Missing files and delays slow hip claims, says lawyer

Legal actions against the makers of faulty hip implants are being stalled by missing files and lengthy delays in accessing records.

Solicitor Ernest Cantillon, who is representing 50 patients fitted with the faulty DePuy hips, said there were “appalling delays in obtaining records”, particularly from Cork University Hospital, where the average release time was six months.

Similar delays applied to some hospitals in the South-East, Mr Cantillon said, including the Whitfield Clinic in Waterford, where more than 1,000 patients were fitted with DePuy products.

“To some extent, the intention of the Freedom of Information Act is being thwarted by virtue of the fact that these types of delays are being encountered,” said Mr Cantillon.

He said the medical records were the essential starting point for any legal action, but there had been difficulties tracking down X-rays. “A number of [radiology] films have, in fact, been lost,” said Mr Cantillon. “This may be sinister or it may not.”

Other factors slowing DePuy cases include:

*Difficulties in getting orthopaedic surgeons in Ireland to testify. Mr Cantillon said experience had taught him that consultants did not testify against one another in medical negligence;

*The organisational maze that is DePuy, which can make it necessary to sue US, French, and UK companies and, in other instances, Irish companies;

*Cases can involve several defendants, such as the hospital, the HSE, DePuy, and the surgeon. Discovery has to be obtained against each defendant. Mr Cantillon said there are “considerable delays” in getting discovery.

He said it would make sense for defendants to come up with a sharing agreement.

“Frequently, in multi-party litigation, you would have one party saying ‘we will defend this case on behalf of all parties. If we lose we will pay the monies and then we will look to our co-defendants [privately] for a contribution’.”

He said this was not happening and costs were mounting, some of which may fall on the taxpayer. In addition, there were people left in wheelchairs, he said.

The HSE South said that, in relation to medical files, the current demand, together with reduced human resources, could impact on the length of time it takes to process a chart for release.

More than 3,500 Irish patients received DePuy implants, of whom about 500 have had to have them replaced.