Another Artificial Hip Failure
The attorneys at KBA have seen this before, hip replacement failures. Artificial hips are a kind of medical device. They sometimes fail. Patients who had to have surgery to remove the defective hips bring medical device litigations to recover compensation. We have resolved several hip cases over the years, and to paraphrase a former president, there they go again.
Last summer Exactech, Inc. based in Gainesville FL “issued “URGENT MEDICAL DEVICE CORRECTION” letters . . . addressed to . . . Exactech Agents, Representatives, and Distributors in possession of affected products.” This recall affected over 89,000 artificial hip products called “Connexion GXL.”
Specifically, this recall covers Prosthesis, hip, semi-constrained, metal/polymer, porous uncemented products. This recall concerns the Exactech Connexion GXL acetabular polyethylene liners used in the following systems:
- Catalog numbers 130-28-XX, Acumatch GXL 0 Degree Liner, 28mm;
- Novation GXL Liner, Neutral, 28mm; and
- Novation GXL Neutral Liner, G0, 28mm ID. Orthopedic hip implant component.
Recall of 89,000 Exactech Artificial Hips
In total there are 22 events listed on FDA’s website as shown in the screen-shot tables below.
The attorneys at KBA have been involved with recalled artificial hips and hip surgery lawsuits. Indeed, KBA attorney Whitney Butcher was on the leadership slate of attorneys litigating the Birmingham Hip Replacement litigation within the BHR MDL. KBA has also been involved in cases involving DePuy, Zimmer, and Stryker.
Exactech Issued Letters to Surgeons and Patients
KBA’s lawyers have recovered compensation for the clients successfully in cases involving heavy duty construction equipment, table saws, consumer products like Roundup and 3M earplugs, medical devices, and pharmaceuticals. We actively work on several complex cases including 3M, (the military earplug cases); medical devices like hernia mesh and defective elbows; and pharmaceutical cases such as Tenofovir (Truvada), Valsartan, and Zantac. KBA is now looking at the Exactech medical device failures for possible medical device litigation.
Exactech Appears to be Trying to Control Patients’ Recovery through a Claims Process
On the one hand, it is admirable the company has acknowledged the issue and taken some accountability. That is far better than some of the medical device litigations KBA has handled. That said, the claims process Exactech is offering will likely limit the scope of injured parties’ recovery and in our opinion, the company is trying to control the process to limit exposure.
On its website, the company notes, that “If you have an Exactech GXL polyethylene liner included in this recall, and your surgeon contacts you about follow-up, please contact the Exactech-Broadspire Helpline to initiate a claim with Exactech.” (emphasis added). We cannot express strongly enough how significant this is.
First, doing so may start the running of the statute of limitations. Every state has a law that requires an injured party to bring a lawsuit within a certain amount of time. Here in Maryland, it is generally three years. When the clock starts, however, can be tricky. Applied here, the clock may begin earlier than when one contacts the company for example, but make no mistake, the company will likely argue it definitely starts when you contact it. In some states, the limit is as short as one year, so starting the claims process can have significant consequences. And again, just to be clear, the clock is likely already running, so you should contact an attorney right away.
Our second concern with this process arises from this language, “Exactech is committed to addressing recall-related out-of-pocket expenses, and has partnered with Broadspire, a Third Party Administrator, to manage the claims reimbursement process.” (emphasis added.) That may sound great initially, but let’s break this down.
Your legal rights go beyond “out-of-pocket expenses”
In a personal injury suit, including a claim against a medical device company for a defective product, a plaintiff may recover the following categories of damages:
- The value of past medical services;
- The value of future medical services;
- Past and future economic losses; and
- Past and future pain and suffering
People certainly care about “out-of-pocket expenses” that they have lost, but many care about a lot more. They care about the pain and suffering they endured. Having to go through another surgery exemplifies one part of the journey people go through when medical devices fail.
Furthermore, it is likely that someone else likely paid for the medical expenses, insurance or the government through Medicare or Medicaid. Given our current system, it is likely that while some people will have significant economic losses, the value of their claim against the companies in these situations are the pain and suffering. Notably, Exactech is silent as to the physical and emotional suffering it has caused and will cause for years into the future.
Consult an Attorney before Starting Any Claims Process and Do Not Delay
So before you “contact the Exactech-Broadspire Helpline at (888) 912-0403 to initiate the claims process” as the website suggests, understand what you’re getting into and what you may be risking and giving up. Of course, we’re biased here. It’s not simply because as attorneys we’re cut out of the process. We have plenty of work to keep us busy. And, this process may make sense for some people. Indeed, we routinely turn down motor vehicle collisions, medical malpractice cases, nursing home cases, and other kinds of cases because the cost-benefit simply does not make sense for potential clients. Claims brought by attorneys can take a long time and be exhausting, physiologically. Quite honestly, these cases have been harder and harder every year and paying less and less it seems.
Nonetheless, starting a claims process with the company that injured you without speaking with an attorney is fraught with issue. When the consultation is free, why wouldn’t you double check? Again, pursuing attorney representation is not for everyone. Litigation is a long process, but if your “out of pocket expenses” aren’t really why you are upset and there is more to your story than that, this may not be a real solution. Do not extinguish your legal rights without consulting an attorney.
So if you had an Exactech Hip feel free to contact KBA today to discuss.