O'Sullivan v Depuy International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 29 November 2016
• Neutral Citation: [2016] IEHC 684
• Docket Number: [2012 No. 10576 P.]
• Court: High Court
• Date: 29 November 2016

[2016] IEHC 684

THE HIGH COURT

Cross J.

[2012 No. 10576 P.]

BETWEEN

GILLIAN O'SULLIVAN

PLAINTIFF

AND

DEPUY INTERNATIONAL LIMITED

DEFENDANT

Tort – Medical negligence – Hip replacement – Use of defective product – Damages & Restitution – Extent of discomfort – Risk of infection

Facts: The plaintiff sought an order for damages from the defendant in relation to the use of defective product that was used in the hip replacement surgery of the plaintiff. The plaintiff contended that due to the poor quality of the device made by the defendant, she sustained significant injuries that had rendered her immobile and underwent four hip replacement surgeries. The defendant contended that since the condition of the plaintiff was not catastrophic, the plaintiff was entitled to real rate of return at three percent.

Mr. Justice Cross awarded general and special damages to the plaintiff. The Court held that the plaintiff had suffered severe injuries to her hip, which were permanent in nature, and thus, the plaintiff was entitled for general damages to date and in the future. The Court concluded that since the present condition required that the plaintiff would need extra revision and home care, she was also entitled for past and future care expenses as well. The Court held that while awarding special damages, it must be kept in mind that the plaintiff must have access to funds so as to enable her to purchase the necessary aides and appliances, which were needed to live normal routine life as far as practicable.

JUDGMENT of Mr. Justice Cross delivered on the 29th day of November, 2016

1. Introduction

1.1 The plaintiff was born on 26th February, 1964. She has three children born in 1992; 1999; and 2002. As an infant, the plaintiff recalls being under the care of an Orthopaedic Surgeon and being placed in traction on a Spica which is a cast covering the top part of her limb up to her tummy. This is because she suffered from a condition known as bilateral acetabular dysplasia which is a congenital deformity of her hips.

1.2 The plaintiff states and I accept that after her treatment she lived a normal life going to school which she left at sixteen. She worked in a gun shop in Waterford and then travelled around Europe working in London and Amsterdam where she was a ‘runner’ for a hotel, which involved positioning herself in the Central Railway Station and inviting tourists to stay in the hotel she worked for and bringing them back to it. She then returned to Ireland and worked as a school secretary for a number of years and then worked in a public house in Waterford performing all the physical tasks associated with work in a public house apart from lifting beer barrels.

1.3 She was in a steady relationship until approximately 2004 and had three children as stated. The plaintiff agrees that when she was in Amsterdam, in particular, friends and acquaintances referred to as walking like ‘John Wayne’ which I believe means that she had a somewhat rolling gait.

1.4 Up to about 2002, the plaintiff states that she did not have any difficulty with her hips but around that time developed increasing problems due to arthritis.

1.5 She was ultimately referred to Mr. O., a well known Orthopaedic Surgeon.

1.6 In September 2002, Mr. O. first saw the plaintiff, he found her hips had limited movement and he concluded in his letter to her GP that she required both her ‘knees’ (sic) done. The plaintiff's stiffness and incapacity continued and worsened and the left hip was not replaced until 19th October, 2005, the right hip was replaced in May 2006.

1.7 The plaintiff states and I accept that before the surgery she did not use a crutch and her recollection is that she was able to walk at her own pace, manage to go upstairs and everywhere though she agreed that she had ‘little rheumatisms’ in winter time.

1.8 It is accepted that the plaintiff is a honest historian who in no way consciously exaggerated but it is also accepted by all sides that memories of patients tend to combine different events and are not to be trusted entirely especially as to timelines. I find that the plaintiff was more incapacitated prior to her replacement than she recalled.

1.9 Accordingly, I accept that the plaintiff was in need of her hip revision and was in pain and had stiffness and some disability by the time of her first operation in 2005, though I also accept that she managed to get about generally unaided.

2 The First Operation – Left Hip Replacement, October 2005

2.1 Mr. O. was not alone an Orthopaedic Surgeon, he was also on the design team of the defendant company in relation to their innovative Metal on Metal (MOM) hips. He advocated the use of DePuy hips and advised the plaintiff that it was a ‘once in a lifetime’ job and that she would have hips like ‘Brian O'Driscoll’ (this I understand, was, at the time, meant to be suggestive of great future mobility).

