In previous articles we looked at the Depuy ASR Settlement Agreement compensation framework. We examined the Part A base award here, and looked at the Part B “Extraordinary Injury Fund” (“EIF”) here. Just to recap, if you received a Depuy ASR hip in a hip replacement surgery, and it later “failed,” causing you to need revision surgery, you likely qualified for participation in the Depuy ASR settlement program.
The Part A award was one monetary award based on having to undergo hip revision surgery. The default Part A amount was $250,000.00, and this figure could be reduced by certain factors, such as smoking, obesity, advanced age, and length of time between original surgery and revision.
The Part B awards were built around “extraordinary injury,” and included compensation to people suffering from less common bad results, such as heart attack, stroke, foot drop, pulmonary embolism, deep vein thrombosis, dislocation, or infection.
In this post I want to drill down a bit on one of the vague areas of potential compensation in the Part B “matrix.” The Depuy Settlement Agreement designates an area for compensation for miscellaneous injury, which is referred to as Matrix Level VII (Discretionary). Let’s look at a few examples:
You should be able to receive additional compensation if you can establish (with solid evidence) your loss of earnings during your injury from the Depuy ASR hip. According to the settlement document, this benefit will be limited to $150,000.00 in total additional recovery. To be eligible, you will need proof of your partial or total disability, along with evidence of your income for the two years prior to the original (“Index”) surgery. Some of the documentation requested for this claim would include a letter from your employer, medical records from the treating surgeon, year-end tax documentation (all tax returns that would show diminished earnings), and any other evidence which supports your position that you missed work, lost a job, or otherwise lost income because of the failed hip surgeries.
The Settlement Agreement lists a separate possible area of compensation for those individuals who were fifty years old or younger at the time of the Revision Surgery. Example: if you were forty-four (44) years old when you first had the original hip replacement surgery, and that surgery failed, causing you to undergo revision surgery at age forty-eight (48), you would certainly want to bring a claim for additional compensation under this Matrix Level VII, “Young Age.”
Removal of Cup Liner Only, or Other Components
Another example of a possible miscellaneous injury would be if you were forced to undergo removal of the cup liner inside the acetabular cup. In this case, you would be entitled to $80,000.00 in compensation for the first cup liner removal, and $40,000.00 for subsequent cup liner removals. Also, if you had a hip component removed other than the cup or liner, you could receive additional compensation.
Medical Reason Causing Revision Surgery Delay
In the Part A award, your base award ($250,000.00) is reduced if more than five years passed between the original Index Surgery and the revision surgery. However, under Matrix Level VII you may avoid this reduction if you can show there was some other medical reason for the delay in undergoing the revision surgery. Example: your Depuy ASR hip surgery failed after 4½ years. You diligently schedule your revision surgery four months later, well within the five year period permitted for full payment of the Part A base award. However, you are diagnosed with mononucleosis two weeks before the revision surgery and it takes you two months to fully recover, and by the time you can reschedule your revision surgery, you have passed the five year anniversary of your original surgery (which under the Part A scheme would result in a $25,000.00 reduction in your Part A base award). Under this example of Matrix Level VII miscellaneous compensation, you can seek a waiver of this reduction and will likely receive your full Part A base award (but of course you must have documentation establishing your mononucleosis, or other illness, which delayed the revision surgery).
The Matrix Level VII under Part B of the Settlement Agreement clearly states that the list of miscellaneous injuries (noted above) are merely examples and “in no way exhaustive.” This means that you could certainly have some other miscellaneous injuries that were not listed under Matrix Level VII which the settlement committee would review and for which the committee could decide to award additional compensation. So think clearly about all your injuries and your recovery from each of your hip surgeries, and discuss this complete history with your attorney.
In a later post we will look at Part B “Future Matrix” compensation under Part B.
Note: The information in this post is publically available. I had to distill several pages from the settlement agreement in this article. The Part B Award “matrix” is more complex than I have set out. It requires someone who can present your claims carefully and convincingly, with straightforward evidence from your medical and employment records. Also, understand that there are time limits to qualifying for the settlement. Talk to your attorney or call me. And good luck.