Órla (pictured) who is partner with Cantillons Solicitors in Cork, believes that some of her clients have been left out of pocket by being channelled into an alternative dispute resolution process.
Denied day in court
Unless they had a trial date previously set, they have been steered, without choice, into a dispute resolution process. They are denied their day in court and, more importantly, they don’t get to tell their story, Órla says.
She has worked on a large number of cases dealing with the after-effects of faulty hip replacements, which, in many cases, have ruined the quality of life of those who received them.
Her clients may need money, urgently, to adapt their houses due to disability, or buy a suitable mobility-impairment vehicle – and so they settle.
They may be advancing in years and want finality in this long legal battle.
As a solicitor, she deals with the aftermath of negligence and has a clear view of the detrimental effects of defective DePuy ASR hip devices.
“The settlements are often under-valued and a little bit less than if clients went to court,” Órla says.
She believes that her clients have gone through a process of ‘attrition’ and have become weary of the battle and, therefore, are more willing to settle – even at a financial loss.
“Generally, the cohort of plaintiffs who have hip replacements are elderly,” she explains.
Rotting tissue
“They will have decayed and rotting tissue around the surgery site, and will have already endured a more difficult second (sometimes third) hip replacement because of the leaking metal debris.
"They may have two defective hips, on the left and right side.
"Thus they have had a more complex second surgery, and most people are likely to face a third or fourth surgery because each hip lasts for less and less time.
Badly done
“A hip that is badly done will last less time,” Órla explains.
“Medication is very well regulated in Ireland but, in contrast, medical devices remain largely unregulated,” the Cork-based solicitor says.
There is a huge detrimental impact in living with pain, with some people unable to work or pursue hobbies. Some can’t walk on a beach or push a buggy, all everyday things. Some people literally can’t walk up a stairs or use a bath.
Many of the firm’s clients feel hard done by, she says, because the dispute resolution process means their story is not heard.
Faulty
The faulty DePuy hip (DePuy ASR Hip Resurfacing System and the DePuy ASR XL Total Hip Replacement System) was recalled in Ireland in 2010 – over 1,000 people sued as a result.
But as Órla points out, the hip should never have been brought to market as it was untested on the elderly, and untested for the full range of movement and untestd in its final form.
“The hip was recalled in Australia in 2009 and they were still being inserted into patients here until August 2010. It’s truly a scandal.
“DePuy were too slow to recall the product,” she says.
Directive
Many victims have settled their cases following a judicial directive that specified the use of alternative dispute resolution (ADR), because trial waiting times were too long.
Those who didn’t have a legal action already in train were left with no route available, except for ADR.
The ADR process is entirely paper-based and confidential, and plaintiffs supply medical records to one of ten evaluators who are retired judges or barristers. A suggested sum is then offered.
Cofidentiality
Órla accepts that the confidentiality of the ADR process may be an attractive option to elderly clients, who don’t want their names appearing in the local paper.
Both sides must agree on the sum, or the case goes to court, and either side can reject the suggested damages sum.