Tuesday, August 7, 2012

7 Things Every DePuy ASR Hip Replacement Patient Should Know About Broadspire

Reprinted from Kirshaw, Cutter and Ratinoff ESQ

I have added comments in the text see brackets []

Question: What is Broadspire?

Answer: Broadspire is a “third party claims administrator” that was hired by DePuy to help it deal with the approximately 90,000 individuals who received recalled DePuy ASR prosthetic hips. Their role is similar to a claims adjuster for an insurance company. Specifically, Broadspire was retained by DePuy to obtain information from people who have recalled ASR hips to confirm that they do, in fact, have an ASR hip. Its adjusters then attempt to determine what type of compensation should be paid to individuals for their various out of pocket expenses.

[As a patient, i have sent some medical bills directly to Broadspire and then have been paid promptly even if the insurance company would have reimbursed them.]

What is important to know about Broadspire is that Broadspire works for DePuy. As a result, anything you tell a Broadspire adjuster can and, may, be used against you if you are involved in subsequent litigation. Therefore, it is very important to be aware of this whenever you are communicating with any Broadspire employee.

[Broadspire is a claims agent.  They are focused on paying claims.  I have never had an an experience with them doing anything other than that.  There is no conspiracy for the claims agent to not pay something or to "get" the patient un an unprofessional manner.]

Question: What type of expenses will Broadspire cover?

Answer: Based on our clients’ experiences, Broadspire has agreed to reimburse individual ASR recipients for all “out of pocket” expenses incurred as a result of the ASR recall. This would include any co-pays for doctor visits, the cost of chromium and cobalt tests, x-rays and MRIs, travel expenses to and from doctors, lodging for doctor or hospital visits, reasonable rehabilitation therapy, or any other out of pocket expense that is not covered by insurance and is reasonably related to the ASR recall. Broadspire will also provide compensation for lost earnings that may be incurred as a result of having to visit the doctor or undergo a revision surgery.

[ok well, I have had Broadspire pay for things that are reimbursable by insurance company.  THE INSURANCE COMPANY NOT BROADSPIRE INSISTED THAT I STOP THAT PRACTICE]

However, what is important to know is what Broadspire will not cover. Broadspire is only covering out of pocket expenses that are actually incurred. Broadspire does not provide compensation for any pain and suffering associated with revision surgeries or problems with your hip. It will not pay any medical expenses that are covered by your insurance company. And, importantly, it will not pay for any medical expenses or lost earnings you are likely to incur in the future.

Understanding what Broadspire does not cover is critical since the pain and suffering associated with a revision surgery is substantial. Also, it is expected that for many people most of the injuries caused by the ASR will occur in the future. For example, many ASR recipients have not yet had a revision surgery and may not need one for several years. Broadspire provides no compensation today for injuries that are likely to occur in the future.

Additionally, Broadspire is not providing reimbursement for any expenses paid by insurance companies. This is critical since most health insurance companies will have a right to be reimbursed for your treatment from any amounts you may receive to resolve your ASR injuries. For example, if your insurance company paid $50,000 for your revision surgery and you receive $50,000 to settle your ASR case from Broadspire, your health insurance company would have the ability to collect from you the entire $50,000 you received from Broadspire. Therefore, it is very important to understand this if you have any inclination of attempting to settle your case directly with Broadspire.

[Gee, my insurance company (Blue Cross ) has a plan to submit all of the expenses associated with the hip en mass and Depuy is expected to pay them.  I have had numerous calls with the executives in the insurance company and with Broadspire so I have no idea what these comments imply.]

Q: If I obtain money from Broadspire, will it impact my right to sue DePuy for my recalled hip?

A: It depends. Presently Broadspire has not been requiring ASR recipients to release any of their claims against DePuy in exchange for receiving reimbursement for out of pocket expenses. However, there is no guarantee this practice will continue. Therefore, we recommend to all of our clients that before signing any document submitted by Broadspire, it be reviewed by an attorney.

[I have seen no documents from Broadspire requesting any release of liability ever.]

Q: If Broadspire is agreeing to take care of my out of pockets expenses, do I still need to file a lawsuit?

