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Things that every patient should consider before they look at compensation for a dodgy hip!

 by Stuart Cain, DePuy Victim, Brisbane, QLD, Australia

As I sit here in Australia after my 5th surgery in 5 years, I was amazed and more than a little surprised to learn recently that despite the on-going court cases against Johnson & Johnson/DePuy, that they had attempted to contact we the patient group and offer a “Compensation Programme” in relation to pain and suffering! On first reading I thought finally, but on closer inspection all was not as it seemed, so I wanted to give all of you a few things to consider, especially if you are considering participating in this “Programme”.

Firstly, I am not a lawyer and I thoroughly recommend that before you do anything that you consult one, however I am an ASR hip patient who has been irreversibly damaged by this implant who also just happens to be a health professional. Whilst much of the legal spotlight is currently on Johnson & Johnson/DePuy, I assure you that with recent developments here in Australia (the TGA has officially announced a recall/Alert around the Birmingham Hip Modular Head – used in hip replacement, due to high revision rates as recorded by the NJRR. Source: TGA Update Tuesday 6 November 2012), that many of you who have other MOM hip implants will hopefully soon be having to consider these very same issues. Being involved in a class action can be daunting, confusing and at times over-whelming, however it doesn’t matter if you are chasing Johnson & Johnson/DePuy, Smith and Nephew or any other manufacturer, you need to consider a great number of things that in some cases the lawyers will either overlook and the companies that you are going to challenge certainly won’t bend over backwards to tell you or advise you on.

You will be asked to consider what you have gone through. This will include the obvious questions of financial loss, whether it be from not being able to work, expenses incurred as part of your medical treatment or other related costs. You will be asked to put a price on your ‘pain and suffering’, I challenge anyone to easily do that! I will also be surprised if many lawyers have the magic formula for working this out either! However you will, in your own way and taking into account exactly what you have been through and suffered have to try to do this, it is very individual and I am not arrogant enough to even try to tell you how to go about it, you have to work this out according to your own experiences, don’t let anyone tell you otherwise. What I will tell you is that you should consider not just what it has cost you physically, emotionally and psychologically, but also remember what it has done to your loved ones as well, they have often ‘lived’ this experience with you in just as damaging a way. It is also very important that you can ‘demonstrate’ what you have gone through, whilst this is very difficult when talking about pain, I recommend the use of a diary or at the very least write down what your life used to be like and what it is like now and then compare! I think if you take the time to do this you will be shocked as I was! A good lawyer will advise you on your rights in considering what has occurred from the point of receiving the suspect hip up until the present day so I won’t focus too much more on that.

What I do want each of you to really take notice of, especially as DePuy suggested that in their ‘compensation programme’ that they were going to merely separate those interested into 2 categories (one who had achieved a ‘good result’ and one whose experiences were ‘more involved’, for want of better words), is that this is where the medical device companies (and sadly some law firms) lose sight of some truths about our situations. REMEMBER: There has been very little research into the true impact of the release of Cobalt and Chrommium Ions within the Human Body, this is vital because even if you appear to be doing well post revision surgery if needed or even without revision surgery as is the case with some, you still don’t know what the Cobalt or Chrommium you have been exposed to is really doing inside you!! I refer everyone back to the recent post where Dr Tony Nargol says in his video about the ‘well’ patients (symptom free) who returned for check-ups, with consequently high Cobalt levels and on surgical examination had suffered bone/tissue loss and evidence of the damage that those of us who’s hips have catastrophically failed also had. I have met and spoken to some amazing people through this experience, and I would hesitate to guess that as many of us have dealt with levels of pain for many years and some also have other chronic health conditions, that you may well be having symptoms but as you are so used to ‘dealing with it’, that you simply don’t notice them. I urge everyone to never lose sight of the fact that we have all been poisoned, no-one can categorically confirm if this will EVER properly clear out of our systems and the net result of that is that even if you feel well today, tomorrow is another thing all together, as is the next day etc. I am not a negative person, but unfortunately after 5 surgeries, and I know there are many more of you out there who have had more, I still see the effects of Cobalt in my life every day. You have to consider this when looking at compensation, I would be very interested to hear from any doctors or researchers who can explain what Cobalt and Chrommium will end up doing as I would appreciate the ‘peace of mind’, however from my experience no-one can provide that information as there has been so little research into it.

