The new scheme, open only to claimants who underwent revision surgery, will be largely a paper exercise and could see settlements reached in a matter of months.
Under the process, a panel of 10 evaluators, comprising retired High Court or Supreme Court Judges, or senior counsel with experience in personal injuries, will evaluate claims and issue written, non-binding evaluations which may or may not be accepted by DePuy and the claimant. If a settlement is not reached, the claimant can still go to court.
Claimants can avail of the process by instructing their solicitors to complete a standard short form with essential details of the claim and submitting it to solicitors for DePuy, McCann Fitzgerald.
Once DePuy is of the opinion that the claim meets eligibility criteria, it will be sent to the evaluator. The hope is that in most cases evaluation should be completed within six weeks.
Cork-based legal firm, Ernest J Cantillon Solicitors, which represents a large number of claimants, said while the new process was to be “welcomed in general as it will allow large numbers of people to attempt to find a resolution to their claim sooner” it was nonetheless “disappointing” that a large number would be excluded by virtue of not having undergone revision surgery.
“A number of people have not undergone revision surgery for legitimate reasons, for example some are unable to undergo surgery due to other health conditions or their age. These cases will now be required to obtain a court hearing date and to continue their case through the usual process,” a spokesperson for Cantillon’s said.
Claimants must have undergone revision surgery in Ireland within 10 years of, but not earlier than 180 days after, the index operation.
Parties to the DePuy dispute were asked before Christmas by High Court Judge Kevin Cross to come up with a new resolution process because of the large volume of cases.
The judge said there are more than 1,000, with 100-plus settled so far. He said even listing two cases a week it could be 2022 by the time all the cases were dealt with. He said the system was not capable of dealing with the problem.
He ruled that the 72 cases pending for hearing in the High Court could keep their place in the system, but that the court would not list any more DePuy cases for trial.
In Ireland, a total of 3,311 patients were identified as having been fitted with the faulty implants across 16 public hospitals and 14 private hospital sites.
The new dispute resolution arrangement is available to those fitted with either a DePuy ASR hip resurfacing product or ASR XL total hip replacement product that were the subject of a voluntary recall by DePuy in August 2010. The recall followed a higher than expected failure rate — typically implants can last up to 15 years but the products in question were showing a failure rate of 12%-13% within five years.
DePuy will not agree to a claimant entering the new process if, in its opinion, the claim is statute barred, or if the claimant supplies insufficient medical records and other essential details to McCann Fitzgerald.