Recently, we received several phone calls from individuals who do not have legal representation. They informed us that Stryker, through its third party administrator Broadspire, is attempting to settle claims arising from the Stryker Rejuvenate or ABG II recall. The settlement process is extremely complicated and full of pot holes. Therefore, we highly recommend you do not settle your case without a lawyer. However, if you decide to go this route, there is a lot you need to know.
In order to settle your case, Stryker will insist that you sign a “release.” A “release” is a formal legal document where you agree to give up all of your rights to sue Stryker for any issues related to your failed hip. It is important to understand that the release will extinguish all your rights; including claims that may arise in the future. For example, if you recently had revision surgery and settle your case and then 6 months from now your revised hip becomes infected, you will have no right to obtain reimbursement. All additional Settlements are final.
This is especially important to know if you recently had revision surgery. You do not want to settle your case until you are fairly confident you have fully recovered from your surgery. This way, you will know the full extent of your damages. However, as noted below, it is critical not to delay too long as this could impact your statute of limitations.
Watch Out for Medicare or Insurance Liens
If you had revision surgery and Medicare or private health insurance paid for any part of your surgery, they will have a “lien” on your case. What this means is that they are entitled to part of your settlement reimbursement for all amounts they paid for your revision surgery and subsequent treatment. In some cases, they can also make claims for future expenses they are likely to incur for your treatment down the road. If you settle your case and do not pay these insurance/Medicare liens, you will be personally liable for the amount of those liens. In many cases, these liens can exceed several hundred thousand dollars!
For example, if you settle your case with Stryker for $225,000 and it turns out that Medicare paid $300,000 for your revision surgery and subsequent treatment, you could be personally liable to Medicare for the entire $225,000. This means that you would end up receiving nothing from your settlement.
Therefore, before reaching any settlement with Stryker it is important to contact Medicare or your insurance carrier to find out how much they are claiming on their lien. This is the only way you will be able to adequately evaluate Stryker’s settlement proposal. Also, once you find out how much your insurance carrier is claiming, it is often possible to negotiate a substantial reduction. Once you agree on a lien amount, it is critical that you obtain something in writing from Medicare or your insurance carrier confirming the amount they are willing to accept to resolve the lien. It is critical that you do all of this before settling your claim with Stryker.
Be Aware of the Statute of Limitations
Every state has a statute of limitations that requires you to file a lawsuit within a certain period of time. In some states that time period is as little as one year. Unfortunately, the time your statute “starts to run” can be very complicated to pinpoint. In some states, it could start running from the date your hip was first installed. While in others, it will not start running until you were advised that your hip was recalled.
However, if you wait too long to settle your case with Stryker or negotiations become extended, it is possible that the statute of limitations could run on your case. Once the statute runs, all of your claims will be extinguished and Stryker has no obligation to pay you anything. Do NOT take solace in that fact that a deal with Stryker “is in the works.” You do not have a deal until a signed settlement agreement from Stryker is in your possession.
How Much Should I Settle My Case For?
This question is extremely difficult to answer. There are many factors evaluating the settlement value of a Stryker Rejuvenate case: your age, the amount of tissue damage caused by the hip, the extent of any complications following revision, whether you have any permanent disabilities resulting from the revision, and the extent of any lost earnings. In other hip litigation, settlement values have ranged from $20,000 to more than a $1,000,000. The primary reason we recommend not settling your own case is that you do NOT know what your case is worth. An experienced attorney in hip litigation will know the value of your case and have an idea how much Stryker is willing to pay to settle your case. Without the knowledge of an attorney, most people will undoubtedly “leave money on the table.” We expect Stryker to negotiate settlements with unrepresented patients.
AN ATTORNEY, NOT STRYKER, WILL LOOK OUT FOR YOUR BEST INTEREST.