In what is regarded as a test action with possible implications for a number of Irish cases, Ms Justice Mary Faherty ruled that a claim brought by Randa Murphy against the hip-replacement makers required an authorisation from the Personal Assessment Injuries Board (PIAB), now known as injuriesboard.ie, before it could proceed to a court hearing.
Ms Murphy has sued DePuy International Ltd, owned by Johnson & Johnson. DePuy is subject to thousands of cases worldwide, including several hundred here, arising from its 2010 worldwide recall of faulty hip-replacement systems that it sold.
While Ms Murphy has brought parallel proceedings against DePuy where an authorisation has been obtained, it is understood up to five cases where no authorisation was obtained may not be able to continue as they are outside the applicable legal time limits.
Ms Murphy, from Ennis, Co Clare, claims she suffered severe ongoing pain and distress following hip surgery in October 2005 when she received a DePuy ASR resurfacing hip implant system. In May 2010, she underwent further surgery on her hip.
The following August, DePuy issued a worldwide recall in respect of two of its hip-replacement systems, including the one which was inserted in Ms Murphy in 2005. She later instructed solicitors to bring a damages action against DePuy for alleged negligence and severe personal injuries.
In its defence, DePuy’s lawyers argued that, because Ms Murphy failed to obtain an authorisation from PIAB before bringing her damages claim against DePuy, her case could not proceed.
PIAB is the independent body set up to assess claims for compensation for injuries and all personal injuries claims in Ireland, except medical negligence claims, require authorisation from it before they can proceed.
DePuy argued the action cannot be deemed to involve alleged medical negligence because DePuy is manufacturer of the product at the centre of the claim and not the provider of a health service. DePuy had not carried out a medical procedure or treatment on Ms Murphy, it was argued.
Ms Murphy’s lawyers argued her alleged injuries arose in the context of advice and surgical treatment from a surgeon and her claim fell within the provision of a health service and did not require an authorisation.
As a precaution, her lawyers have brought parallel proceedings against DePuy in which certification from the injuries board was obtained.
In a detailed ruling on the preliminary issue concerning whether authorisation was required, Ms Justice Faherty rejected arguments Ms Murphy’s claim arises out of the provision of a healthcare service and found the claim relates to the manufacture and provision and supply of an allegedly defective hip implant system.
Ms Murphy had not alleged in her claim that DePuy was negligent in the provision of any health service to Ms Murphy nor that it carried out any surgical or medical procedure on her in a negligent manner, the judge added
In all the circumstances, Ms Murphy’s action required an authorisation, she ruled. She has adjourned the matter to early next month to allow the parties consider the ruling.