2.2 The MOM DePuy product known as ASR and ASR XL promised greater flexibility and greater durability. It contained chromium and cobalt and was characterised by two essential features, a shallower cup and a smaller clearance between the cup and the ball.

2.3 The plaintiff was some ten days in hospital after this procedure and returned home with a walking frame and felt that she had to drag her left leg after her. She then mobilised first with two crutches and after that with one.

2.4 After the first operation, the plaintiff had to sleep downstairs, as she could not readily climb her stairs. Her relationship with her partner had terminated some time in 2004, but after the operation, and up to this day, her partner provided great care and assistance for her working around the house and garden, assisted her in dressing and performing bodily function and doing heavy shopping and the like.

2.5 In the operation, the plaintiff's left leg was lengthened by about 3 to 4cm and the operation itself was a difficult one.

2.6 It is correct that the inference could be drawn from the plaintiff's evidence that the operation was of no assistance to her and that she was just the same after it as she was before. As stated above, it is agreed that she tended to combine different events and her recollection is to timelines may not be satisfactory.

2.7 However, the plaintiff specifically pointed out that her problems did not remain the same but gradually got worse stating that in 2007, she started to get grinding sensation ‘continuously in both legs’ which her children heard especially when she moved and she was particularly sore, a pain which she differentiated from rheumatic or arthritic pain. I accept this evidence in conjunction with the evidence of her medical and doctors notes that she did get relief after the replacement and that her problems gradually got worse.

2.8 The plaintiff's notes from Mr. O. point to an ‘excellent recovery’ and her problems and difficulties, as stated by her, were not recorded to Mr. O. The plaintiff stated that her relationship with Mr. O. broke down and she did not find him an easy person to talk to. I believe that this breakdown of relationship with Mr. O. probably occurred after the second operation and not after the first. I accept that in the initial two years or so after the operation, the plaintiff did experience relief from her pain. She was, however, required to engage in stretching of her legs and muscle building in order to get a good clinical result and this, of course, was distressing. I also accept her evidence that her mobility did not return to what she had anticipated.

3 The Second Operation – Right Hip, May 2006

3.1 Mr. O. performed a replacement operation on her right hip on 17th May, 2006, and she was discharged after nine days. Complications are not mentioned in her medical notes and up to 2007, Mr. O's records indicates that the plaintiff had returned to a lot of her pre-operation activities of swimming and walking etc. The plaintiff, however, stated, and I accept, that all of these activities were very limited.

3.2 Around 2007 or 2008, some surgeons including Mr. N. who gave evidence on behalf of the plaintiff began to have doubts and suspicions in relation to the efficacy of the defendant's ASR and ASR XL hips and in 2009, the defendant's withdrew their product from Australia and subsequently, there was a worldwide recall of the product.

3.3 The cause of the problem, it is alleged, is the presence of excessive metal ions by reason of the grinding of the prosthesis due, it is believed, to the shallow cup and small clearance between cup and bell. These ions get into the blood supply and then can cause significant damage to the patient including metallosis i.e. metal fibres from the implant and fluid builds up and damage is caused to the bones and possible soft tissue damage which is deemed to be Adverse Reaction to Metal Debris (ARMD) which is sometimes also referred to ALVAL.

3.4 It is alleged that the cause of the problems in relation to the defendant's MOM hips was the peculiar and particular design of these hips but for reasons they would be later explained is not necessary to give any determination on that point.

3.5 In late 2007, the plaintiff attended Mr. O. and complained there was something significantly amiss in relation to her hips. The plaintiff had attempted to contact Mr. O. some period before she managed to get a consultation. He recorded that she was quite symptomatic and stiff and has ‘a lot of grinding of the left hip and flex to 30 to 40 degrees’. The plaintiff in her evidence referred to the grinding as being a noise which her children could hear, being particularly loud when she moved and it was particularly very sore. It was not similar to arthritis or a rheumatoid type of pain but was a pull on her legs and her lower leg felt as if she was wading in water and she was not moving properly. She was very fatigued...