Tort Reform, Bush and the Insurance Industry

Now that Bush has been re-elected, the insurance industry and investors in insurance companies are salivating. Why? It increases pressure to adopt tort reform.

What does tort reform really mean?

There currently are three major proposals being considered by Congress:

1. Class Action Reform. The main thrust of this is to force class action lawsuits above a certain dollar threshold ($5 Million) and class actions involving people from multiple states into Federal Court instead of state courts. The goal is to prevent plaintiff attorneys from filing class actions in state courts that are presumably more plaintiff friendly. My guess: There is a good chance that this will happen.

2. Medical Malpractice Damage Caps. This is something that 27 states have already enacted. Essentially, it limits the amount a medical malpractice victim can be awarded for pain and suffering. One problem with this is that it actually prevents many people from pursuing their legal rights. On the other side, it will not significantly reduce malpractice insurance premiums - and more important, it will have almost no effect on rising health care costs. A classic example of a malpractice victim who this hurts was described in the press a few months ago: An elderly woman in a nursing home in Texas was raped by an individual who had a history of similar incidents. Even though the rape was witnessed by another worker and should have been an open and shut case, the victim's daughter was rejected by ten law firms before finally finding one who would help her. Why such a hard time finding a lawyer. Well, the Texas malpractice caps apply to nursing homes because of a broad definition under the law. Because the victim had no economic damages - no potential to earn an income, the maximum award was $250,000. Since a plaintiff attorney typically has to spend $100,000 or more (covering experts, costs, etc.) just to get to trial, there are few lawyers who are willing to take that big a risk for a relatively small payout. Even if successful, the victim's potential take, after expenses and attorneys' fees was probably no more than $50,000. This is far from the windfall that the advocates of tort reform claim to be trying to prevent. Certainly, this was no frivolous lawsuit.

3. Asbestos Lawsuits. Why is this important - asbestos lawsuits are hurting many big companies. Well, I would argue that asbestos is hurting many hard working Americans who trusted those same companies that asbestos wouldn't hurt them. By the way, the companies knew decades ago that asbestos would cause severe lung damage, yet they continued to use it. Many of these hard working Americans are now in hospitals with a horrific disease called Mesothelioma. Should we prevent these honest people from being compensated for the wrongs done to them by big business?

Who is watching out for the people?

Ban on Imported Canadian Drugs

One wonders how the Bush Administration can continue to justify the ban on re-importing Canadian drugs. Their whole argument is that by allowing the re-importation of Canadian drugs, we are exposing many Americans to potentially harmful substances.

At the same time, the Administration seems to have no trouble allowing giant drug companies like Merck to gain expedited FDA approval of new drugs like Vioxx, then market them directly to consumers with multi-million dollar ad campaigns. Even worse, there seems to be no ability to control the distribution of these drugs after they have been approved even though new data shows alarming side effects - like heart attacks and strokes among Vioxx users.

Who will protect the people?

Defective SUV Still on the Market

The New York Times reported today that General Motors continues to sell its 2004 Saturn Vue SUV despite a recall relating to a defective suspension system. Apparently, the Vue's suspension system collapsed during rollover testing by the government this past summer.

In August, GM voluntarily recalled the VUE to fix the suspension system. However, since then, GM has probably sold more than 10,000 of these cars - many of them without fixing the suspension system.

Now we hear that Congress is considering limiting both medical malpractice and product liability laws.

My question is, who is watching out for the people?

FDA Too Slow to Pull Drugs Like Vioxx and Baycol

The associated press reported today that several new studies found that the FDA and Bayer were too slow to pull the cholesterol-lowering drug Baycol. Baycol was pulled in 2001, but that did not happen until long after results demonstrated Baycol's dangerous side effects.

Testimony in Congress last week (dealing with the Vioxx recall by Merck) indicated that the FDA is not set up to adequately monitor drug studies for dangerous side effects after the drug has been approved.

Now the editors of the Journal of the American Medical Association on Monday recommended the establishment of an independent drug safety review office similar to what had been recommended by Dr. David Graham, the drug safety officer who testified that his concerns about Vioxx had been ignored.

Vioxx

Well, the Vioxx controversy is now about 45-50 days old and it is staying in the news. This week, Congressional hearings took center stage as both the FDA and Merck tried to deflect blame from themselves.

Merck, of course, claims that Vioxx really isn't that bad. Heart attacks, strokes and the like are a constant presence in our society and each Vioxx heart attack or stroke victim has to prove that Vioxx caused his or her heart attack - something Merck believes will be hard to do. Merck further claims that Vioxx actually reduced patient deaths from stomach problems inherent in several other NSAIDs. Interesting that they feel that is a fact, while the problems with Vioxx causation are virtually insurmountable.

The Wall Street Journal - Nov. 1, 2004, indicated that top scientists at Merck were aware of the Vioxx side effects but pressed on to try to get the drug approved anyway. Five years later Vioxx was a $2.5Billion bonanza for Merck. One wonders if they were putting profits ahead of patient safety....

The FDA is also deflecting blame - even though some of their top scientists claim that the FDA system is tilted to try to get fast approval and ignores safety data that arises after approval.

Of course there are many lawyers out there trying to represent victims of Vioxx side effects. The key here is to make sure you find a lawyer or law firm that really knows how to handle complex product liability (pharmaceutical liability) lawsuits. You want one with experience, one that has a history of large multimillion dollar verdicts and settlements. One with the resources to stand up to the big drug companies like Merck.

Here are a couple that I have found that might be a good place to start - at least their web sites indicate that they have the experience and the resources to get results in the Vioxx litigation:

Kline & Specter - http://www.VioxxInjuryFirm.com
Trief & Olk - http://www.nynjvioxxattorneys.com