My friend Amy Dougherty is a physical therapist in North Carolina and operates Outer Banks Physical Therapy. She is a graduate of the University of North Carolina at Chapel Hill (where I also attended college and law school). She is an outstanding physical therapist and is beloved by her patients on the Outer Banks. Amy answers many of your questions about hip replacement surgery, metal-on-metal artificial hips, and the problems that have arisen from these hip products.

Clay: I want to focus on hip replacement surgery and I know you work with patients who are dealing with that kind of surgery every week. So let me start by asking what are a few reasons a person might need a hip replacement surgery?

Amy: You know, the most common reason is arthritic changes in the hip. So basically arthritis, that is the most common reason. Other reasons can include things like trauma. Some people have congenital mal-alignments where, it is basically called dysplasia where through the process of their development in utero and then following their bony surfaces of the femur, that is the long thigh bone and the acetabulum which is in the pelvis. They do not form correctly, so they might have ill-formed femoral heads. They might have ill-formed or ill-shaped acetabulum. So, the ball and the socket are not really designed well to weight bear. So, a lot of folks that, especially in a young population, that have early onset hip replacements. It is more likely the result of some type of congenital dysplasia. It could be a trauma. So, but arthritic changes is the number one reason and I have total hip replacement patients in my clinic every day. Very popular surgery, yes.

Clay: Very common especially once you get into the middle age and even older.

Amy: Absolutely. It is very common.

Clay: Well, how soon would physical therapy start after a total hip replacement?

Amy: Typically, the PT shows up within 24 hours of your surgery when you are in the hospital. So, what you can expect is basically after you come out of recovery, the physician or the nurse will come and talk with you and tell you when you will start your first PT. Sometimes, it is within 12 hours. It really is all dependent on the amount of time that is projected to be your discharge. Time or day, and that is something that actually frankly is changing dramatically over the course of the last 18 to 24 months. So total hip replacement surgeries are moving from being a two-day event in the hospital, which is what we used to see very commonly, to most likely being a predominantly outpatient surgery within the next five years.

Clay: Outpatient surgery–is that right?

Amy: That is right, and there is some pretty reasonable science to support why transitioning to outpatient is a great idea and is basically because of infection rates and things like that. And so, they are looking, I mean they being the world of orthopedic surgeons and the world of joint replacement specialist. They are looking to transitioning. It is already happening in some places, not on the Outer Banks, but it is happening in some larger cities where they are doing small groups of folks who are good candidates, so they are essentially very healthy people who frankly do not need to be hospitalized. They can go to an Ambulatory Care Center and safely receive a total hip replacement and go home that same day.

Clay: Could it also be maybe that recovering at home is a happier place for people?

Amy: No question. All of us would rather be home than at the hospital, and so the biggest issues that come into play are first and foremost safety, so you have to be safe to go home. Once you are in the recovery room you have to be medically stable. Pain needs to be adequately manage and that is something within the Joint Replacement Community, that is really becoming more and more well-researched and well-managed is how to keep people comfortable while they are recovering from this very big surgery. That is a big event, so managing the pain, making sure that they are safe to ambulate because you can walk on that new hip pretty much as soon as their block wears off as soon as anesthesia allows.

Clay: So whenever you come home, whether it is the same day or a couple days later and the patient is able to get to your office, how soon– so walk us through what PT might look like in the first visit to your office and then in the weeks that follow.

Amy: Typically, I will sometimes see people that are coming straight from the O.R. Basically, they may spend a day and a night in the hospital they come home and they are usually starting with me within a day or two of being home. So sometimes I will see them immediately post-op, some surgeons want those patients to be seen at home anywhere from two to four weeks. Generally based on surgeon preference. Sometimes it has to do with family logistics in that patient might live alone. They can not drive those first couple of weeks. So there are some issues that play into the decision making on whether they start outpatient, which is my clinic, or whether there is seen at home for home-based physical therapy. But if you come to my clinic the first thing that is going to happen is you are going to undergo an assessment, and that is basically where after doing a bunch of intake paperwork, where we make sure that you are actually medically stable, we start talking about your function. We start talking about “Hey, how are you doing?” What is your pain like?” We use pain scales and I expect because it has become such a big movement in orthopedics to better manage people’s pain so that they move.

