’ physicians have gone to bat for them, disagreeing with such arbitrary assessments, Broadspire continues to sidestep their client’s responsibility. Several victims of the hip implant have claimed significant bone loss and joint destruction only to find that Broadspire disallowed their claims, calling the injuries “chronic.”

Statute of Limitations Variations

At least twenty-eight states have product liability statutes of limitation which are two years or less, therefore for unrepresented victims of the metal-on-metal hip implant, the time could be short and legal representation is encouraged. As with many defective medical products, the legal restrictions and protections afforded the corporations could potentially leave many hip implant victims with few options or legal recourse.

Author: Sullo & Sullo Attorneys

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