The HSE and DePuy Orthopaedics – a division of Johnson and Johnson – who recently issued a recall of two of its hip replacement products, may face thousands of lawsuits from affected patients.   

The products which were recalled were the ASR Xl Acetablur System and the ASR Hip Resurfacing System.  The ASR devise is a large diameter, monoblock hip resurfacing and replacement device.

 The DePuy ASR Hip Resurfacing System was introduced in 2003 and is only approved for use outside of the USA.  The ASR Excel Acetabular System was first launched in 2004 and has since been available worldwide.  It is estimated that 93,000 of these devices have been implanted worldwide.                        

Shortly after the ASR Resurfacing System was introduced, DePuy Orthopaedics began receiving a number of complaints of problems and complications associated with early failure for the metal hip implants.  The hip replacement can fail with only a few years of surgery, causing pain and leading to complicated and expensive replacement surgery.  Most of these complications required additional surgery to replace the hip implants.    

The DePuy ASR Acetabular Cup System is a metal- on- metal hip component.  DePuy withdrew the ASR hip in the Australian market in December 2009 and indicated a plan to phase the devise out worldwide in 2010.  It is believed that a design flaw with the DePuy metal hip implants exist which makes them difficult to implant at the proper angle.  If the metal on metal hip replacement is improperly positioned, it can cause small particles of metal to cause inflammatory reactions, impacting the surrounding tissue in the hip joint and loss of bone.  This can cause complications and leave patients with lasting problems and the surgery to remove the hip implant can be more complex. 

Individuals with small statures, such as women and those with weak bones may be more susceptible to failure of the DePuy ASR hip implants.  

The company will face legal claims for liability for manufacturing a defective product, failing to warn these patients and doctors of problems with the implants and negligence in the design, manufacture and sale of the product.   

Approximately 70,000 hip replacements have taken place in Ireland since July 2003, when this product first became available in this Country.  Approximately 5% of these may be affected by this recall, as figures from the company itself indicate that 3,516 implants were sold in Ireland.  However, this figure has not yet been confirmed as accurate. 

In March 2010, DePuy discontinued the cup and sent a letter to Doctors that month warning that data from the Australian Medical Device Registry showed a “higher than expected” failure rate than traditional hip replacement, especially in smaller patients and those with weak bones.  These moves followed two years of reports that the implant was prone to early failure.

The HSE may also have a legal liability to compensate affected patients if it can be proven that they were aware of the defective nature of the implants but continued to use them in their hospitals.  Since 2008 the problems with these implants had become apparent.

While the primary liability may be with the manufacturer in these cases, the HSE may also have a liability problem. If the HSE continued to purchase these devices from DePuy Orthopaedics during the period in which it was clear that these products were defective, then the HSE could be held partially liable and may end up paying millions of euro in compensation to effected patients.          

Patients with hip replacements have reported that they have experienced pain and swelling of the hip, even mouths after the surgery.    If the device becomes loose, it could potentially break some bones in the area around the hip socket.  There have also been numerous patient complaints of crippling pain experienced following the implantation with this defective device.                      

Between 2006 and 2009, reports of problems with the DePuy model ASR hip replacement device rose sharply.  Of the problems reported in 2009, over 90% required replacement.                               

The FDA has received approximately 300 reports of failure since 2008.  The majority of these individuals required expensive and painful operations to remove the device.

• Have you had a hip replacement since 2003?    
• Have you experienced pain and swelling in your hip after the surgery?  
• Have you had problems walking after the surgery?    
• Have you had unexplained hip pain?       
• Have you had swelling in the hip joint?             
• Do you know whether your hip implant was manufactured by DePuy Orthopaedics (a division of Johnson and Johnson)?                  
• Do you require corrective surgery to remove the implant?    

If so, you may be entitled to compensation.

Our firm is reviewing potential injury lawsuits and class action lawsuits for DePuy ASR hip patients.  To have a potential case reviewed by our firm and to request a free consultation and claim evaluation, please immediately contact our firm on 045 898000 or log on to www.moloneysolicitors.ie. 

All cases are pursued on a contingency fee basis, which means that there are no fees or expenses unless recovery is obtained.  

Moloney & Co. Solicitors

Unit 5

Lawlor’s Commercial Centre

Naas

Co. Kildare

A landmark High Court decision dealing with the operation of the Garda Siochana compensation scheme may result in Gardai who sustain minor injuries on duty being refused compensation.   

A recent test case dealing with the Garda Siochana Compensation Act in which three Gardai sought compensation for injuries maliciously inflicted on them, established that the Minister for Justice could refuse to allow compensation claims from Gardai to proceed where the Minister concluded that the injuries were “minor in nature”.

The Gardai claimed that they had sustained anxiety disorders which their Consultant psychiatrists confirmed were recognised psychiatric injuries.  These cases are more commonly referred to as “fear of diseases” cases.                 

Judge Mary Irvine found that in a large number of cases the transmission risk of disease was zero and that consequently Doctors should not be testing Garda when there is a negligible or zero risk of infection – such as a splash of blood onto intact skin or cases involving saliva only. 

