Johnson & Johnson subsidiary DePuy Orthopaedics is taking a controversial approach to managing the recall of its ASR hip replacement system. DePuy is paying a third party to review patients’ medical records and determine whether injuries sustained are sufficient enough for the company to cover the cost for replacement surgery.
DePuy announced a recall of its metal-on-metal hip implant last year following higher than expected failure rates and injuries caused by the devices. The recall has prompted more than 2,000 lawsuits. The medical device company is offering to cover the cost for revision surgeries in patients whose devices have failed and need replacing.
Typically, when a company recalls a device, the company’s attorneys handle the recall by answering patient queries and paying claims for reimbursement. These lawyers generally rely on recommendations from treating physicians when determining whether a device should be removed or replaced.
In DePuy’s case, the company has turned the matter over to Broadspire Services, Inc., a company that handles workers compensation and medical claims for insurance companies and employers. It is Broadspire physicians – not the patients’ doctors – who will determine whether a DePuy artificial hip patient requires revision surgery and whether those costs will be covered by DePuy.
Legal experts are expressing concern that paying a third-party to handle the management of the recall enables DePuy to get their hands on patients’ medical records and other information that can be used against patients in court. They are calling the move a serious conflict of interest.
Late last summer when the recall was first announced, DePuy wrote to orthopaedic surgeons asking them to send their patients a package of information about the recall. It contained a form “doctor-to-patient” letter written by DePuy, asking the patient to make an appointment to discuss any concerns and to bring with them a signed medical release giving the doctor permission to share their medical records with DePuy. For their efforts, DePuy offered to pay doctors $50 for each completed sets of forms. Legal experts are calling this move an outrage.
“I have been doing this work for 35 years and it is almost unprecedented for a large corporate defendant to run out and preemptively attempt to identify claimants,” said Alex MacDonald, a partner at MacDonald Rothweiler Eisenberg, who is not representing clients in the DePuy case. “J&J is reaching out to doctors and asking them to use their influence with their patients in the hope that the doctor will help identify potential claimants in a lawsuit.”