Because we know that one of the things that is most helpful after joint replacement surgery, be at a hip or knee, is the ability to move. If you have got so much pain, you can not move all of a sudden, your risk factors go up substantially in regards to blood clot or onset of pneumonia. So, we know that moving is important. We will talk about your pain. Make sure that your pain is being adequately managed and then we will start looking at that lower extremity. I will have you walk for me. I will look at edema, will look at bruising, depending on whether your surgical dressings are off or not. I will look at the surgery site. Make sure it all looks good clean and dry, occlusive bandages or it should be in place at that point and then, just basically initiate the onset of PT which is assessing, and then addressing strength loss this most in deficits. We spend a lot of time talking about precautions, because there are some precautions after hip replacements depending on the approach that the surgeon has taken. So, there are some options available in regards to whether you have what is called an anterior approach or posterolateral approach. And so, there are some precautions and we make sure that the patient is well versed in that, and understands why the precautions are important. And then, we start to exercise, we start to move.

Clay: I know it is different for different patients based on how fit they might be, how young they might be. But how long does that therapy last working with you? And then when do you say “Okay, you are free to go but take these exercises home with you and make sure you do them”?

Amy: We start immediately. We start the first day they are there. Nobody leaves my clinic without having things to work on at home.

Clay: And so how long do those exercises last with you versus when you say “Okay you are released from me and you can do these at home without me”?

Amy: Frankly, it depends, and what I have come to realize through a lot of years of clinical practice is the fitness level that someone takes into the operating room. Absolutely dramatically affects how long they are with me. So, if you are pretty active, pretty strong, pretty fit, you just have a bad hip, and you can be all those things by the way, and still have a bad hip. So if you are pretty mobile and you have maintained pretty decent strength pre-op, you are not going to spend much time with me. A couple weeks, maybe. If you are really debilitated and we see this very commonly in people who have really put off having the joint replacement, maybe waited a lot longer than they should have.

Sometimes, there is a concomitant problems going on at the knee, at the foot and ankle, on the contralateral side, will see some problems that affect their ability to ambulate. And at the end of the day, with a hip replacement, our goal is generally normalize gait. I mean, that is what we are looking for and everything that normalized gait entails and so that strength, mobility, balance, neuromuscular control of the extremity. So at the end of the day, that is really what we are looking for is normal gait.

That is what frankly people that are having their hips replaced, they will tell you “I can not walk. I can not ascend or descend the stairs.” I live at the beach, you know people’s inability to get onto the beach is a huge issue. So because you take gait, and now you put it on an unstable surface like sand and the demands are exceptionally greater to be able to walk the beach than are to walk on the sand. So that is something in that first visit that we talk about “What are your goals?” I will specifically ask the patient when I am interviewing them, when I am evaluating them “What are your goals?” [and] “What is it that you have this hip replacement for a reason?” [and] “It is an optional surgery. Your life did not depend on you getting a hip replacement. So, what are your goals?”, “What did you decide, you have decided to make this commitment of time, money, risk, you have done those things to do something. Is it to be able to get through the night without pain?” For some people, that is their ultimate goal. Most people, it is mobility. I want to be able to get onto the beach, you know, some people I work in a beach community. I have patients that their goal is: I need to get back on my surfboard.

Clay: Right.

Amy: If it is somebody who basically just wants to be able to grocery shop and, be able to get their groceries in and out of their car independently and walk with a normal gait, unless they are profoundly weak when we start, it is not going to be too long. So, I know that is a ridiculously vague answer.

Clay: No, everybody’s different.

Amy: But fundamentally, everybody’s different with what they bring into the operating room and everybody’s different with their expectations following. So, the way I rehab a 35 year old, and the expectations and the demands that 35 year old is going to place on that new hip is going to be profoundly different than my 82 year old.

In Part 2, Amy and I discuss recovering from hip replacement surgery, returning to activity and even sports after hip surgery, and the importance of getting active and staying active.

