Interview with Attorney Gabriel A. Assaad of the Kennedy Hodges Law Firm on Bair Hugger Infection Litigation
Joint replacement procedure give hope for restored mobility and improved quality of life for the thousands of patients who elect to have the surgery done each year. If the artificial joint is contaminated by infection causing bacteria, the patient, instead of renewed mobility, may instead be facing permanent disability, extreme pain, multiple revision surgeries to correct and even death.
Recent lawsuits have raised the alarm that forced air patient warming systems, may have been contaminating the wounds and artificial implants with the airflow produced during operation.
We spoke with Gabriel A. Assaad, partner with Kennedy Hodges LLP — a law firm with over 50 years of combined legal experience which filed one of the first lawsuits of its kind linking the Bair Hugger warming blankets to causing these deep joint infections — about leading the legal industry on this important matter.
Can you share a little about how the possible link between forced-air warming and joint infections first came to your attention?
One of the partners at my firm had seen an article discussing the issue of forced air warming devices being linked to the development of infections in certain types of procedures. We looked into the science behind the allegations, reviewing a multitude of scientific studies and other documents, and saw that it was an inherently logical and viable theory. The more we looked into it, the more evidence we found that suggested that there was a concrete link between use of Bair Hugger devices during certain procedures and a higher incidence of infections after those procedures.
What can happen when a contaminated hip or knee replacement joint is implanted leading to a deep joint infection? What do patients possibly face post-surgery?
As a clarification to your question, the hip or knee replacement joint is not necessarily contaminated immediately prior to being implanted. It is certainly possible that dirt particles can be disturbed and settle on the components themselves as they are laid out in the operating room awaiting installation, leading to an infection. Additionally, infections can occur when those particles find their way into the open surgical site during an operation. We suspect this latter situation is how most of these infections develop.
The potential issues that patients face post-surgery are numerous. If an infection develops, it must be dealt with as soon as possible. If it’s caught early enough, this could mean a relatively straightforward cleaning procedure, such as an irrigation or debridement. However, if it isn’t discovered for some time and grows in size, it may require more drastic measures, such as removal of the implant and installation of an antibiotic spacer, or complete replacement of the implant altogether. Furthermore, there is the risk, especially with hip implants, that the infection could spread to other parts of the body, including organs.
The physical impact of these injuries due to infection is substantial. They can result in severe mobility and functionality issues, requiring an otherwise healthy person to resort to using a cane or a walker, or worse, a wheelchair. In some instances, an amputation may be necessary.
These types of injuries and limitations obviously have a substantial impact on the patient’s quality of life.
My implant was infected, how do I know if a Bair Hugger warming was used during my surgery and may have caused my complications? How widespread was device used in the operating room?
When anesthesia is used during a medical procedure, it causes a drop in body temperature. This decrease in temperature is critical in surgeries that take several hours or more, including knee and hip implant surgeries. Many medical studies purport to show less risk to a patient if some sort of warming device is used during the surgery. Accordingly, hospitals and medical providers use patient warming devices, such as the Bair Hugger, to maintain normal body temperature during these procedures. As a result, the vast majority of implant procedures use some sort of patient warming device.
Typically, hospital records from the operation will identify the equipment used during the procedure. The warming device used in the procedure is usually one of those items. The Bair Hugger device has historically enjoyed a substantial share of the patient warming device market, falling between 80% and 90% over the last decade or more.
Does it matter that I elected to have replacement surgery? Can I still file a claim for my complications?
It does not matter whether the surgery was elective or not—an injured party may still have a valid claim. Electing to undergo a surgery involving a knee or hip replacement, which in many cases is an absolute necessity to restore functionality and mobility, does not mean that that individual consented to a defective medical device used during those operations causing an infection.
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Deep joint infections can hide, not presenting symptoms for many months even years after the implant procedure, does it matter when my infection was diagnosed?
