A Queensland lawyer has accused the state's injury compensation laws of putting hip replace patients "out on a limb" after 2000 patients were given "dodgy" hip parts.
Brisbane lawyer Mark O’Connor said new figures show more than 2000 patients throughout Australia were fitted last year with certain brands of artificial hips shown to have high failure rates, exposing them to a heightened risk of painful and expensive corrective surgery.
O’Connor, an injury compensation lawyer and a director of Bennett and Philp Lawyers, said Queensland law favoured insurers and was stacked against victims of medical misadventure.
Statistics heard as part of a Senate committee investigating the issue showed 24 brands of hip prostheses failed at twice the normal rate, but 2700 hip parts were implanted last year, according to figures provided by the lawyer.
More than half involved products previously identified as problem prone, according to the National Joint Replacement Registry. In Australia about 80,000 artificial hips and knees are reportedly implanted every year.
O’Connor said while the finger pointing over responsibility went on, the message to any Queensland patients was not encouraging.
“If the product fails you have to claim against the manufacturer. This is difficult as the products are often made in America.”
“A claim can be made against the importer in Australia but it’s a bit moot because the governing Federal legislation has restrictions on the ability to recover damages for pain and permanent impairment.
“There is a threshold of 15 per cent of the most extreme case to be exceeded before injured patients can be awarded these damages.
“If you can’t get over that magic figure there’s no compensation. You could go for out of pocket expenses, medical costs etc but as most hip patients are older, they are unlikely to get anything for lost income, especially if they are retirees,” O’Connor said.
The lawyer said the best option for most of these people is to register with one of the class actions.
Cost constraints in Queensland’s Civil Liability Act meant if the claim was for less than $35,000 the claimant could not recover their legal costs. If the claim was between around $35,000 and $58,000 the claimant could only hope to recover $2950 in legal costs, he said.
“The whole system is stacked in favour of insurers and against the patients. That’s the way the Queensland Government has stacked it. If you look at the $2950 of recoverable legal costs, just one expert medical report could cost that much so the system is grossly unrealistic to the actual costs incurred,” he said.
O’Connor described the Queensland compensation system as “very unfair’ particularly toward elderly victims of faulty medical procedures and said there was a desperate need for a complete overhaul of the compensation process.
“The uncompromising attitude to compensation was imposed on the public thanks to pressure on the government from insurance companies trying to deter claims. Anyone who has had to undergo a second hip replacement surgery knows how painful and traumatic it can be, yet our system is callous toward them.
“The Government has for years wound back the rights of the public to appease the insurers. The iniquity of the hip replacement issue and the way the system is stacked against the public illustrates the need for the public’s rights to be restored,” O’Connor said.
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