Following its recall of the defective ASR hip implant, DePuy has put together a plan aiming to reach out directly to patients--before they have the opportunity to understand their legal rights. DePuy is now telling surgeons to ask their patients to sign authorizations allowing DePuy to obtain several pieces of information, including the patients' medical records and any ASR hip implant that is taken out of the patients' body (which is called an "explant").
Before signing the authorization, it is important to speak to an attorney regarding a possible case against DePuy.
One reason is that while DePuy is saying it will reimburse patients for failed DePuy hip implants, its offer of reimbursement falls well short of a patients' full legal rights. Though DePuy has offered to make payments for medical care, its payment is only for the patient's out-of-pocket medical expenses. This means DePuy wants the bills to be paid mostly by private insurance or Medicare--even though its device is responsible for the additional care.
While the law varies from state to state, the common rules are that patients are entitled to recover the entirety of their medical bills (not just the out-of-pocket expenses), their lost wages, and for the pain and discomfort caused by going through an additional revision surgery. DePuy's offer to pay only out-of-pocket medical bills therefore largely overlooks the full rights that patients have when their DePuy ASR hip implant fails.
DePuy's argument for needing the medical records and the explanted hip device is that it needs the records to determine (1) if the patient indeed had a DePuy ASR hip implant, (2) whether the costs submitted may be reimbursed, and (3) whether a revision of a DePuy ASR hip implant is related to the device's failure and not to some other event, such as a fall.
In short, DePuy is looking for as many ways to avoid paying compensation as it can find.
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As to (1) identifying the device, Walkup lawyers' research and consultation with hip implant orthopedic experts reveals that DePuy and its distributors for the ASR hip implant keep lists of the patients who received the device. In addition, a quick look at the correct pages in a patient's medical charts--not the entirety of their medical records--is enough to identify the device. There is no need to have a full set of medical records to determine if a patient has a DePuy ASR hip implant.
The request for the actual implant is also perilous for a person who underwent a revision surgery when a DePuy ASR hip implant failed. In Walkup lawyers' consultation with orthopedic experts, we have found that patients who have sent their explant in to DePuy often cannot get DePuy to return it--even after repeated requests. The result is that a very important piece of evidence in a DePuy ASR hip implant lawsuit has been given to DePuy before the patient's DePuy ASR hip implant attorney could have it evaluated by orthopedic and biomechanics experts.
In terms of (2) determining if particular costs may be reimbursed, DePuy mistakenly asserts that it has the authority to determine which costs may be paid back. When a patient exercises his or her full legal rights by having a DePuy ASR hip implant attorney file a lawsuit, a judge and jury--not the defendant--has the power to decide which costs are attributable to the device's failure.
Finally, DePuy states that it (3) needs the medical records and explanted ASR device to determine if the device's failure resulted from something other than a hip implant defect. This tactic, though, is a common approach defendants take in defective hip implant and medical device litigation. Their strategy is to scour a patient's medical records in hopes of creating a "defense" against a hip implant lawsuit. Ideally, in the eyes of a defendant such as DePuy, it will be able to blame either the doctor or the patient for a failure of the defective ASR hip implant.
Obviously, following the plan proposed by DePuy presents patients with several pitfalls. Consultation with a DePuy hip implant lawyer helps patients avoid impairing or damaging their legal rights. Call us toll-free at (888) 799-3968, or fill out a DePuy contact form online. We handle DePuy ASR hip implant lawsuits in California and nationwide.
