Dozens of cases being taken against the manufacturers of allegedly defective hip replacements may be struck out following a ruling by the High Court.
In what is seen as a test action that may have implications for a number of Irish cases Ms Justice Mary Faherty ruled that a claim brought by County Clare woman against the hip replacement makers required an authorisation from the Personal Assessment Injuries Board PIAB, now known as injuriesboard.ie, before it could proceed to a hearing before the courts.
Ms Randa Murphy from Ennis is one of a number of people who has sued DePuy international Ltd. The firm owned by Johnson & Johnson, is currently subject to thousands of cases worldwide. including several hundred in Ireland related to its 2010 world wide recall of faulty hip replacement systems it sold.
While Ms Murphy has brought parallel proceedings against DePuy where an authorisation has been obtained it is understood that as a result of the ruling up to 50 cases, where no authorisation was obtained, may not be able to continue as they are statue barred.
Ms Murphy claims she suffered severe ongoing pain and distress following hip surgery when she the recipient of a DePuy ASR resurfacing hip implant system. The surgery took place in October 2005.
In May 2010, she underwent further surgery on her hip. The following August, DePuy issued a world-wide recall in respect of two of its hip replacement systems, including the one which was inserted into Mrs Murphy in 2005.
After she discovered she had received a system subject to the recall, Mrs Murphy instructed solicitors to sue DePuy for alleged negligence and severe personal injuries.
In its defence to Mrs Murphy’s claim, DePuy’s lawyers argued that because Ms Murphy failed to obtain an authorisation from the board before bringing her damages claim, her case could not proceed.
The board is the independent body set up to assess claims for compensation for anyone who says they have suffered an injury. All personal injuries claims in Ireland, except medical negligence claims require authorisation from the board before they can proceed.
DePuy argued the action cannot be deemed to be one of alleged medical negligence because it is the manufacturer of the product at the centre of the claim and was not the provider of a health service to Ms Murphy. DePuy also submitted it did not carry out a medical procedure or treatment on Ms Murphy and therefore an authorisation was required.
Mrs Murphy’s lawyers claimed she did not need an authorisation. It was argued that because her alleged injuries arose in the context of advice and surgical treatment from a surgeon her claim fell within the provision of a health service and did not require an authorisation.
Her lawyers sought to have this particular point raised by the DePuy heard as a separate discrete preliminary issue prior to the full hearing of her damages claim, which they argue should be allowed proceed to a full hearing. As a precaution her lawyers brought parallel proceedings against DePuy where certification from the injuries board was obtained.
In a detailed ruling Ms Justice Faherty said Ms Murphy said she was “not persuaded” by arguments advanced on Mrs Murphy’s behalf that her claim arises out the provision of a health care service.
The claim, the judge added, relates to the manufacture and provision and supply of an allegedly defective hip implant system. The fact she received a surgical implant could not convert “the genesis of the action” into one where Mr Murphy was provided with “a health service.”
There were no allegations made by Ms Murphy in her claim against DePuy that it was negligent in the provision of any health service to Ms Murphy or that it carried out any surgical or medical procedure on her in a negligent manner.
There was nothing in Ms Murphy’s claim that could bring the claim within the provision of a health service, the carrying out of a medical procedure or the provisional of medical advice or treatment.”
“The focus of the plaintiff’s claim is on the defendants connection to the hip implant she received, ” the judge said. The judge added she could not accept that special medical evidence would be required at the trial could allow the court to treat the case as one where an authorisation was not required.
In all the circumstances, the judge said Ms Murphy’s action required an authorisation. The judge adjourned the matter to a date early next month to allow the parties consider the ruling.
By Aodhan Ó Faolain