There is no second chance once you have accepted a compensation payment/package! I urge you to very carefully consider this! If something goes wrong the day after you have accepted a payout, the company whom you sued is no longer responsible and they won’t have any compassion what so ever! If you have been through your surgery/s and everything seems to be going well, you may be vulnerable to ‘forgetting or over-looking’ this fact. I must admit that I didn’t really understand what it would cost until my wife sat down one day and worked out what it would cost in ‘the worst case scenario’! You have to consider your age. At 43, I have been told that I will have to have at least 2-3 more hip replacements in a normal life expectancy (that is considering that the current one actually lasts!). These surgeries and associated costs can reach up to $100,000 each here in Australia and that figure is rounded out and not including complications. My private health fund has already notified me that I won’t be covered for my hip once a settlement is reached so that starts the calculator ticking (if you were waiting in our public system for such surgery depending on what state you are in, you may wait up to 18 months). This is also not taking into account any other surgeries or medical treatment that arises as a result of your MOM hip, MRI’s cost $500 a piece usually, Pathology tests for Cobalt levels in Qld cost $135 per test (I have to have one every 4 months because even without my MOM hip I still get high readings), a night in ICU can cost you $2500-$3000, a regular hospital bed can cost $1500-$1800, average specialist consultation is $150-$200 per visit, medications which could cost $1000’s per year and the calculator is really starting to tick over!

If you end up with decreased mobility or in a wheelchair, a good electric wheelchair can cost up to $10,000, what modifications would you have to make to your home or car, would you need a lift in your house which could cost between $50,000 and $100,000 depending on the property, would you need a new home or car? I have recently been refused travel insurance if I wanted to travel overseas because of “my unpredictable health condition”. I know many of the people I have spoken to would have great difficulty travelling in an ‘economy’ seat if they flew any distance, the cost of ‘business class’ travel is in most cases 3-4 times more expensive. The expenses don’t stop there, try getting any form of insurance, I was advised that I ‘should have lied when I applied’ (I told them I had Arthritis in my hip) when I was recently refused cover by my income protection insurer because I haven’t been able to work as a result of hip surgeries that aren’t even my fault! I nearly forgot, what future earnings will you miss out on? If you are unable to return to your previous employment/profession after your surgery/s, you are eligible to claim compensation for this. I challenge you to sit down and work out if you had to stop work tomorrow, how much would you earn if you worked to 65, just work it out on your current income, I think you will be surprised what that adds up to. Remember, unfortunately this could happen and should be a part of your consideration.

Lifestyle loss in the future is very hard to quantify, but give this a try. Did you have any hobbies, sports or pastimes that you can no longer safely or physically participate in because of your health experiences? Did you want to travel with your partner, maybe you enjoyed hiking or simply as my wife and I used to enjoy, going somewhere new and exploring it on foot! Maybe you liked the surf or the beach and this is no longer possible? Riding horses, motor bikes, jetskis, or any other outdoor activities like sports of any sort, I have even spoken to elderly patients who no longer can participate in their local lawn bowls club. All of this has a price that has to be considered because it has been taken from you!

Finally as part of this I want you to consider the ‘hidden damage’ of what has happened to you emotionally and psychologically and how this will affect your future. I don’t think I have met one single person who can honestly say that this whole experience hasn’t negatively affected them, their loved ones and their relationships with others. This is a cost I can’t put a figure too, you will have to come up with that yourself depending on your experience and what this has done to your potential future life.

Finally, each individual must try to take into account their own circumstances, don’t let anyone try to ‘categorise’ you! We are all different, at varying stages of life and have experienced many things that at the end of the day weren’t of our doing. Many of us will continue to experience the effects of these implants for the rest of our lives, tragically some have already suffered the ultimate ‘complications’ that have dramatically shortened or even taken their lives! Please take this into consideration and don’t be afraid to ask questions, as I have always said if you aren’t satisfied with the answers seek them somewhere else! Just like seeking a second opinion from a doctor if you don’t believe you are getting appropriate answers and care where you are. One thing I have really learned through this experience is that there are a number of people who feel that they may have something to lose by being honest, don’t let anyone treat you as if this is ‘your problem’ and stand up for your rights!

I hope that this sparks some debate and I welcome any and all opinions or questions, as I said I am no expert, but I do believe that we have to stand up for ourselves in this and I will always be willing to take a stand for anyone who feels that they have already suffered enough through this! My best wishes to all the patients out there, my hip brothers and sisters and their loved ones!

Stuart Cain