It is true that a deep joint infection can develop in many different ways depending on a number of factors. It is entirely possible that the infection may take some time to develop and become discoverable, leading to a delay in diagnosis. The sooner the infection develops after the implant installation procedure, the easier it is to attribute the infection to the Bair Hugger patient warming device used during the surgery. If there are significant delays, it may weaken the causality connection that has to be drawn between use of the device and development of the infection.
The initial complaints brought concern over hip and knee infections, are other procedures being investigated? Do you foresee any other surgical procedures potentially facing similar litigation over wound contamination allegedly caused by use of the forced-air system?
At this time, only knee and hip implant procedures are being considered. However, it is certainly conceivable that use of the Bair Hugger warming device in other medical implant procedures may be found to correlate to infections developing after those procedures.
I am a family member of the deceased who died following a string of joint replacement complications, can I sue on their behalf?
A family member of a patient who is now deceased can sue on that person’s behalf. Typically, this requires either a valid power of attorney authorizing the individual to act on behalf of the deceased or some form of order issued from the probate court with jurisdiction over the matter. We advise that any potential client in this situation consult with an attorney to determine the steps necessary to properly pursue a claim on behalf of the injured party’s estate.
Are potential lawsuits being filed individually? Is there possibility of an MDL in this matter? Any predictions legally speaking?
All potential lawsuits are being reviewed, evaluated, and filed on an individual basis at this time. I guess developing these cases into an MDL is a possibility down the road, as it is with any mass tort action comparable to this in scale.
What can coming forward with my claim do for me, how can an attorney help?
A client coming forward with their claim has many potential benefits beyond the potential financial recovery. It could offer an opportunity for closure in some instances. It could also offer vindication that the injuries that they suffered were not their fault.
When do I not need an attorney?
To pursue these claims, it is advised to obtain the assistance of an attorney immediately before your claims are time barred. This is a very complex area of law to try to navigate on your own. However, there are some things that can be done without the assistance of an attorney. One thing is obtaining copies of your medical records. Given the nature of these cases, hospitals and other providers are not adverse parties. They should be willing to discuss medical records or medical history with you so that you can better communicate the timeline. Providing us with medical records early in the process can help facilitate our evaluation of the claim.
What sets you apart from the other attorneys and firms asking for claimants to come forward?
The primary difference is that we are the forerunners on these Bair Hugger infection cases. We have been working on two pending cases in federal court that have both been progressing for the better part of two years. We have obtained favorable rulings on a range of discovery related issues, which bodes well for the further development and resolution of these cases in particular, and Bair Hugger infection cases generally.
More importantly, our experience with these cases has provided us with a substantial base of knowledge regarding the development of the Bair Hugger device, its manner of operation, the market share it enjoys, and many other elements that are critical in prosecuting a products liability action. This truly gives us a significant head start over other firms who may just now be starting to process and evaluate these types of claims.
How do you deal with the very serious and debilitating impact implant contamination and failed replacements can have on the injured and their family?
It is very tough to hear from our clients about the difficulties and complications they have experienced due to injuries arising from these infections. I have personally had several clients get emotional while speaking with me over the phone just discussing the difficulty they have had in day to day life due to these injuries, or a poor prognosis provided by a physician. I even had one client reiterate the 50/50 probability of survival a doctor communicated to him after an infection spread from his hip to other parts of his body. It’s very powerful to absorb, and really galvanizes your resolve to help these clients achieve the favorable outcome that is due to them.
You get a sense that our clients are frustrated, and even occasionally angry, that the promise for a better life that a knee or hip implant represents was essentially taken away from them after they experienced these infections. You make it your mission to do whatever you can to help rectify this wrong that was truly beyond their control.
Why do your clients love you?
We have a reputation for going out of our way to treat our clients as people. These Bair Hugger infection cases are the epitome of that principle, as these injuries have a way of demoralizing the injured party in a potentially devastating way. These cases demand a degree of sensitivity and understanding that our law firm is well known for.
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