INSIGHTS On Massachusetts Personal Injury Law

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DePuy and Broadspire’s Handling of ASR Artificial Hip Recall Claims Raising Concerns

When DePuy issued the United States recall of the ASR artificial hip systems, it announced that it would pay for the necessary, medical replacement treatment for patients suffering complications as a result of the ASR hip.  But the manner in which DePuy is handling patient reimbursement is gaining criticism on several fronts. It is not uncommon when a medical device is recalled for the company to voluntarily pay out of pocket patient expenses associated with the recall. Usually the company will handle both the recall and the resulting expense claims directly.  When subsequent medical treatment is required, the recalling company typically accepts a treating physician’s recommendation about the need to remove or replace the device, and the cost associated with the necessary treatment.

Rather than follow this established procedure, DePuy has hired a third party — Broadspire Services Inc, — to administer patient claims for out of pocket expenses associated with the ASR hip recall. Broadspire advertises itself as providing “risk management services” for “employers and insurance companies.” Before being retained by DePuy, it typically managed workers compensation and other medical claims on behalf of insurance companies and employers.

Over the course of the last 15 months, complaints have been mounting regarding the tactics utilized by Broadspire to process ASR hip recall reimbursement claims. Perhaps the most troubling complaint is Broadspire’s use of its own physicians, rather than a patient’s treating doctor, to make decisions about the timing, approved hospital, and need for revision surgery to replace the defective ASR hip. It is alleged that Broadspire is denying claims, based on the opinions and conclusions of its hired physicians that revision surgery is either not necessary or relates to a surgical error or known complication (as opposed to the defects in the ASR hip). When a claim for revision surgery is accepted, Broadspire has been criticized for refusing to pay the surgeon’s full fee, or refusing to cover the expense of the patient’s chosen hospital. This can be especially problematic because the internal tissue and bone damage from the ASR hip often makes revision surgery extremely complicated. Patients who seek out top-rated orthopedic specialists to perform the subsequent surgery are finding that DePuy and Broadspire will not pay the full surgical and hospital fees. While Broadspire physicians cannot mandate a patient’s treatment or choice of surgeon, by deciding not to pay the full cost of the medical treatment, they are effectively dictating medical care for patients who cannot pay on their own.

A second criticism of Broadspire is that the amount of information being collected about patients is excessive. In August 2010, DePuy wrote to orthopedic surgeons asking them to forward patients a package of information about the recall of the artificial hip. The packet contained a medical release giving the physician permission to share all medical information with DePuy. It said in part, “It is important to share this information with DePuy so that DePuy may contact you directly regarding any additional information regarding the ASR Hip System and process your claims efficiently.” DePuy then offered doctors $50 for each completed set of forms. Additional medical releases are required by Broadspire in order for it to consider a reimbursement claim. DePuy also initially tried to get all explanted ASR artificial hips returned to it by surgeons “for further testing”. (One of the first rulings from the judge overseeing the DePuy federal litigation was to order DePuy immediately stop requesting the return of ASR hips removed from patients.)

The suspicion is that DePuy and Broadspire are attempting to use the cost reimbursement process to gain valuable information about potential claimants and to collect medical documentation for use in defending causation and damages claims associated with the ASR hip recall. As a result, many plaintiff attorneys are advising clients not to submit claims to Broadspire unless financially necessary. The DePuy Litigation Team at SUGARMAN is committed to assisting all of our clients with the Broadspire claim process.

If you have any questions regarding a DePuy hip or a resulting Broadspire reimbursement claim, please call Stephen Sugarman or Benjamin Zimmermann at 617-542-1000 or email ssugarman@sugarman.com or bzimmermann@sugarman.com.