A: Yes. Presently, Broadspire is only agreeing to pay a small portion of your actual damages. It is not paying anything for pain and suffering, it is not reimbursing your health insurance carrier, and it is not paying anything for medical care you may need in the future. Broadspire and DePuy have absolutely no legal obligation to pay you anything and without a pending lawsuit, your right to recover these damages are not protected.

[No you do not need to file a lawsuit unless pain and suffering is an issue.  There is no guarantee that any suit is going to result in significant compensation at this point.  too early to tell.  The state and federal bell weather trials might shed some light on these whenever they occur.]

Q: If I need to have revision surgery in the future can I count on Broadspire to pay the expenses associated with that surgery?

A: No! All states have statutes of limitations that require people who suspect they have been injured by a product to bring a lawsuit within a certain period of time. In many states this time period is 2 years. DePuy and Broadspire have no obligation to pay anything to you if the statute of limitations has expired on your case.

It is also critical to understand that the idea of determining when someone is “injured” is subject to many interpretations. We expect that DePuy and Broadspire will take the position that you should have suspected you were being injured by your ASR hip on the date you learned that it was potentially shedding metal particles into your body. For most people, this date will be in August or September 2010, the time period when most doctors were sending notices to their patients about the ASR recall. Therefore, in order to protect yourself and ensure that you will receive compensation for surgeries and injuries that may occur in the future, it is critical that you file a lawsuit soon. For most people, the last day to file a claim will be in August or September 2012. In any event, it is critical to discuss this issue with an attorney immediately in order to make sure you are fully protected.

[ I can not envision Broadspire not reimbursing patients for real issues with their hip  caused by the hip material.  The two year limitation is for filing suits for things over and above the medical expenses for all practical purposes.  I have been told by Broadspire that they will pay the bills as soon as the insurance company submits them and have seen that to be the case.  I can't imagine them refusing to pay for a bonified claim.]

Q: If I take money from Broadspire, how will it impact my pending lawsuit?

A: As long as you do not agree to release any of your claims against DePuy, accepting money from Broadspire should have a minimal impact on your case. What we expect is that DePuy will most likely require that any future settlement with it be reduced by any amounts paid to you by Broadspire.

Q: Should I even be communicating with Broadspire?

A: It depends. If you have retained an attorney who is monitoring your interactions with Broadspire and is making sure that your rights are being protected, it may be all right to deal with Broadspire to receive compensation for out of pocket expenses.

[It is not rocket science to collect your expenses from broadspire.  There is no conspiracy to not honor their obligations they have in order  reimburse for the actual revision surgery.  It is very straight forward.  They have assumed the role proactively of reimbursement for the claims.]


  1. [ I can not envision Broadspire not reimbursing patients for real issues with their hip caused by the hip material. The two year limitation is for filing suits for things over and above the medical expenses for all practical purposes. I have been told by Broadspire that they will pay the bills as soon as the insurance company submits them and have seen that to be the case. I can't imagine them refusing to pay for a bonified claim.] ...I think the point is that if you don't have medical expenses now, but you end up having medical expenses because the hip goes bad three years down the road, DePuy and Broadspire will have no more obligation to pay for that surgery and you will be on your own.

    Why would you discourage anyone to sue DePuy over a hip that they knew was bad (as proven by internal emails published last year) but sold to the public anyway???

    1. Thanks for your note:

      (1) I am neither encouraging nor discouraging patients to sue or not sue.

      There are certainly arguments on both sides. I have personally not pursued this because in my case, the top physcians in the country who can serve as consults don't want to be invovled with this suit. Its very time consuming. So this is my reason for doing nothing at the moment.
      If I have to choose between a top notch physcian and a law suit, I choose the former.

      (2) Having your hip go bad 3 years down the road: how does the suit help that? I understand the top of the potential settlement range might on a really good day amount to $300K if you have a revision. Out of that you subtract any other medical expenses that have not been reimbursed to the insurace company, then subtract the lawyer fee, there is nothing left. Presumably, the settlement's quid pro quo is the patient signs off on any future liability to Depuy.

      So, let me know what I am missing here. I just don't quite see the monetary incentive to sue at this point. I would like to get your feedback on this. I have talked to many lawyers and perhaps I have misunderstood?

      Thanks for taking issue with my conclusion. If i have information that is not correct, lets correct my misunderstanding.