Every six months or so, the Injuries Board issues a press release. These follow a fairly standard formula. The board praises itself for saving notional sums of fantasy money. It castigates dastardly solicitors for representing clients, even though the Constitution guarantees clients that right. It darkly suggests- without providing any evidence- that only its constant vigilance prevents dishonest claims from running riot.
And then, because it probably knows that this sort of thing isn’t much of a hook on which to hang a news report, it lets drop one or two statistics.
But yesterday, without apparently understanding the significance of what it was saying, the Injuries Board let slip a number which suggests that hundreds of people who have been injured because they were fitted with faulty (and now recalled) hip implants made by DePuy are at risk of their claim going statute barred.
Year to date, Injuries Board has received 605 claims in respect of the De Puy hip replacement recall. As a total of 3,500 implants are understood to have been fitted, further claims are likely to arise.
The Press Release goes on to say
The average time taken by InjuriesBoard.ie to make an assessment is seven months.
The reason every one of those 605 people should be concerned is that the Injuries Board has no role in a claim for compensation arising from the DuPuy hip cases.
Section 3 (d) of the Personal Injuries Assessment Act 2004 is very clear that the Act is not applicable to civil claims;
arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person.
If somebody opens up your body, replaces one of your major joints and then sews you up again, we can be fairly confident future claims about what they put in there are going to fall under this exemption.
And, as these sorts of claims are exempted from the entire Act, the provisions of the Act that stop the clock from running against an injured person after they have made an application to the Injuries Board also do not apply.
That clock only lasts two years. After that, the injured recipients of these recalled hips will be prevented from suing those responsible for their injuries. They will be what is known as Statute Barred.
Here’s the description from the NHS of the sorts of injuries those people would be stuck with, without any right to redress:
- pain in the groin, hip or leg
- swelling at or near the hip joint
- a limp or problems walking
- tissue damage from Metal ions (Chrome and/or Cobalt)
The same document confirms a risk of secondary systemic poisoning by the build up of those metal ions
There has been no definitive link between ions from MoM implants and illness, although there has been a small number of cases in which high levels of metal ions in the bloodstream have been associated with symptoms or illnesses elsewhere in the body, including effects on the heart, nervous system and thyroid gland.
The first set of claims in the US settled in August for approximately $200,000 each. These are significant injuries which will result in claims estimated to cost the manufacturers around €1.5 billion, when all is said and done.
Given that DePuy are already (inaccurately) attempting to suggest that there was a deadline in August 2012, anything which further delays these cases from commencing is potentially disastrous.
A seven month delay (the Injuries Board’s self declared average) could be the difference between having a valid claim for personal injury compensation, and having none at all.
The Injuries Board have no part to play in claims for compensation for faulty DePuy hip implants. If claimants or their solicitors erroneously lodge an application with them, it is vital that the Injuries Board immediately reject it. Anything else puts injured people’s rights at risk.
Very informative post, thanks.
Just to add that DePuy hip replacees likely have a valid claim under the Liability for Defective Products Act 1991, which allows for a limitation period of THREE years: so, even if they are out of time to lodge a PI Summons, they can in all probability still proceed with a claim for negligence and personal injury under that Act by filing a Plenary Summons/Ordinary Civil Bill within three years of the date of knowledge of DePuy’s liability.