COVID-19 has altered everyone’s schedule. Schools, colleges, and restaurants have closed. Even courts have shut down for non-urgent hearings and trials. In June, Judge Catherine Blake, overseeing the Smith & Nephew Birmingham hip litigation, issued an amended Case Management Order to extend discovery deadlines and bellwether trial dates for the multidistrict litigation.

Remember the Smith & Nephew Birmingham hip MDL is moving forward on two tracks: one set of cases involve the BHR components that were used in hip resurfacing procedures, and a second set of cases (“THA Track”) involve those individuals who received Birmingham hip components as part of a total hip arthroplasty (THA). Let’s breakdown the recent schedule changes for each track:

BHR (Resurfacing) Track:

Amended Case Management Order No. 16 has rescheduled the first BHR bellwether trial for May 25, 2021 and the second bellwether for July 26, 2021. This means the new CMO has pushed these trials out six months. It’s disappointing that we won’t get our first Smith & Nephew jury verdict by the end of this year, but totally understandable in these unprecedented times.

Discovery is the sharing of documents, materials, information, and evidence between the plaintiffs and the defendant prior to trial. The close of “general liability fact discovery” for BHR Track cases is now July 15, 2020, and case-specific fact discovery will be completed by October 20, 2020.

Expert discovery deadlines for both sides, which includes expert disclosures, expert reports, and depositions, now stretch from July 15, 2020 to October 30, 2020.

For the cases chosen to be considered for bellwether trials, case specific discovery will now run from November 30, 2020 through February 5, 2021.

Motions often follow discovery. These motions may involve one side’s challenge of the validity of expert testimony, or the admissibility of certain evidence, or the science behind certain claims. In the Smith & Nephew litigation, these motions will now be filed beginning November 30, 2020, and hearings on these motions will continue through June 4, 2021.

THA (Total Hip Arthroplasty) Track:

Discovery for the THA Track cases chosen as possible bellwether cases will end on December 1, 2020. From there, plaintiffs and defendant will select two cases to be considered for bellwether trials. Any additional discovery for these four cases will continue until March 12, 2021. Judge Blake has stated that she will issue a separate scheduling order for the THA Trial cases down the road.

Finally, the coronavirus is even changing the way the law is practiced. Many depositions are now being handled through secure video conferencing (remote depositions). While in-person depositions remain the gold standard, remote/video depositions are now being pressed into service to encourage social distancing. Judge Blake issued CMO No. 17 to set forth guidelines for handling remote depositions. These things can be a bit clunky, such as when you are handing over several exhibits for the deponent (the person being asked questions under oath). CMO No. 17 attempts to provide guidance on these issues for the Smith & Nephew Birmingham litigation, including authorizing the use of a deposition “concierge” to help with technical issues and even to hand over exhibits.

In general I think video depositions are great. Setting aside the health advantages in a pandemic, video depositions cut down on travel and litigation expense. I believe the legal profession should always do whatever it can to reduce the costs of litigation, as these costs inevitably reduce net awards for plaintiffs. So that’s a small bit of good news. I suspect when this pandemic is behind us, many of the changes created by the need for social distancing will remain because it simply works better.

The Takeaway:

Multidistrict litigation involves hundreds and often thousands of individual plaintiffs, from all across the country, who have been injured in similar ways by a defective product. Even without a pandemic it takes years to corral this information, to try bellwether cases and to negotiate fair settlements. The COVID-19 pandemic has caused delays in the Smith & Nephew Birmingham hip litigation and will likely cause further delays. You should always be patient when you have a case in any MDL; now you must be especially patient.

As always, you can call me to discuss your potential case: (919) 830-5602. Good luck!

