Metal-on-metal hip replacement action fails

A 64-year-old former forestry worker has lost his action for damages at the Court of Session against two companies which manufactured the components used in his hip replacements 10 years ago.

The pursuer, who has a history of arthritis, underwent metal on metal (MoM) total hip replacements (THR) on both sides of his body in 2009 at the Golden Jubilee National Hospital. The metal parts that made up the artificial hips were manufactured by the companies Finsbury Orthopaedics Limited and Stryker UK Limited.

Three years after his operations, the pursuer underwent revision of his left sided implant. The right sided implant has not been revised.

The pursuer argued that he had suffered loss and damage as a consequence of the use of MoM THR in his 2009 operations. His case was based on section 2 of the Consumer Protection Act 1987 which imposes no-fault liability for damage caused by a defect in a product. The pursuer claimed that the MoM THRs used in his operations were defective because their safety was not such as people generally were entitled to expect.  The preliminary proof heard by the Court was restricted to the question of whether certain propensities and risks inherent in MoM THR prostheses rendered the particular combination of components used in the pursuer’s operations defective within the meaning of the 1987 Act.  

Lord Tyre found that the pursuer had not proved that the THR components used in his operations were defective in relation to entitled expectation at the time when his prostheses were supplied.

The pursuer’s argument had focused on the fact that surgeons had stopped recommending MoM THRs about three years after his operations in the wake of concerns about the length of time the MoM hip replacement lasted before it required to be revised compared to alternative products using different materials; and a higher risk of an unsuccessful revision.

However Lord Tyre wrote in his judgment: “In holding that the pursuer in the present action has failed to prove that the product supplied to him was defective, I do not exclude the possibility that another pursuer might be able to present evidence in relation to a different product sufficient to establish, on balance of probabilities, that entitled expectation in relation to that product had not been met. I have noted the view of Professors Breusch and Pandit [the consultant orthopaedic surgeons who gave expert evidence on behalf of the pursuer and defenders respectively], expressed in their joint statement, that ‘it is a consensus opinion now among orthopaedic surgeons that all large head MoM implants are associated with an increased risk of earlier failure than comparator non-MoM implants but most currently remain satisfactory under long term surveillance’.”

The Court heard that since 2012, the implantation of MoM THRs has stopped altogether, although some MoM hip resurfacings continue to be performed on patients, including the tennis player Andy Murray, for whom this is considered by surgeons to be the appropriate option. 

The case was the first such action in which a proof has been heard in the Scottish courts. Although the proof was concerned with a specific combination of components produced by particular manufacturers, it is envisaged that this Opinion will be of relevance to actions concerning MoM THRs more generally.

Read the full Opinion.

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