| Ilena Rose 2005-01-27, 8:50 am |
| http://www.theage.com.au/news/Natio...l?oneclick=true
Implant victims' payout attacked
By Nassim Khadem, Angela Cuming
January 23, 2005
Michelle Balaam, who has just received a compensation cheque from
Corning, at her Mount Martha home.
Photo: Ken Irwin
Some Australian women, injured when faulty silicone breast implants
ruptured, will only receive a few hundred dollars compensation.
After a 10-year battle about 1000 Australians - about 150 of them in
Victoria - have started receiving compensation from a 2003 settlement
reached with the American silicone giant Dow Corning.
Some are looking at a few hundred dollars while others are in line for
$100,000.
Others who could not prove the implants were made by Dow Corning, or
that Dow Corning had supplied some of the ingredients for an implant
made by another company, will get nothing.
The $13 million class action was handled by lawyers Maurice Blackburn
Cashman.
Dr Peter Cashman, who represented the women, said the money Dow
Corning handed over was "totally inadequate".
"Not that any amount would compensate," he said. "But it is not
enough, they should have been entitled to more.
"This has been an ongoing saga and unfortunately it doesn't have a
happy ending."
Adding to the victims' grief is the knowledge that they were only
entitled to a percentage of the compensation Dow Corning gave to
Americans.
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AdvertisementWomen living outside the US received 60 per cent of the
compensation offered to Americans
About 3000 Australian women sued Dow Corning for $32 million in a
separate class action handled by lawyers Slater and Gordon in 2002.
Dr Cashman said his firm did not settle at the time and continued to
battle on the legal issue of the discriminatory treatment of
Australian women. But after several unsuccessful appeals in the
American courts, he settled in early 2003.
"One of the main reasons against us was the fact that other foreign
claimants had agreed to accept lesser payments," Dr Cashman said.
"I am not being critical of them, they made their own judgement, but
the reality was that a price had been set for the foreign claims by a
number of foreign lawyers, and the US courts were not very sympathetic
to the plight of foreign women."
That inadequacy was highlighted by a 1995 case when a Nevada jury
ruled the Dow Chemical Company, which part owns Dow Corning, pay
Charlotte Mahlum about $A5 million because of faulty implants.
Dr Cashman said that in hindsight he would have handled the class
action differently. "I think the tactical mistake we made was allowing
these cases to be sucked into the juggernaut of the United States," he
said. "We should have just pursued it in Australia where you have
Australian courts and judges a little bit more sympathetic to the
plight of Australian women."
Dr Cashman said many could not prove the implants were made by Dow
Corning because of inadequate records.
"The doctors either didn't keep a record or the doctor's records were
destroyed or . . . the records did not say what type of implant it
was," he said. "In a lot of cases we actually had the implant
medically examined and then subject to expert review to establish
whether or not they were Dow Corning implants."
There are 161 women whose claims are still unresolved.
These claims have been rejected, but the women may use arbitration to
appeal.
Funds are being held in a trust to pay the claims if they are
eventually accepted.
If the appeals fail, the money will be distributed among the 900 who
have already received payouts.
Maurice Blackburn Cashman still has 227 clients with claims in the US
bankruptcy proceedings, which will be dealt with by claims
administrators.
Dow Corning filed for bankruptcy in May 1995. Some women have chosen
to have their claims reviewed in the bankruptcy proceedings rather
than through the settlement process negotiated by lawyers and Dow
Corning.
These claims could take 15 years to settle. But, if successful, they
would entitle the women to ongoing payments rather than the lump sum.
Michelle Balaam, 38, Mount Martha
Received: $18,000
For 17 years of pain and suffering, Michelle Balaam says she expected
much more than than $18,000, which she says will not cover her medical
expenses.
"It's years of mental anguish that we are talking about," she said.
"That amount just doesn't cover what you go through."
Ms Balaam was 21 when she got her implants. Twelve months after the
surgery, the silicone implant in her right breast hardened and
eventually ruptured, so she had to have them removed.
In 1994 Ms Balaam got breast cancer. There was no history of breast
cancer in her family. "There's always going to be a question in the
back of my mind, 'did this implant actually contribute to it?' "
Robin Phelps, 50, Caramut (Western District)
Received: Almost $25,000
Half a dozen operations later, Robin Phelps says $25,000 does not
compensate her for 12 years of mental and physical hardship.
"I have had six operations to have them replaced because they kept
leaking and going like ice blocks and causing lots of pain," she said,
"so much grief, pain and suffering."
Paula Smith, 54, Newcastle, NSW
Received: $6500
Paula Smith says she has suffered 25 years of agony and permanent
deformity allegedly caused by 10 ruptured implants after she lost both
breasts to cancer.
Mrs Smith was given the first set of implants when she was 27. She had
three sets of implants in 10 days. These and two more sets deflated.
Breasts constructed from her back muscles were rejected and she
developed gangrene.
Gail Krikorian, 38, Botany, NSW
Received: Undisclosed amount
In the early 1980s, Gail Krikorian, then in her 20s, could lift her
arms up and two sets of breasts would appear - her natural ones and
her silicone implants. The implants "were not placed on the muscle
properly, and if I lifted my arms up, there were four of them".
Mrs Krikorian ended up having five operations and four sets of
implants.
"Really, I am one of the lucky ones," she said. "You see some woman
with nothing left. I got off very easy. Other women's lives have been
destroyed."
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www.BreastImplantAwareness.org
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