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Johnson & Johnson Hiring of Contractor for DePuy ASR Implant Recall Raises Questions

Aug 23, 2011 | Parker Waichman LLP

It appears Johnson & Johnson is handling the DePuy ASR hip implant recall in an unusual way.  The company has hired a third-party contractor, Broadspire Services Inc., to administer all patient claims for out-of-pocket medical costs associated with the defective device, according to a Reuters report.

The unusual arrangement is causing concern on a number of fronts.  For one thing, Johnson & Johnson and its DePuy Orthopaedic division are requiring that doctors from Broadspire - not a patient’s own physician - determine whether a DePuy ASR hip implant recipient should undergo revision surgery.  If Broadspire says no, DePuy won't reimburse the patient.  Because Broadspire's physicians are paid by DePuy, some see a conflict-of -interest.

"Doctors who are evaluating these cases are being paid indirectly by DePuy, and research suggests that even when we are very well-intentioned we can be influenced by conflicts of interest," Kristin Smith-Crowe, associate professor of management at the University of Utah, who specializes in business ethics, told Reuters.  "This is a bit of a red flag in terms of the way this situation is set up."

Lawyers representing patients in lawsuits against DePuy and Johnson & Johnson also say the amount of information being collected by Broadspire is excessive, according to Reuters.  Last August, DePuy wrote to orthopedic surgeons asking that they give their patients a package of information about the ASR hip implant recall.  A DePuy-written letter, purported to be from doctor to patient, urged patients to set up an appointment with their doctor to discuss the ASR implant.  The letter also instructed patients to bring with them a signed medical release giving the physician permission to share information with DePuy.  The letter stated this information was important to get a claim processed efficiently.  Doctors were paid a $50 incentive for every completed form they returned to DePuy said.

"J&J (Johnson & Johnson)  is reaching out to doctors and asking them to use their influence with their patients in the hope that the doctor will help identify potential claimants in a lawsuit," one plaintiffs attorney told Reuters.  The lawyer, with 35 years of experience in the field, called the maneuver "unprecedented."

An official with DePuy disputed that characterization, insisting its handling of the recall is "standard practice."

Some doctors, however, told Reuters they have never been asked by a product manufacturer to persuade patients to give up their privacy rights, never mind being paid to do so.

"It made me uncomfortable,” Mark Barba, an orthopedic surgeon at Rockford Orthopedic Associates, a surgical center in Rockford, Illinois, told Reuters.   "I've never faced anything like that before. Never."

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