Despite Recall, Company Says Patients Liable for Revision Surgeries

After a massive recall, is a medical product-maker blaming the victims?

Chicagoan Scotty MacGregor can't walk very far these days, she says, without experiencing debilitating pain. In her line of work, that is a huge problem: she is a flight attendant based out of O'Hare International Airport.

"It is swollen, inflamed, burning and it pops and clicks and moves out of joint," she says, describing the hip pain she endures.

And she knows the pain well.  Two-and-a-half years ago, she had one surgery to have her right hip replaced.

"I was told I was walking bone on bone," she said, adding that she didn't at all fear the surgery.  "People have said hip replacement is one of the easiest surgeries, and I had total confidence going in."

But now, the surgery that was supposed to give her a new lease on life has come back to haunt her, she says, with pain much worse than the original.

NBC Chicago has learned Scotty MacGregor is in good company.

"On a scale of one to 10, with 10 being the worst pain you've ever had in your life, most people say it's an 11," said attorney Brian Devine. He represents MacGregor and 80 others in her same boat; people who received the DePuy ASR implant that has now been recalled for its high failure rate.

"The bone never grows into the device and the device over time, within a few months usually will start to loosen and cause the patient very severe pain," said Devine.

That pain, for patients around the world, would be bad enough. But the subsequent problem, according to a growing number of lawsuits filed by patients who have the implants, accuse the device maker of shirking its responsibility.

"They're telling patients to turn in the bills for this bad product, have Medicare pay it or have private insurance companies pay it," said Devine.

On its website, DePuy tells patients who need a second, or "revision," surgery that "bills for services should first be submitted to your insurance company or payer (public or private) in the usual manner."

"It's wrong because the company has admitted that this is a bad product. And Medicare shouldn't have to lay out the money," said Devine.  "Why should somebody's insurance company have to make payments in the hopes of one day being reimbursed?"

DePuy, a Johnson and Johnson company, voluntarily recalled 93,000 of the implants last August, acknowledging that "a higher than expected number of patients required a second hip procedure" after getting the defective part. The company said it initiated the recall when it received a study that indicated a 12 percent failure rate.

DePuy declined NBC Chicago's request for an on-camera interview, but in a statement said it is "committed to assisting patients affected by the recall by paying for the cost of doctor's visits, test and procedures associated with the recall."

But it appears that won't include MacGregor.

In an answer to the lawsuit she filed, DePuy denied the allegations, and alleged that MacGregor is the one who "was negligent, careless and at fault and conducted herself so as to contribute substantially to her alleged injuries and damages."

Her injuries, they said, "were not legally caused by the product at issue."

So what did cause her injuries? The company lays out six possible factors: an allergic reaction, an idiosyncratic reaction, an idiopathic reaction, an unforeseeable illness, an unavoidable accident or a preexisting condition. None of which, the company states, is due to its culpability.

Devine said that is the exact script playing out in many of his cases. The company's answer is a verbatim replica of five other complaints he has filed.

"When we ask them to pay it, when we ask them to just stand up and agree to do what they're telling the public they are going to do, they won't do it," he said.

All of this, MacGregor said, leaves her in a deeper hole than when she started: in more pain, with less mobility, and with no money or sick time left to go back to the operating room. Hip replacement is a surgery that can cost from $50,000 to $100,000  and takes at least two months to recuperate.

"The big corporation should be held accountable. When they put a product out on the market it better be researched. So myself and thousands of others don't go through these problems," said MacGregor.

DePuy responded to NBC Chicago's questions with the following statement:  

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