Understanding the Basics of
a Hip Replacement Lawsuit

Introduction

This tier 2 page is intended to help with basic orientation and understanding of a hip replacement lawsuit. The main topics are covered at summary level below, with greater detail provided on the tier 3 pages that are linked and which support this page.

The objectives of this page are to:

  • Outline and explain the basics: the who, what, where, when and why of Hip Replacement Lawsuits.
  • Highlight some of the risks and issues that are typically associated with taking a legal action
  • Explain some of the jargon and legal terms which necessarily creep in to any discussion of a hip replacement lawsuit
  • Provide some helpful information as you consider whether you wish to initiate a legal action and if you do, highlight some considerations as you select and start to work with an attorney

Also, in line with a key theme running through the whole of this website, I aim to simplify what can sometimes be a fairly complex topic. I'm mindful that the vast majority of people do not have experience of the legal system and lawsuits.

Overview of this page

The diagram below provides a backdrop and I hope a useful frame of reference for our consideration of a hip replacement lawsuit.

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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).

Note the following key points:

a) The diagram shows the injured party (You - the 'Plaintiff'), at the centre

b) Your attorney is in the key support role:

  • Acting on your behalf, always keeping in mind and acting in your best interests - seeking to get the very best outcome possible for you
  • Providing expert professional legal opinion and advice at every stage of the process
  • Representing you in court should your hip replacement lawsuit require it

c) The diagram illustrates how a claim for Personal Injury breaks down into at least two possible subcategories, namely: Medical Malpractice or Product Liability. It is essential to determine the basic nature of your case - in simple terms, the root cause of the injury you have suffered must be identified and understood.

d) It is quite common for there to be multiple parties involved in a legal action that results from a hip replacement recall, for example: insurance companies; a medical device distributor; a claims handling company; an array of lawyers and supporting expert witnesses. More information on the various parties involved and their particular agendas and objectives can be found here.

Cause of Personal Injury:
Medical Malpractice or Product Liability?

As part of the preparation for a potential hip replacement lawsuit it will be necessary to establish very early on the fundamental nature of the case. Whether, for example, the recipient of a hip implant has actually suffered a personal injury, and whether the root cause of that injury can be attributed to either:

  • The hip prosthesis, OR
  • The action (or inaction) of medical professionals involved in its selection and the hip replacement surgery.

A skilled attorney will be able to assess the facts and give guidance as to whether the potential case is one of medical malpractice or product liability. This is a critical distinction but there is the potential for some overlap as illustrated in the diagram at the top of this page.

The true nature of a hip replacement lawsuit should influence which attorney or legal firm is selected to prepare and ultimately prosecute the case. In principle, it would be foolish to select and work with a specialist in medical malpractice law, when the root cause of the injury is in fact a defective hip implant product.

Refer to the definitions section below for more information on Personal Injury, Medical Malpractice and Product Liability cases.


Basic Definitions

Personal Injury (PI)

Personal injury is the legal term used to describe an injury to an individual's body, mind or emotions, caused by the negligence of another.

A personal injury is a type of tort (a civil wrong as opposed to a criminal wrong). A personal injury lawsuit will typically allege that the plaintiff's injury has been caused by the negligence of a third party (the defendant). In the case of a hip replacement recall, the negligent party is often the manufacturer or distributor of the hip replacement implant.

Given that a tort is a civil wrong rather than a criminal matter, typically no government funding is available to provide (police) detectives to carry out an investigation, establish the facts and build the case. This is why the cost of investigation and building a hip replacement recall case typically falls to the legal firm that takes the case on.

Interestingly, in the US, the headline figure is that less than 10% of personal injury cases go to trial; or put another way, at least 90% of all PI cases are settled out of court.

Medical Malpractice (MM)

Medical malpractice is the negligence of a medical professional, either by act or omission, in which the treatment provided falls below the standard of practice that can be reasonably expected by a specific medical community (specialism such as orthopaedic surgery); and which causes injury (or death) to the patient. Most cases involve medical error, rather than deliberate intent to cause harm.

Hip replacement malpractice is simply one specific example or category of the wider tort of medical malpractice.

See also hip resurfacing system - hip replacement manufacturers produce complete (coherent) systems, the component parts of which are designed to be used together. Latest advice from Regulators is that components should not be mixed or matched between hip replacement systems. However, historically in some countries, the practice of mixing & matching components between different hip replacement systems has been quite commonplace.

Product Liability (PL)

Product liability is the category of law through which manufacturers, suppliers or distributors who make products available for use by the public are held responsible for injuries caused by those products. Follow the link for more detailed information on the hierarchy of product liability cases and more specifically defective hip implants.



Who's Who in a Hip Replacement Lawsuit?

