Metal on Metal hip replacement problems – claiming compensation in the UK

Metal on Metal hip replacement recall – the background

From 1997 several leading medical device companies started to manufacture metal on metal (MoM) hip prostheses. These prostheses were aimed at younger patients who required a hip replacement. They were marketed as the latest advance in hip replacement and it was thought that they would be longer lasting.

Some doctors doubted the safety and effectiveness of these prostheses but the manufacturers continued with their development and a licence for their use was obtained from the Medicines and Health Regulation Authority (MHRA). The level of testing for a “medical device” is far lower than that required for a drug.

MoM implants were very popular with surgeons from 2003 until 2009 with around 60,000 being implanted into patients in the UK. Some doctors started to realise that the complication rate with these hips was higher than the traditional prostheses (with a failure rate of around 12%). Some surgeons stopped using the prostheses from as early as 2007.

The prostheses are manufactured from cobalt-chromium, a material which has been used in medical appliances for many years. The metal is known to release some ions but with the hip prostheses the level of ions released is much higher. The ions seep into the tissues surrounding the prosthesis destroying muscle and bone and causing long term disability in some patients. Of greater concern is the long term effect of exposure to cobalt-chromium. There is concern amongst doctors that patients suffering from metal toxicity (metallosis) from their prosthesis may be at long term risk of cancer or heart damage.

By 2007 the MHRA became concerned and a committee was set up to consider the risks. On the 7th September 2010 the MHRA announced an alert in respect of the ASR Hip manufactured by De Puy. The MHRA recommended that surgeons should stop using that prosthesis from that date.

It was initially thought that the other MoM hips were safe. Those manufactured by Smith and Nephew (the Birmingham Hip) and Stryker were not the subject of this initial alert; neither were some of the other prostheses manufactured by De Puy.

As more information on the side effects became available it became clear that there were problems with the majority of MoM joints and on the 28th February 2012. the MHRA announced an alert against the use of all MoM hip joints.

Hip replacement problems – what type of compensation claim do I have?

You could have a claim:

• Against your original surgeon for clinical negligence if the surgical technique he/she used was substandard or you received a MoM hip after the risks of using the hip were in the domain of orthopaedic surgeons (probably from 2008 onwards) and/or

• Against the manufacturer of the Mom hip under the Consumer Protection Act 1987. This is called a “product liability claim”.

How do I prove that my doctor was negligent?

To decide whether your medical treatment was of an appropriate standard, we obtain a full set of your medical records and send them to an independent doctor of the same specialism as the doctor who treated you (probably an orthopaedic surgeon). The doctor will review your notes and decide whether the treating doctor’s actions were reasonable. If the independent doctor agrees that the treatment you received from your surgeon was not of the standard of a reasonably competent orthopaedic surgeon and that the lack of competent treatment caused your injury then your claim should succeed.

Injuries arising from MoM hip joints are quite specific as the damage caused is the same for each patient. The most common symptoms are tissue and nerve damage often initially presenting as bursitis which requires draining.

How do I bring a Product Liability Claim?

Product liability claims are brought under the Consumer Protection Act 1987. The producer of a product can be liable to pay damages to a person who is injured by their defective product. The same law applies to suppliers as well as manufacturers. There are defences to actions brought under the Consumer Protection Act and it is not yet known whether the claims will be defended in the UK or whether the Companies involved will establish a compensation fund for people injured by their product.

How much compensation will I recover?

Compensation is split into 3 categories:

1. Damages for pain, suffering and loss of amenity (i.e. damages for your physical injury and the fact that you have not been able to enjoy your leisure activities etc.)

2. Damages for your out-of-pocket expenses (also called special damages). These can include lost earnings, cost of travel to hospital and parking, care by your family, prescriptions and over-the counter medicines. Please keep any receipts. Keeping a diary can also be useful as it is often hard to remember these things as your case progresses.

3. Future expenses. If your claim is a large one , you may be able to claim future lost earnings, the cost of adapting your home or car or the future cost of someone looking after you or giving you help in your home.

 Is there a time limit for making a claim if I have had a MoM hip?

The time limit for making a claim for medical negligence is three years from the date of injury or three years from the date that you knew your injury was caused by substandard care. In the case of MoM hip claims the three years usually runs from the date when the patient was told that his/her problems stem from the metal hip joint and the fact that it needs to be removed.

The time limit for making a claim under the Consumer Protection Act is also 3 years from the date of knowledge. There is also a long-stop date of 10 years from the date of supply of the prosthesis to the hospital.

There are different time limits for people who were under the age of 18 when they had the hip replacement or who are registered with the Court of Protection or who have been detained by hospital under the Mental Health Act. Please ask if you think any of these circumstances apply to you

A lot of people seem to have had a problem with MoM hips. Is there going to be a group court action.

Many people are coming forward to seek advice about making a compensation claim because they have been fitted with an MoM hip. At present there is no class action in the UK for patients. In America, there is a group action being brought against De Puy relating to the ASR Hip. This is likely to be heard in the autumn and may govern, to some extent, what De Puy do with pending claims in the UK.

How do I pay my solicitor?

The most common ways of funding a clinical negligence claim are:

• Legal Expenses insurance (you may have this attached to your household or car insurance policies) Please check to see if you have this. We are happy to check your insurance policies for you if you are unsure.

• No win no fee agreements. If your case fits our criteria for MoM hip replacement cases we may be able to offer you a no win no fee agreement.

• Private client; you pay us on a private basis.

NB Though we are authorised by the Legal Services Commission to carry out a limited number of medical claims under a clinical negligence franchise, unfortunately public funding (formerly Legal Aid) is no longer available for any compensation claim for a faulty hip replacement or indeed for most medical negligence claims

Metal on Metal hip claim – what do I do next?

If you would like to instruct us to handle your compensation claim you can either ring us on 01722 424426 or e-mail us using the contact form below to arrange free initial advice over the phone or a free face-to-face appointment. Your appointment will be with Denise Broomfield who is the solicitor handling medical negligence compensation claims relating to MoM hip joints.

  • Call us on FREEPHONE 0800 1404544
  • Or use the contact form below