Delays in DePuy case in nobody’s interest

Some people have been left wheelchair-bound while actions over faulty prosthetics drag on, writes Ernest J Cantillon

BEFORE we take any action over the faulty DePuy hip implants, we have to get the patient’s medical records to see what happened in the lead-up to the insertion of the hip.

This is necessary to consider whether they needed the replacement at all. If it was necessary, then one has to look at what hip people got. Some people come to us thinking they have got a DePuy hip, when they don’t.

We have to look at what pre-operative tests were done, what type of operation was carried out, whether it was carried out appropriately, and what was the alignment of the hip post-operation.

Under freedom of information legislation, one is entitled to access a public hospital patient’s records.

However, there are appalling delays in obtaining records, particularly from Cork University Hospital. It is taking, on average, six months and longer to obtain records from CUH. To some extent, the intention of the Freedom of Information Act is being thwarted by these types of delays.

Insofar as private hospitals are concerned, one has to invoke the Data Protection Act and again there are considerable delays, particularly with some of the hospitals in the South-East. We have also had problems with tracking down radiology films and a number of films have been lost.

The DePuy organisation is a maze. It is necessary in some instances to sue American companies, French companies, in other instances UK companies, and in other instances Irish companies. This obviously takes a little time to research, and in some instances, it is necessary to make application to the High Court for liberty to sue and serve companies outside of Ireland.

These applications would frequently be made. This involves drawing up papers, lodging them with the court, getting a court date and this also adds to the delay.

Once the proceedings are served, the defendants set about invest- igating the matter. It is a matter for the defendants to explain why they delay until proceedings are served before they investigate the matter, when they know that proceedings are coming down the line.

In many instances it has been necessary to sue:

*The orthopaedic surgeon;

*The hospital;

*HSE;

*DePuy (of which there may be different entities).

All of these entities may have obtained separate legal teams, all of them demand copies of the records and, in some instances, seek to have the patients examined.

Discovery has to be obtained against the hospitals and doctors and also against DePuy. There are considerable delays in getting discovery and defendants have considerable time scales to comply. A lot of our cases are at the discovery stage now.

The whole process is time consuming and wasteful.

The defendant’s should be able to reach 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.” If they cannot agree a contribution they can have an arbitration provision on a global basis.

That is not happening here and the costs are mounting. Some of the costs may come to be paid by the HSE, that is ultimately the taxpayer.

It is clearly in the interest of all parties for this litigation to be determined quickly. Some people have been left wheelchair-bound as a result of this debacle. A lot of these people are elderly.

Some people have been effectively stranded in their homes because they are unable to have further revision surgery, and as I say, are left wheelchair bound. If the victims were compensated quickly, they could (in appropriate cases) hire home help, which would alleviate to some extent their disability.

Someone needs to call a halt to this madness and provide for a speedy resolution of these issues.

*Ernest J Cantillon is managing partner at Ernest J Cantillon solicitors