After ASR XL Acetabular and ASR Resurfacing hip systems (ASR hips) were recalled in August 2010, the manufacturers, DePuy Orthopedics and Johnson and Johnson (J & J), launched a very aggressive campaign to defend the hip failure cases that have been filed against them. The ASR hips have been shown to have an exceptionally high rate of revision (i.e., second / follow-up) surgeries within a short period of time from the original hip implant surgery. The metal-on-metal design of the ASR hips has led to metal particles entering into the user’s bloodstream causing metal poisoning. This metal poisoning and the general defective design of the ASR hips have also led to instances of dislocation, hip mal-alignment issues and bone fractures. Combined, these issues were the primary reason for the ASR hip recall.
Realizing that they have a major problem with the defective ASR hips, DePuy and J & J immediately upon the recall instituted a “medical bill reimbursement program.” This program allows DePuy to pay for medical bills associated with the follow-up care and treatment of the defective ASR hip device, including any potential revision surgeries. However, DePuy has required ASR hip users to obtain a claims number and sign a medical authorization release, which violates many of the users’ rights. This release effectively authorizes DePuy to gain access and information about ASR users’ potential case that DePuy would not otherwise have. For instance, the release allows DePuy, through the company that DePuy has hired to handle this program – Broadspire – to speak directly with the ASR user, his or her physicians, along with obtaining the ASR device if there is a need for a revision surgery. If an ASR device is in DePuy’s possession that will negatively affect any potential client’s case.
Recently, through the efforts of the MDL Plaintiffs’ leadership committee (PSC), DePuy has agreed to not require clients to sign these releases and has agreed to pay for ASR users’ medical bills. However, the ASR user should not communicate with DePuy or Broadspire directly. Instead, potential clients should go through their lawyer to handle any medical billing issues because DePuy and/or Broadspire has the ability to record any communications over the phone to use against a potential client. Direct communication between ASR users and DePuy can lead to many ways that DePuy can take advantage of an unrepresented ASR user. Therefore, if ASR hip users are interested in this reimbursement program, it would be in their best interest to get a lawyer to act on their behalf when dealing with DePuy or Broadspire regarding payment of their medical bills.
If you need additional information on the subject, contact Navan Ward, a lawyer in our Mass Torts Section, at 800-898-2034 or by email at Navan.Ward@beasleyallen.com. As you may recall, Navan serves on the PSC for the MDL.