Hip replacement procedures have become one of the most common types of surgery; over 70,000 hip replacement and resurfacing operations are performed every year.
This fact sheet focuses on bringing a product liability claim if you have been injured as a result of receiving a metal-on-metal (MoM) hip system.
WHAT IS A MOM HIP?
Traditionally, hip replacement components were manufactured using a combination of metal and plastic (polyethylene). In the 1990s, MoM bearings began to become common place as they were thought to be associated with lower wear and dislocation rates.
Recent evidence, however, suggests that MoM hip replacement and resurfacing systems have higher failure rates when compared to traditional forms of hip replacement systems.
WHAT IS THE CONCERN?
The concern about failure of MoM hips is the release of metal ions into a patient’s soft tissue. This may cause the patient to experience conditions known as an adverse reaction to metal debris (ARMD), pseudo- tumours and metallosis. Symptoms experienced by patients as a result of these reactions include:
- Groin pain
- Numbness or loss of sensation
- Early revision
If you have suffered from symptoms caused by a MoM hip, you may be entitled to pursue the manufacturer for compensation in a product liability claim.
CHOOSING YOUR SOLICITOR
You will need to pursue a product liability claim using a solicitor who specialises in this field. It is important to choose a solicitor who:
- Is experienced in product liability work and pursuing MoM hip claims
- Understands how product liability claims work and the broad range of issues that can arise in MoM hip claims
- Has access to recognised experts with specialist interest in MoM hips.
WHAT IS A MOM HIP CLAIM?
A MoM hip claim may arise if you have received a MoM hip system and become symptomatic. You may have been advised of, or already had, early revision of your MoM hip.
There are some MoM hips, made by varying manufacturers, which are considered to be defective and have been the subject of recent litigation, including:
- DePuy Pinnacle Hip Replacement System
- DePuy ASR XL Acetabular Hip Replacement System
- Biomet M2a-38 Total Hip Replacement System
- Biomet M2a Magnum Total Hip Replacement System
- Corin Cormet Hip System (total hip or resurfacing)
- Birmingham Hip Modular Head Total Hip device
If you have received any of the above hips, and you have become symptomatic, you may be entitled to claim compensation.
THE LAW RELATING TO PRODUCT LIABILITY CLAIMS
Pursuant to the Consumer Protection Act 1987 you can bring a claim against a manufacturer if their product causes you damage and that product is defective. Strict liability will be imposed on the manufacturer if the court decides that the safety of the product was “not such as persons generally were entitled to expect”.
There are three questions to be addressed: (a) what is a defect (b) what standard of safety were you entitled to expect and (c) did the product fail to meet that standard?
For your claim to be successful, you will need to establish that:
- You were injured or suffered losses.
- The product was defective in manufacture or design.
- It was the defect that caused the product to fail and cause the injury.
- You were using the product as it was intended.
The defendant (often the manufacturer or supplier of the product) will, therefore, be liable for damages where it can be established that the product was defective and that the defect caused the injury. You won’t need to establish fault or negligence.
The defendant will, however, be able to successfully defend the claim if they can demonstrate that at the time the product was supplied, the defect was not discoverable by using all accessible knowledge. This is known as the “development risk/state of the art defence”.
Knowledge about MoM hips has gradually developed, but new developments occur regularly. For this reason, proving a claim is not straightforward.
WHAT SORT OF COMPENSATION CAN I CLAIM?
Many MoM hip claims are being pursued as part of group actions against manufacturers. They are likely to be drawn out affairs before a decision is made on whether the manufacturer is liable.
In the event of a successful claim, compensation can be claimed for your injuries, to include:
- General damages to reflect the pain, suffering and loss of enjoyment of life as a result of the MoM hip.
- Special damages can be claimed for out-of-pocket expenses in the past and future, such as additional care costs, travel expenses, private medical treatment and therapy, and aids and equipment.
HOW LONG HAVE I GOT TO MAKE A CLAIM?
Court proceedings for MoM hip claims must be issued within three years of the date of injury. If the injury happened more than three years ago, you may still be able to bring a claim if you learn that the injury was caused by the MoM hip within the last three years.
The Consumer Protection Act also provides that any claims pursued under the Act must be brought within 10 years from the date that the specific product was put into market circulation.