Sunday, August 26, 2012

The DePuy ASR Hip SOL Has Passed, but You May Still Have a Chance to File

For the thousands of victims of the DePuy metal-on-metal hip implant, their window of opportunity to recover compensation for the injuries they sustained as a result of the defective medical device may have come and gone. There are limited circumstances, however, in which a skilled and experienced attorney could secure an extension to the stated statute of limitations by arguing either that the victim was unaware of the recall issued in August of 2010 or that the ill effects of the implant might not have manifested prior to the end date of the statute of limitations.

Both of these are valid legal arguments, particularly in light of the fact that for one reason or another many implant recipients may have missed notice of the recall. Implant recipients could have moved therefore not received the so-called Broadspire letter, may not routinely keep up with the news or may not have been in touch with the surgeon who performed their implant surgery or the physician who recommended the surgery. Elderly patients in particular could have completely missed notification of the recall since they are less likely to be web surfers or to watch extended periods of television.

Many implant recipients have had no overt adverse effects from the metal implant as of the end date of the statute of limitations in their state yet will suffer such effects in the near future. There are over 97,000 worldwide recipients of the ASR implant with nearly 40,000 of those in the United States alone. While DePuy originally set the failure rate of the ASR at approximately 5%, at the time of the recall in August of 2010 that number had been increased to 12%. Independent experts outside of DePuy and Johnson & Johnson believe those numbers to be as high as a 50% failure rate at five years post-surgery and a whopping 80% at eight years post-implant surgery. These numbers almost guarantee that over fifty percent of all ASR implant recipients will experience serious negative consequences as a direct result of the metal hip implant. When you consider that of the nearly 40,000 United States recipients of the DePuy ASR implant only 8,000 have currently filed a lawsuit, you can see that there are thousands of potential victims who may have already passed their state’s statute of limitations.

Those adverse health effects could come in the form of an implant which fails, requiring expensive and painful revision surgery or from the effects of metal toxicity. While every person’s body is different regarding its ability to withstand the effects of heavy metals in the bloodstream, cobalt and chromium have been known to cause neurological damage, altered DNA, cardiovascular issues, kidney failure and thyroid problems. Others who have undergone implantation of metal-on-metal devices have developed memory loss, gastrointestinal disorders, hearing problems, dizziness and balance issues, and the inability to distinguish between sweet and salty tastes. There is a very real possibility, however, that implant recipients may not have experienced any of these negative side effects by the time the statute of limitations runs, meaning they could be barred forever from pursuing legal action even though they were unaware of the ill-effects of the metal hip implant.

The primary problem surrounding the DePuy ASR metal-on-metal hip implants center around the ball and cup which are constructed from the metals cobalt and chromium. When these two components rub against one another during periods of activity, microscopic metal ions can shear away from the metal parts, entering the surrounding tissues or the bloodstream. If these tiny metal shards lodge into the tissue around the hip implant serious infection and destruction of that tissue can result.

Over half of all the states currently adhere to the two year statute of limitations in matters of defective medical devices while other states extend that period to three, four, six and even ten years. It is very important that any recipient of a DePuy ASR metal-on-metal hip implant determine their state’s statute of limitations and speak with a knowledgeable attorney in order to find out if they may still have some recourse even if that statute has passed. In short, even if your two-year statute of limitations has passed, you may still be eligible to file a lawsuit against DePuy for the injuries you have suffered as a result of their defective medical device. You may have options you are unaware of which can help you receive the revision surgery or medical treatment you desperately need so speak to an experienced attorney before you give up all hope regarding your future.

Author: Sullo & Sullo Attorneys

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