If Not the Lawyers, Then Who?

In 2005, healthcare giant Johnson & Johnson’s DePuy Orthopaedics subsidiary debuted the DePuy ASR hip replacement device. By 2008, the company began receiving complaints from patients whose implants were failing. By 2010, the company issued a warning to doctors and patients about the high failure rate, although it was nearly six months before a voluntary recall was initiated.

In all, some 35,000 U.S. residents were fitted with the DePuy ASR device, in addition to more than 55,000 others worldwide. Now, the company is facing the first fraud and negligence trial over a DePuy ASR implant in a Los Angeles courtroom, and the attorneys representing the plaintiff have uncovered evidence that officials from Johnson & Johnson were aware of the device’s problems as early as 2008. According to published reports, Johnson & Johnson’s internal documents show that the company received clinical data in 2008 describing the “extreme” levels of metal ions in patients who were implanted with the DePuy ASR device. Plaintiffs allege the device’s metal-on-metal design is to blame for metal poisoning in patients and painful extraction procedures necessitated by the device’s failures.

It is quite fashionable in political circles these days to blame “trial lawyers” for everything from burdensome regulations to a bad economy to rising health care costs. But ask yourself this: What if you or a loved one made the decision to go through a very painful surgery to correct a hip problem without full disclosure of a high failure rate? Patients facing major surgery inevitably want to know the risks. All the risks. And you would, too. 

It’s too early to tell what ultimate outcome of these allegations might be. But the only way to evaluate whether these patients were victims of corporate negligence is to go forward with what the profession’s critics hate most of all: a chance for plaintiffs to prove their claims in front of a judge and jury.   

Posted: 2/25/2013 12:00:00 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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