Recipients of the Recalled DePuy ASR Hip May Unknowingly be Giving Up Certain Privacy Rights

In a traditional lawsuit involving a recalled medical device the manufacturer of the device does not gain access to confidential medical information of a patient until after lawsuit is filed. This information is provided by the patient’s attorney who ensures that sensitive medical information remains private. DePuy has taken the unusual approach of hiring a third party, Broadspire, to manage and oversee the approval of medical costs paid for by DePuy. While DePuy is agreeing to pay for certain medical costs relating to the recalled ASR hip implant, they are not fully advising these individuals of their privacy rights and options.

DePuy is asking patients of these devices to sign medical releases providing DePuy with full access to their medical records and complete medical history. Patients are being asked to give up privacy rights that are normal protected by the court system. The company has even gone as far as offering doctor’s $50 for each complete set of forms that are returned to them. DePuy’s position is that the payment is a standard reimbursement of costs. However, the conflict is obvious and it’s a back door incentive for doctors. Some doctors have even expressed how uncomfortable they are with this payment. They feel as though they are being paid to convince patients to give up their privacy rights without representation by counsel.

Broadspire is playing the role of a health insurance company. They are reviewing patient medical records and determining if the hip implant needs to be replaced. While this does not override a doctor’s medical opinion, it can be the determining factor for many patients who cannot pay for the replacement and are seeking financial assistance from DePuy. In a number of instances, part of Broadspire’s review includes a conversation with the patient’s doctor. A defendant in a lawsuit is never allowed to unilaterally have a conversation with a patient’s treating doctor without the patient’s attorney present. It appears DePuy has found a way around this. To further complicate things the doctors/medical personnel being paid to approve/deny these claims are being paid by DePuy.

Nowhere in this process is anyone looking out for the best interests of the patients and many are being taken advantage of because there has not been a full disclosure to patients about their privacy rights.