She said that in many cases blood testing over a three and six month period was unnecessary and as a result, if Gardai attended the appropriate infectios disease specialisst for advice, any anxiety suffered by Gardai would be confined to a very short period of time. 

In her Judgement, she recommended that the Garda authorities prepare an advisory pamphlet setting out the nature of the viruses, how they are transmitted, when testing should be done, when the imposition of restrictions on a persons sexual and sporting life are warranted and suggested the immediate availability of treatment, such as prophylaxis to all gardai

She recommended that they be made available in every Garda station so that in the event of an assault causing a member to fear infection, they could immediately refer to these pamphlets for reassurance. 

If accurate information and adequate reassurance could be provided to members of the Gardai as to the nature of these infections diseases and the minimal risks of infection, even in cases where blood testing may be justified and even allowing for a members private life being restricted over a 6 months period, that these injuries would be classified as best as minor in nature and insufficient to force the Minister to grant authorisations for leave to apply for compensation before the High Court.  

In awarding damages of €6,000.00, €7,000.00 and €15,000.00 to the three Gardai the Judge also clarified the law in relation to how damages are to be assessed.  The Judge stated that there was nothing in the Act which suggested that the Court should not approach compensation in the same manner as it would approach the issue of damages in an ordinary personal injury claim.

The Judge accepted in all three cases that the Gardai had suffered from anxiety disorders and physical injuries and therefore the awards would therefore appear to be quite low.

An award of €6,000.00 does not even exceed the District Court Jurisdiction and would be open to criticism.  The Judge indicated that all Gardai have a duty to mitigate their loss and that if a Garda is assaulted and had a fear that he may have been affected with HIV and/or hepatitis that they should immediately try and ascertain the disease status of their assailant and that if they failed to do so that this could be taken into account by the Court in the assessment of damages. 

This would appear to be an unfair burden to be placed on Gardai who in many cases have no ability to force their attackers to provide blood tests. 

The State heavily contested this test case and it would appear that future Garda Siochana Compensation claims coming before the High Court will be vigorously contested, both in relation to the issues of liability, causation and damages. 

Gardai will feel aggrieved by this Judgement, which on the one hand confirms that their cases are to be dealt with in the same manner as ordinary personal injuries claims, but on the other hand, they are not being awarded the same levels of compensation. 

They also face the prospect of future claims for compensation being refused at first instance by the Department of Justice.  This may lead to further litigation in that many Gardai may decide to challenge the Ministers decision by way of Judicial Review.

All in all, this Judgment has raised more questions than it has answered.                                              

Section 6(b) of the Garda Siochana Compensation Act 1941 provides:-     

If the injuries are of a minor character sustained in the course of ordinary duties, the Minister must refuse the application.       

Notes for the Editor         

The State has paid more than 30 million in the past 2 years in compensation and legal fees for injuries suffered by Gardai during the course of their duties.  All cases are initially dealt with by the Department of Justice, to whom the injured member applies for compensation.  The minister for Justice, then exercises powers conferred under the Garda Siochana (Compensation) Act 1951 authorises the applicants to apply to the High Court for compensation once he is satisfied that the injuries companied are not minor in nature.

Thousands of people in the UK injured and burned by “toxic sofas” manufactured in China have obtained compensation payouts from the English Courts totalling up to €20 million. A group action was launched in the UK claiming compensation against three retailers of the affected sofas – Argos, Land of Leather and Walmsleys – who admitted liability.

In excess of 100,000  sofas were sold with the chemical DMF (dimethyl fumarate) inside.  Sachets of DMF were put in thousands of Chinese’s manufacturer’s suites to stop them going mouldy in storage or while being transported. DMF is a highly sensitising chemical which has been linked to cancer in humans.

The powder is usually kept in sachets around the furniture.  However, when it gets hot, the DMF evaporates into the air, penetrates the leather and reaching the skin of anyone sitting on the sofa, where it can cause painful blisters and sores and in some cases, breathing difficulties. 

There have been a number of recorded cases in Ireland of this condition now known as Sofa Dermatitis.

Liam Moloney, a personal injuries Solicitor based in Naas commented “many Irish consumers are not even aware of the dangers of DMF or the fact that thousands of sofas have been sold to Irish consumers with this dangerous chemical inside.  The  EU has now banned the use of DMF but many people have suffered skin burns and breathing problems due to the presence of this chemical in leather products. It is vital that steps are taken now by Irish  retailers to withdraw all of these sofas for sale and also to re-call all those previously sold which contained DMF.  It is clear that any consumers that suffer injury as a result of being exposed to DMF would be entitled to compensation”.   

GENERAL INFORMATION

DMF penetrates most plastics and makes them swell.  It frequently occurs as a component of paint strippers.  It is used as a solvent in  peptide coupling for pharmaceuticals,  in the development and production of pesticides and in the manufacture of adhesives, synthetic Leathers, fibres, films and surface coatings.

Over 8,000 suites containing DMF have been sold in the United Kingdom.  There is no information in Ireland in relation to the number of sofa’s or leather products sold containing DMF. 

If you wish to discuss this piece please contact Liam Moloney on 045 898000 or email at liammoloney@moloneysolicitors.ie

END OF PRESS RELEASE

click to link to RTE website for Liam Moloney’s comments here