There are three main parties involved in any hip injury lawsuit as follows:

  • The plaintiff (You) - the individual who has suffered a personal injury
  • The attorney representing the plaintiff
  • The defendant - the company that manufactured or the organization that distributed the defective or recalled hip implant

There are a number of other parties involved in a hip replacement lawsuit including potentially: orthopedic surgeons; hospitals; clinics; insurance companies; numerous lawyers representing these individuals, companies or institutions; expert witnesses.

See also Hip Recall Lawyer v Attorney definition.

Financials - Overview

Often people quite naturally want to know as soon as possible what level of financial compensation they might be entitled to should they take legal action and that action be successful.

Once again, this is a question that is very difficult to answer until a full medical assessment has been undertaken, and your lawyer has had the opportunity to carry out a detailed review of the circumstances and specific characteristics of your case.

There are some emerging indications in the public domain of the broad sizing of financial compensation that is being agreed. This is based on early cases of personal injury from metal on metal hip implants being settled by some manufacturers.

These insights give only a broad and general indication of potential financial compensation, and in no way guarantee that any subsequent plaintiffs, with their own particular and unique circumstances will necessarily secure financial compensation of a similar amount or even at all.

Financial considerations are covered in more detail in the Financial FAQs section of this site.

Statute of limitations

Certain dates and timescales are critical to the potential success of a hip replacement lawsuit.

In most countries a statute of limitations applies to certain categories of case, which in simple terms sets a maximum time period following an event, after which a legal action can not be initiated.

The statute of limitations and therefore the relevant deadline for commencing a legal action can vary from country to country, and even from state to state within a single country, for example the United States.

You should seek a definitive opinion from your lawyer on the key dates that apply to your situation. He will ask you for all the relevant dates including the date:

  • of your original hip replacement procedure;
  • on which you were diagnosed with hip replacement complications or symptoms suggestive of a personal injury caused by the defective hip implant;
  • you were notified or became aware of the recall of the hip implant product.

If you are considering initiating a hip replacement lawsuit it is essential that you speak to a lawyer as soon as possible if for no other reason than to establish where your particular case sits on the timeline, tracking towards the hard end-date as prescribed by the statute of limitations.

It may be that you only have a very limited time window remaining within which to lodge a claim. Set against that of course, no one should rush headlong into starting a legal action without giving careful consideration to both the upside and downside risks of doing so.

Hopefully the general information on this web site will assist with your orientation and thought process, but it is no substitute for professional legal and medical advice based on your specific situation.

How long will a legal action take?

It is almost impossible to predict how long a hip replacement lawsuit will take to complete. Each case is unique in terms of its characteristics, nuances and the legal framework within which the case is prepared and prosecuted.

It is theoretically possible that a case could be concluded within months, if it is a clear cut case and settled out of court, but at the other end of the spectrum there are cases that take many years to conclude.

You should discuss this with your lawyer to get a professional opinion on the likely duration of your potential hip replacement lawsuit. It is an important consideration because you should not underestimate the impact that the uncertainties that are inherent to a legal action might have on your stress levels and health, particularly if the case might take years to conclude.

The End to End Hip Replacement Recall Process

Planning and undertaking a hip replacement lawsuit is just one part of a wider process. I suggest you take a look at the full (end to end) hip replacement recall process to get the wider context.

Class Action or Mass Tort?

When a hip replacement implant is recalled, it is quite possible that many thousands of individuals will have been fitted with that type of device. As a consequence, at any one point in time, there may be thousands of hip replacement lawsuits at various stages of progression.

Depending on the specific circumstances, including the nature of the product recall and the nature and scale of personal injuries alleged to have been caused by the product, it may be that individual plaintiffs come together and form a collective group to make the legal processes more efficient (cheaper and faster).

Depending on your circumstances it may or may not be in your best interests to align your own hip replacement lawsuit with one of these collective actions. You should seek your own legal advice on this point.

Follow the link for information on hip replacement class action lawsuits and mass tort actions.

Geographic Considerations

A hip replacement lawsuit will be influenced by a number of geographic considerations including, but not limited to the following:

  • In which country and state did the original hip replacement procedure take place?
  • Have you since moved house since your hip replacement operation, and if so where do you live now relative to the location of the original surgical procedure?
  • Which manufacturer produced the defective hip implant and where is the manufacturer's business legally registered or based?
  • Did your orthopaedic surgeon source your hip implant direct from the manufacturer or via a third party distribution company? If the latter, where is that distribution company legally based?
  • Your personal legal case may benefit from multidistrict litigation which may well already be in progress in one particular state (US only).
  • If your potential hip replacement lawsuit is based on a claim of medical malpractice against a healthcare professional, you'll need to consider:
    • Where did the original treatment take place
    • If the individual is still practicing, then where is he or she based currently?

Legal FAQs

I have created a list of Legal FAQs that cover some of the themes summarized above in more detail, and to consider some additional legal matters.

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