To the Law firms working on the Depuy hip issues;
The only real value to me in retaining a lawyer and filing a law suit is to ensure that future expenses get covered if you have issues that have not been surfaced today. Frankly, I am not even sure if a suit will meet those goals.
It is a common misconception that the patients are going to walk away with a bunch of money in these suits. Even if , at some point Dupuy offers reimbursement for pain and suffering above the base expense reimbrusement, I don't think the patients are going to walk away with any money. (see the series of 7 posts addressing pain and suffering here: http://www.mydepuyhiprecall.com/2012/12/depuy-allows-pain-and-suffering-claims_19.html )
(1) Even if you get a so called "settlement offer from Depuy" and your insurance company has submitted the expenses to Depuy and not been paid for them, they have a right to submit a claim and collect them from your proceeds as Kershaw, Cutter has noted below.
Assume that the average payout for the case is $200K which, if I recall correctly, was the amount in the Las Vegas award (seems like this set a precedent.) All of the expenses the insurance company incurred on your behalf for these surgeries, PT, doctors visits, will need to be paid from that settlement....On top of that, if there is any money remaining, the proceeds need to to split with the lawyers if they have taken your case.
(2) What if Depuy allows for Pain and suffering claims in the US over and above expense as they have done in Australia? Well, again, back to precedence. If they stay the course and do what they did in Australia in settling the pain and suffering claims there, the only hope of getting money for that requires that you sign a complete release that you will never come back to them for any future claims. Who in their right mind would sign something like that? No Orthopedic surgeon would sign off on a statement saying that their patients will be fine in the future given the lack of work done on the systemic issues by the orthopedic research community.
So, money should not be a motivating factor for filing this suit because if the past settlements are any predictor of what they are going to do in the US settlements, there is no money in these suits for a patient.
So, that begs the question, why file the suit?
Honestly, the only reason from a patient perspective I can see in filing is if there is a hope that by filing, future medical claims can be covered. I am not even sure about that.
There is a second reason which is what I might call "other damages." I still think Depuy should provide a fund for medical studies on these issues. I am not aware of any law firm even considering this issue. If no studies result from this suit, we have accomplished absolutely nothing. The risks remain as they were prior to the suit.
There are a lot of attorneys who read this blog so why don't one of you comment on this? If my reasoning is flawed and incorrect, let us know where it is flawed and what exactly you see as the merits in this suit for the patients?
Written by Kershaw, Cutter & Ratinoff.
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. 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.
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. 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.
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.
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.
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.