Article from the October 2012 issue of Noseweek Magazine.
Patients who’ve had hip-replacement problems with metal-on-metal DePuy implants are being urged to join a mass legal action against makers Johnson & Johnson. But J&J has already offered to replace any faulty implants free of charge. Is their litigation for fair compensation justified or are the lawyers stirring a honeypot?
South African patients who received faulty hip-replacement implants are hoping to collect at least R2.5 million apiece from US medical products conglomerate Johnson & Johnson.
Two controversial metal-on-metal hip implants, known as the ASR XL Acetabular and the DePuy Hip Resurfacing System, were recalled and taken off the market in September 2010 because of a recorded 12% failure rate within five years. They were made by DePuy, a Johnson & Johnson subsidiary. Worldwide, 93,000 patients received the implants – 3,300 of them in South Africa.
The class action by local claimants is being prepared by Pretoria law firm CP van Zyl. DePuy’s distribution centre is in Leeds, UK, so the case is expected to be fought in the British courts although jurisdiction has yet to be resolved and no summons is likely to be issued before next year.
Eleven months ago attorney Stoffel van Zyl’s firm had only seven claimants. Press releases by his PR consultancy boosted the number to 62 by September and the latest, on September 4, picked up by Die Burger and Beeld, bumped the total to 69.
Back in the 1940s, hip replacements were all metal-on-metal: a metal head fitting a metal socket. But friction resulted in a high wear-rate with replacement “revision” necessary after 10-or-so years.
In the 1970s an implant pioneered by Sir John Charnley, comprising a stainless-steel stem with a 22mm head fitting a polymer socket, produced a smoothly moving joint and became the gold standard of joint replacement, with a failure rate of just 4%.
By the mid 90s, however, research revealed that many patients who had had hips replaced with metal-on-metal in the 40s were still doing well, so the traditional method swung back into favour. Now, the DePuy scare — put down to a design flaw, with replacements necessary after just five-or-so years – has almost wiped out metal-on-metal implants worldwide, though one well-regarded survivor, called the BHR (Birmingham Hip Resurfacing) is still marketed by Smith & Nephew.
Between July 2003 and August 2010 3,300 South Africans received their DePuy implants. The claimants among them believe they have a high chance of being awarded what they consider to be fair compensation.
DePuy has accepted responsibility for the failures of its product – against an 88% success rate – and has offered to pay for revision (replacement) surgery where it is required.
Not good enough, says Stoffel van Zyl. Certainly a R150-million award – preferably in an out-of-court settlement – would suit Van Zyl. His firm works on a “no win no fee” basis. And in the event of a R150m payout, he would collect up to 25%: R37.5 million.
Van Zyl is quick to reassure clients who have concerns about the cost of bringing a massive civil action in Britain. Even if they lose, there will be no question of their facing the usual costs bill because his UK solicitors have taken out ATE insurance. After The Event insurance – little known in South Africa – indemnifies clients from all costs in a legal action should it be unsuccessful.
With nothing to lose, and up to R2.5m payouts apiece in the event of success, are South Africa’s hobbling hip brigade simply lining up in the hope of cracking open the champagne?
How does Van Zyl justify such a substantial claim?
“The initial metal-on-metal hip replacement procedure costs between R300.000 and R500,000,” he says.
“General damages for pain and suffering will be R400,000 or R500,000. Another R400,000-R500,000 for revision (hip replacement). Then there’s loss of income and future medical expenses. It goes to more than R2m.”
Are SA’s hobbling hip brigade simply lining up in the hope of cracking open champagne?
But at least one orthopaedic surgeon specialising in hip replacements considers these amounts excessive. Dr Jan de Vos of the Wilgers Medical Consortium in Pretoria and treasurer of the South African Orthopaedic Association, official group of the Medical Association of South Africa, says the total cost of a metal-on-metal prosthesis in a private hospital is no more than R120,000 (and that includes the R50,000 cost of the prosthesis).
A revision, depending on the severity of the failure, would come to around R180,000. That’s a total of R300,000 – a fraction of Van Zyl’s R700,000-R1m for the two procedures.
De Vos points out that, while metal-on-metal hip-implant suppliers such as Biomet, Finsbury and Corin have quietly withdrawn from the metal-on-metal market, Johnson & Johnson has faced up to the problem: “They’ve brought out guidelines and protocols and have said they will foot the bill for revision replacement.”
Although the surgeon believes that patients with “a real metal-on-metal problem” should be reimbursed and helped along the way by Johnson & Johnson, he considers that those looking for R2.5m in compensation are “chancers, who think they’re going to make a quick buck out of this”.
Says forensic scientist Dr David Klatzow, who himself recently had a hip replacement but is not, he trusts, a candidate for revision surgery: “I don’t know about having nothing to lose… And to suggest they’re simply lining up for the champagne is to trivialise a very serious issue.
“Having a hip replacement is hardly an undertaking without serious risk, and certainly not one you want to undergo a second time, when the risks are even greater.
“You risk sepsis, even untreatable sepsis these days, permanent damage to the muscular structure of the hip, and pseudotumor formation. And then you’ll be out of work for at least two months. The exact cost can be debated, but it’s no fun party,” says Klatzow.
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