The Parties to an
Artificial Hip Recall Case

Introduction

There are multiple parties involved in an artificial hip recall case. Each party has its own agenda and objectives. Given the adversarial nature of some of these cases, inevitably some of the parties have conflicting objectives; and necessarily, some have objectives that are contrary to those of the plaintiff (the injured party).

Purpose of this page

This page:

  • Identifies and describes the main parties involved in an artificial hip recall case
  • Shows the relationships between the parties - who faces off to whom
  • Summarises the various agendas and objectives of each party

Diagram

The diagram below illustrates the main parties typically involved following an artificial hip recall, and the basic relationships between them.

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Click on the Diagram (above) to view a larger version; then Click on the 'Close' button or the dark area around the expanded image to return to the original page. Check out the Key to the diagram for definitions / explanations of the symbols & colours used (n.b. the Key opens in a new browser window).

Parties Involved

The notes below describe each party and summarise their respective objectives.

Each individual, role or company is prefixed with a tag: P1, P2, P3… Person 1; Person 2; Person 3 etc. Think of the Manufacturer or the Insurers as legal 'persons'.

This tagging is for ease of reference - I refer to these tags on other pages. Hopefully the tags will facilitate easier cross-referencing between pages and aid understanding.


P1 The Plaintiff (Injured Party)

Description

Objectives

In an artificial hip recall case the plaintiff is the individual that has suffered personal injury allegedly as a consequence of having been fitted with a recalled hip implant.

  • To recover his health and achieve the best possible outcome in terms of the future performance of his hip joint, either with or without revision surgery.
  • To avoid or minimize the financial disadvantage or losses which might arise as a consequence of the personal injury sustained.
  • To return to his normal life as rapidly as possible including family & work life - Effectively to minimize the impact of both the personal injury and any potential legal action on his quality of life and that of his family.

P2 Lawyer / Attorney for the Plaintiff (the prosecution lawyer)

Description

Objectives

The lawyer representing the injured party in an artificial hip recall legal action should have the appropriate skills, qualifications, experience & resources to advise and effectively represent his client throughout the lifecycle of the legal action.

  • To rapidly and efficiently assess his client's artificial hip recall case to decide whether the case is viable and worth taking forward, both from the client's perspective but also commercially from the perspective of his legal practice.
  • To act in his client's best interest at all times and protect & uphold his client's rights as far as possible within the law.
  • To only accept cases where there is a realistic probability of a successful outcome that will be to the overall benefit of both the client and his firm.
  • To advise, guide, support & represent his client throughout what can be a lengthy and stressful legal process.

Related links:

Do I need to appoint a lawyer? KW: LINK

What is the difference between a lawyer and an attorney?



P3 The Manufacturer

Description

Objectives

The manufacturer of a recalled hip implant will most likely be one of a relatively small number of major global healthcare companies.

These companies invest hundreds of millions of dollars designing, developing & producing hip implants alongside thousands of other medical products.

Every manufacturer has a strong vested interest in producing and selling safe medical products, and this is achieved in the vast majority of cases. If a manufacturer has to initiate an artificial hip recall or a recall of any of its products, the impact on the company's reputation and share price can be very damaging.

  • To do the right thing by patients who have been injured by one of their products.
  • To settle legitimate claims as rapidly, discreetly and cost effectively as possible.
  • To minimize the reputational damage to the brand and the share price of the company as a consequence of the artificial hip recall.
  • To understand explicitly what went wrong with the product; integrate that learning into the product design and development process in order to minimize the risk that similar problems could occur in the future.

P4 The Manufacturer's lawyer

Description

Objectives

The manufacturer will be represented by high calibre and highly experienced legal advisers. The lead partner with responsibility for defending the manufacturer will most likely be a specialist medical device lawyer.

note: In addition to external legal counsel, the manufacturer will have a substantial internal (employed) legal team and financial resources at its disposal to defend the case.

  • To successfully defend his client against all legal actions arising from the artificial hip recall.
  • To earn very substantial fees from defending the client (manufacturer) and be retained to advise and support the manufacturer on an ongoing basis.
  • To enhance his own professional reputation and his firm's reputation for professional excellence, and through this success secure additional clients and assignments in the future.

Related links:

Just how good will the defence lawyers be? Link to KW: LINK

P5 The Manufacturer's Insurer

Description

Objectives

In most cases, the manufacturer will have purchased insurance from a third party insurance company to mitigate the cost of claims related to product liability.

These insurance products can be complex and typically the premiums are large reflecting the potentially very high financial value of personal injury claims that can arise from artificial hip recalls, or indeed the recall from the market of any medical product.

  • To avoid paying a claim unless it can be demonstrated that a claim on the policy is wholly valid and reasonable, based on the terms and conditions of the insurance contract, and the specific details of the recalled product and injury claims submitted.
  • To apportion a share of any potential liability to any other third party individual or company (or their respective insurers) who may have been negligent. For example, this could be the orthopedic surgeon; or a company involved in the marketing and / or distribution of the product.
  • To manage the future insurance risks and adjust premiums paid by medical product manufacturers in the light of actual claims experience.

P6 The Claims Handling Company (acting for the Manufacturer)

Description

Objectives

Third party companies are sometimes contracted to work on behalf of manufacturers to manage and settle claims by injured parties.

  • To provide an efficient claims management service on behalf of the manufacturer of the recalled hip implant.
  • To identify and bring as many artificial hip recall claimants as possible into the scope of the claims management service and thereby minimize the number of potential legal actions and thereby reduce the total costs of compensation ultimately born by the manufacturer.
  • Manage down the bad press / storm of adverse PR that might otherwise develop as a consequence of the recall.



