Thursday, July 26, 2012

If You Have a Recalled DePuy ASR Hip Implant But No Pain

With over 43,000 recipients of the DePuy ASR metal-on-metal hip implant in the United States, the fact that there are only approximately 6,000 plaintiffs in the MDL lawsuit against the company at present would cause one to wonder if the device has really caused as many problems as claimed. By way of some background information, the ASR hip implant was approved by the FDA in 2005 via the controversial 510(k) process. This type of approval bypasses traditional clinical testing by claiming the product was substantially equivalent to other similar devices which were already being marketed. Most Americans believe that FDA approval means the product is safe, therefore felt no qualms about receiving one of the metal-on-metal implant devices.

Unfortunately, within five years of approval, the ASR system failed at such catastrophic rates that by August 26, 2010, DePuy issued a voluntary recall of the hip implant. At present there is a large group of over 4000 plaintiffs in the federal MDL lawsuit before Judge Katz, another 600 or so in a mini-state consolidation in Chicago, and a third and fourth consolidation in California and New Jersey. This leaves some 37,000 recipients of the ASR metal-on-metal hip implant who have not yet come forward to take part in the lawsuits. This likely means that many of those who have received the ASR implant have yet to have any pain however what they do have is a recalled hip implant in their body and a strong likelihood of medical consequences down the road.

The major problem here centers around the Statute of Limitations which, in most states, is two years from the date of the recall. As you can see, that date is fast approaching with barely a few weeks remaining. Those patients who neglect to file their case by this time will be shocked to find several years down the road when they begin to have problems that they are barred from bringing a lawsuit against DePuy. In other words, assuming the patient is feeling fine now, but experiences a total hip failure eighteen months from now, the Statute of Limitations has run and no cause of action can be brought.

Andrew Sullo, Class Action Lead Counsel & Managing Partner at Sullo & Sullo Attorneys at Law notes that many of his firm’s clients actually call and say “I don’t even know why I’m calling; my hip is fine and I have an ASR and I love it and would never take it out of my body.” Sullo says while this is well and good, this is a person who is putting themselves at risk. Two years or three years or five years down the road should they need a hip revision and have failed to maintain and protect their legal rights they could find themselves in a serious financial and medical situation. Some of those people may have no medical insurance while others could have insurance that would not fully cover all out-of-pocket expenses—after all the average cost of revision surgery is over $100,000.
Additionally, there is generally a six-week recovery period requiring most patients to take off work and in some cases lose their livelihood altogether. Some of these people might potentially never be able to work again and will likely lose the use and enjoyment of their hip. There will be pain and suffering from the revision surgery and the rehabilitation, and many of these patients will end up with a limp—or worse. There is the potential for a myriad of complications during revision surgery.

Taken as a whole, you can see why you should not give up your rights to a future lawsuit simply because you haven’t yet had problems with your ASR. After all, when you consider that the DePuy metal-on-metal ASR hip implant has been found to fail in the U.K. nearly fifty percent of the time—four times what DePuy stated when they recalled the device—then statistics would dictate that your own ASR stands a fairly high chance of failure.
Sullo noted that “The revisions are usually occurring within the first several years for ASR’s but I have noticed that for some clients the hip will be fine for several years and then out of the blue start hurting.” These patients may suffer from metal poisoning which results when the cobalt and chromium acetabular cup and head rub against one another during normal activities, shearing off tiny metal particles which can lodge into the surrounding tissues or enter the bloodstream.

These metal ions can cause severe inflammation and pain and can damage the surrounding tissue and bone. While the long-term effects of elevated levels of cobalt and chromium are not entirely clear, many patients have reported neurological, cardiovascular, thyroid and kidney problems as well as hearing issues, memory loss, balance problems and skin disorders. As many as 400,000 Americans receive hip replacements each year, and in 2008 metal implants accounted for nearly 40% of those, declining in 2010 to about 27%, and at present down to less than ten percent following the recall.

It’s extremely important that recipients of the ASR not miss the narrow window of opportunity in which to preserve their future rights. The Statute of Limitations will leave many innocent victims of the ASR completely defenseless against future health problems from the metal-on-metal implant. Don’t wait—contact the highly experienced attorneys of Sullo & Sullo, LLP and receive some peace of mind about your future.

Author: Sullo & Sullo Attorneys

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