An elderly woman who sued over her DePuy hip replacement has been awarded €321,000 damages by the High Court in what is regarded as a test case.
More than 1,000 claims were advanced in respect of alleged injury caused by DePuy’s ASR hip but Joan Dineen’s case, heard over 20 days, was only the second case to go to full hearing as most claims have availed of the court approved Alternative Dispute Resolution Scheme.
Ms Dineen (81), from near Blarney, Co Cork, was entitled to expect the replacement hip which she got in 2009 would have afforded her with a good degree of comfort for the remainder of her life, said Mr Justice Kevin Cross.
However, after two further revision operations, Ms Dineen is now in a significantly worse position than she would have been had the hip replacement not occurred.
Defective product
Her injuries are “severe and indeed permanent and this has caused major disruption to her life”, he found.
Ms Dineen had sued DePuy International Ltd for damages over the alleged failure of an ASR replacement hip manufactured by DePuy which was used for her right hip operation in February 2009.
Mr Justice Cross found the DePuy ASR hip product was a defective product and the result of the defects was the ASR failed to an alarming degree.
“These failure rates were unacceptable and significantly higher than what might be anticipated to be a normal or acceptable failure rate. This failure resulted in excessive ion levels and damage to the user’s bones or muscles and necessitated revisions,” he said.
He also found Ms Dineen suffered injury as a result of the defective product and she had noticed pain and clicking and when the first revision was carried out there was evidence of bone damage.
Mr Justice Cross said he did not believe DePuy deliberately set out to manufacture or sell a product that would cause injury. The state of knowledge at the time was that defects and failures occurred in all hip replacements, but the ASR failure rate proved significantly excessive.
Aggravated damages
“Had DePuy robustly tested the ASR product, the defects which subsequently came to light would have been noticed prior to production,” said Mr Justice Cross.
However, the threshold for awarding aggravated damages had not been met and the damages in the case would instead be compensatory, he ruled.
By the time Ms Dineen’s ASR was produced, DePuy was aware of serious problems and alarming failures of the ASR and had sought to remedy the problems with an alternative model which was later suspended for commercial reasons, he noted.
