Insurance Dispute Lawyer Blog
New information has come to light suggesting that DePuy may be in the process of conducting destructive testing on hip implants previously inserted into patients that were affected by the company’s defective ASR product line. Soon after DePuy announced its nationwide recall of its ASR XL Acetabular System/Depuy ASR Hip Resurfacing System from the American marketplace in August 2010, the manufacturer began to send letters to hospitals and physicians. These letters requested the hospitals’ assistance in retaining explanted hip implant components, as well as related tissue samples following revision surgery. Notably, the letters contained language indicating DePuy would be sending the extracted hip implants to “third-party retrieval laboratories to receive and analyze explanted components and related tissue samples.” Unfortunately for plaintiffs, such third-party analysis can spoil and/or destroy the hip implant, resulting in lost evidence.
This development is highly problematic for persons who have experienced complications from the defective DePuy hip implant units and who are looking to pursue a legal case against the company. Since a patient’s hip implant unit is the centerpiece of product liability litigation against a manufacturer-defendant such as DePuy, should the unit somehow be destroyed before civil trial by a third party laboratory’s testing, plaintiffs could suffer enormous setbacks to their otherwise valid cases. Without the ability to admit evidence of the defective hip implant into court, plaintiffs are unable to meet their burden of proof necessary to prevail in their civil claims against DePuy.
Because retrieval and possession of an extracted hip implant cannot be performed by DePuy without prior consent by the patient, patients should communicate to their physicians prior to revision surgery that they do not want their DePuy hip implant handed over to DePuy. If a patient believes their physician will be uncooperative in this request, the patient can retain an attorney who will draft a letter to their physician explaining the patient’s instructions not to hand over the explanted hip implant to DePuy. Whether or not a patient uses an attorney to revoke such consent, it should be noted that it is always illegal for doctors to give DePuy a patient’s extracted hip implant if the patient has effectively communicated otherwise.
By preserving the defective hip implant extracted by a doctor during revision surgery, affected patients are preserving their valuable legal claims against DePuy. Such legal claims are important to not only hold DePuy accountable for its manufacture of defective hip implants, but to provide proper recovery to patients who have experienced pain, suffering, and loss of enjoyment of life as a result. Without access to an intact version of a patient’s extracted hip implant, a patient will only be able to settle with Depuy for pennies on the dollar. Consequently, it is vital that patients exercise their right to say “no” to DePuy’s request to test a patient’s hip implant unit.
If you are scheduled for revision surgery to have a recalled DePuy ASR hip implant removed, please contact Berniard Law Firm before proceeding further. The attorneys at Berniard Law Firm will give you the information and confidence you need to ensure your rights and claims against DePuy are adequately preserved and maintained.