There are two key areas of compensation under the Depuy ASR Hip Settlement Agreement: The Part A Base Award, which we talked about in the last post, and the Part B Award, which awards additional compensation under Depuy’s “Extraordinary Injury Fund” (“EIF”). Let’s get to those “extraordinary injuries.”
If both of your hips, right and left, were implanted with the Depuy ASR hip, and both hips failed, requiring revision surgeries to both hips, you can recover additional compensation. Essentially, you would be entitled to recovery of two Part A base awards. If one side required revision but not the other, you would get Part A compensation on the revised hip only. Of course, if the unrevised hip subsequently failed, you would still have the right to seek compensation later on.
Covered Re-Revision Surgery—Past. This means you had to undergo two revision surgeries on the same hip. The re-revision cannot be caused by infection or “excluded trauma.” A qualifying re-revision surgery would yield $150,000.00 in Part B funding. All subsequent re-revision surgeries (yes this means a third or fourth surgery on the same hip!) would entitle you to $75,000.00.
Pulmonary Embolism (PE) or Deep Vein Thrombosis (DVT). If you qualify, you would receive $30,000.00 for PE and $15,000.00 for DVT. You can only receive two awards for PE and DVT, assuming you otherwise meet the qualifications.
Dislocations. This is when the prosthetic femoral head separates from the socket (the acetabular cup). The compensation ranges from $15,000.00 for a closed reduction and $50,000.00 for an open reduction. There is a limit of three dislocations per hip.
Foot Drop. This is a condition of the foot where the front part of the foot drops as a result of damage to the “peroneal nerve.” The foot can drag or go limp as the person attempts to walk. The condition must continue for 90 days after the ASR revision surgery. As with all these conditions, you must prove foot drop through the medical records and an “objective” physical examination. The compensation is $20,000.00.
Infection. Although the diagnosis must qualify based on certain factors (and there are limitations), if you suffered an infection after your revision surgery, you can recover benefits of $10,000.00 to $30,000.00, depending on severity and treatment needed.
Miscellaneous Major Complication. This is an area of compensation for a problem that resulted from a revision surgery that was not specifically listed in the Part B “matrix.” This means that you suffered an unique injury that is identified in the medical records but is not one of the listed complications in the settlement agreement. The benefits would not exceed $50,000.00.
Delayed Recovery. This is a compensation category where the injury took a long time to resolve. For example, if you suffered from “foot drop” a full year after the revision surgery, you would be entitled to recover additional funds based on the severity of the injury and your age at the date of revision. Compensation for delayed recovery could also happen for an extended injury from infection, or a “miscellaneous major complication.” The compensation provided in Part B ranges from $34,000.00 to $288,000.00, depending on the severity of the injury and the age of the injured person.
Myocardial Infarction. This is that big name for a heart attack. If you suffered a heart attack during the revision or re-revision surgery, you would be entitled to recover compensation under Part B ranging from $85,000.00 to $360,000.00, depending on the severity of the heart attack and your age. There are reductions to these amounts if you were a smoker or were overweight through the period.
Stroke. Compensation is awarded based on the level of the stroke and your age at the time of the stroke, from $85,000.00 to $516,000.00.
Death. If a patient died during revision or re-revision surgery, his spouse and family members would be awarded compensation. For example, the surviving spouse would receive $206,000.00, and each surviving minor child would receive $100,000.00 ($25,000.00 for all surviving adult children). There is also provision for payment of lost income resulting from the death of the patient.
Discretionary. This is a broad category of compensation for other extraordinary injuries not identified in the previous sections. Examples of this compensation area include loss of earnings, acetabular cup liner replacement, young age (50 or younger) at the time of revision surgery, and a medical condition requiring a delay of the revision surgery.
This category is intended to compensate a person who suffers a future injury that has not yet occurred. This means that even you could qualify for compensation up to two years after your revision surgery, even if, at the moment, you do not show signs of an injury. For example, if you sign on to the settlement, and at the time you qualify only for a Part A “base” award, you would receive that Part A award only. But six months later you suffer one of the categories of injury listed above (need for re-revision surgery, PE or DVT, dislocation, foot drop, infection, delayed recovery, heart attack, stroke, death, or miscellaneous injury), you would be entitled to compensation for this future extraordinary injury. Of course, there are certain reductions based on the passage of time. I just wanted to make sure you understood that you could be compensated for a future injury six months or eighteen months (up to two years) after you sign on to the settlement.
OK, so let’s look at a quick hypothetical from the Part B compensation world:
Let’s say you are 55, and you had revision surgery three years after the implant surgery, then a year later had to have a second revision surgery, and through that period you suffered from a “severe” case of foot drop for more than a year, you should receive a base award of $250,000.00, followed by a Part B award of $337,000.00, for a total of $587,000.00. If you lost your job or income through that period (which you could prove of course), there should be even more compensation available to you under Part B of the Depuy ASR Settlement Agreement.
Note: I had to distill many pages from the settlement agreement in this article. The Part B EIF Award “matrix” is much 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.