P7 The Product Distributor

Description

Objectives

The hip implant manufacturers sometimes contract with third party companies to carry out marketing and distribution of their products. This might be the case if for example the product is designed, developed and manufactured in Europe, but marketed and sold under license (by a distributor) in the U.S..

Depending on the nature of the alleged negligence, it may be the distribution company that is found to be at fault. For example, marketing material may have been created which was either misleading or deficient in that it fails to warn adequately of the inherent risk of the metal on metal hip implant.

  • To minimize the reputational damage to the brand name and the share price of the company as a consequence of the artificial hip recall
  • To apportion a share of any potential liability to any other third party individual or company (or their respective insurers) who may have been negligent. For example, this could be the orthopedic surgeon, or the original manufacturer of the product.

P8 The Product Distributor's Lawyer

Description

Objectives

The profile of a lawyer engaged to defend a product distributor will be broadly similar that noted above for the manufacturer's lawyer.

As above for the manufacturers lawyer.

P9 The Product Distributor's Insurer

Description

Objectives

In most cases, the distributor will have purchased insurance from a third party insurance company to mitigate the cost of claims related to product liability.

These insurance products can be complex and typically the premiums are large reflecting the potentially very high financial value of personal injury claims that can arise from an artificial hip recall case.

  • To avoid paying a claim unless it can be demonstrated that a claim on the policy is wholly valid and reasonable, based on the terms and conditions of the insurance contract, and the specific details of the recalled product and any injury claims submitted.
  • To apportion a share of any potential liability to any other third party individual or company (or their respective insurers) who may have been negligent. For example, this could be the orthopedic surgeon, or the original manufacturer of the product.
  • To manage the future insurance risks and adjust premiums paid by medical product distributors in the light of actual claims experience.



P10 The Orthopaedic Surgeon

Description

Objectives

The orthopaedic surgeon who carried out the initial (primary) hip replacement surgery, using a hip implant that was subsequently recalled from the market.

  • To demonstrate that he was not negligent when providing medical care to the injured party.
  • To protect his professional reputation and to enable him to continue practicing as an orthopedic surgeon

Related links:

Click here for more information on the typical profile, skills and experience of hip replacement of surgeons KW: LINK

P11 The Orthopaedic Surgeon's Lawyer

Description

Objectives

If an orthopaedic surgeon is the defendant in a hip replacement lawsuit, it is likely that the alleged negligence will fall into the category of medical malpractice. Based on this, there may or may not be an artificial hip recall component to the wider case.

The lawyer defending the surgeon will therefore most likely be a specialist in defending clients in medical malpractice claims.

It may be a condition of the surgeon's professional indemnity insurance that the insurance company is able to select and appoint the lawyer to defend the case.

  • To refute and disprove the alleged negligence of the orthopedic surgeon (his client)
  • To enhance his professional reputation by successfully defending the case

P12 The Orthopaedic Surgeon's Insurer

Description

Objectives

The orthopaedic surgeon should have professional indemnity insurance to provide cover in situations where it is proven that he was negligent in his care of a patient.

Note, it is possible that the surgeon may not have insurance, despite being required to do so by: state law; country law; or the professional body which regulates the surgeon's activities.

  • To avoid paying a claim unless it can be demonstrated that a claim on the policy is wholly valid and reasonable, based on the terms and conditions of the insurance contract, and the specific details of the medical treatment provided and the injury claim submitted.
  • To apportion a share of any potential liability to any other third party individual or company (or their respective insurers) who may have been negligent. For example, in cases of artificial hip recall this could be the distributor or the original manufacturer of the hip implant product.
  • To manage the future insurance risks and adjust insurance premiums paid by orthopedic surgeons in the light of actual claims experience.



P13 The Hospital or Clinic

Description

Objectives

The hospital or clinic (institution) at which the primary hip replacement surgery took place.

  • To ensure that every patient receives the highest standard of care when treated at that facility.
  • To protect and enhance its reputation for quality and excellence.
  • To avoid any activities or practice that falls short of minimum medical or surgical standards.

P14 The Hospital or Clinic's Lawyer

Description

Objective

A specialist lawyer, acting on behalf of the hospital or clinic - most likely, a specialist in the fields of public liability and medical malpractice law.

To refute, and defend his client against any alleged fault, liability or negligence related to the injury suffered by the recipient of the hip implant

P15 The Hospital or Clinic's Insurer

Description

Objectives

The hospital or clinic will have insurance cover to mitigate against a number of risks including public liability and medical malpractice.

  • To avoid paying a claim unless it can be demonstrated that a claim on a policy is wholly valid and reasonable, based on the terms and conditions of the insurance contract, and the specific details of the medical treatment provided and the injury claim submitted.
  • To apportion a share of any potential liability to any other third party individual or company (or their respective insurers) who may have been negligent. For example, this could be the orthopedic surgeon, or the original manufacturer or distributor of a product that has been the subject of an artificial hip recall.
  • To manage the future insurance risks and adjust future insurance premiums paid by hospitals and clinics in the light of actual claims experience.



P16 Expert Witnesses

Description

Objectives

Expert witnesses are typically highly experienced professionals in a range of technical disciplines such as orthopaedic surgery, metallurgy, engineering, product design. These experts are called on to provide expert, independent opinions in support of the case for the prosecution or defense (or both).

In an artificial hip recall case an expert witness might for example provide an opinion on a technical, legal, medical or professional conduct matter.

  • Expert witnesses are specialists who, for a fee, will provide their independent opinion, typically on a specific point of fact which either the defense or prosecution seeks to demonstrate.
  • The expert may have a current occupation, career or practice in his field of interest, or, he may derive his living solely as an expert witness.
  • The expert will at all times seek to protect and enhance his own reputation as a preeminent thinker and practitioner in his sphere of operation, and in so doing secure future work as an expert witness at premium rates.



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