I have written about artificial hip litigation on this site more than any other area of product liability law, and for a very good reason: there is a lot to write about. Metal-on-metal hips have gravely injured tens of thousands of people, and new victims are undergoing revision surgeries each week to remove defective hips. One current active litigation involves Smith & Nephew “Birmingham” artificial hips. MDL 2775 is the multidistrict litigation court handling hundreds of lawsuits filed against medical device maker Smith & Nephew for these (allegedly) defective artificial hips. There are several artificial hip products involved in MDL 2775:

Birmingham Hip Resurfacing System (BHR). The multidistrict litigation court was first organized to handle these BHR lawsuits. The BHR system is a type of metal-on-metal artificial hip, but in resurfacing procedures the hip “ball” bone is shaped and resurfaced with a smooth metal covering and a metal shell is implanted into the hip socket, thus creating a metal-on-metal connection or “articulation.” As with most metal-on-metal artificial hips, Smith & Nephew uses cobalt and chromium to construct both of these resurfacing components. These metals have been shown to wear away and leach into the blood and tissue of the patient, causing all kinds of symptoms and problems, including metallosis.

BHR Hip Components Used in Total Hip Arthroplasty (THA). These hip implants are constructed with Smith & Nephew BHR components and non-BHR components, but instead of resurfacing the “ball-bone” with a metal covering the bone is removed and a metal ball component is implanted. MDL 2775 added these Total Hip Arthroplasty (THA) cases to the litigation shortly after the MDL launched.

Smith & Nephew R3 Liners. This hip implant consists of a metal liner placed between the femoral head and cup, which creates a metal-on-metal articulation. The R3 has experienced many of the same problems that other metal-on-metal hip implants have caused, including metallosis, pain, and loosening. Smith & Nephew issued a voluntary recall in June of 2012. At the time of the recall, approximately 4,000 R3 liners had been implanted in patients in the United States.

Judge Catherine Blake–who oversees the MDL–has divided the cases into two tracks: the “BHR Track” and the “THA/R3 Track.” For a person injured by the failure of one of these hip implant systems, you will need to verify the exact components implanted and file the proper case under the BHR Track or the THA/R3 Track. (Of course, your attorney is supposed to do all of this work, and you need an attorney for these kinds of cases, as I discuss here.)

Some Smith & Nephew Cases Dismissed Because They Were Filed Too Late

On November 19, 2018, Judge Blake considered motions to dismiss from Smith & Nephew lawyers, who argued that dozens of cases in the MDL were time-barred. I wrote about statutes of limitations in a prior post, and I’ve referenced it often on this site, but in a nutshell it is one major defense for a company sued by a person injured by a defective product.

Judge Blake denied most of the motions to dismiss in her Order. So that’s the good news. She observed that many of the cases hailed from states with “discovery rules.” The discovery rule clarifies when the clock starts ticking to file a product liability case. It typically means that the clock cannot start ticking against the injured person until the person discovers (or reasonably should have discovered) that he or she was injured by a defective product. As I’ve discussed, determining that moment of “discovery” can be difficult for medical devices.

With regard to Smith & Nephew’s motions to dismiss, Judge Blake dismissed a few cases that were clearly outside the time-limits for bringing a case in that plaintiff’s home state, but kept most of the cases where discovery rules applied or where there was some ambiguity about the passage of time.

As you can imagine, defense attorneys press these statutes of limitation defenses aggressively, so be careful. The takeaway: do not “sleep on your rights.” If you think you have been harmed by a defective product, contact an attorney immediately.

Smith & Nephew Mediation Scheduled for January 30, 2019

Smith & Nephew has not yet made any serious effort to settle these cases, although the company initially expressed some willingness to discuss settlement of the THA/R3 track cases. Judge Blake ordered mediation to be held on January 30, 2019. Smith & Nephew is asking all THA/R3 Track plaintiffs to produce relevant medical records so that the company can properly evaluate each of the THA/R3 cases. If mediation does not lead to a global settlement of these cases, discovery will continue, including depositions to be taken in the coming months.

Trial Dates Scheduled

The BHR Track cases have trial dates set for March 2020. If THA/R3 mediation is not successful at the end of this month, the plaintiffs’ team will ask Judge Blake for a trial date to be scheduled shortly after the trial for the BHR Track cases.

If you were implanted with a Smith & Nephew artificial hip (of any kind) and are suffering problems, give me a call to discuss further: (919) 830-5602.

Note: All information in this post was distilled from publicly available information and news sources.