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Avandia and Obamacare

Saturday, February 20, 2010  |  posted by Hugh Hewitt

The studies reported on in today’s New York Times on the possible connection between Avandia and heart attacks are certain to launch thousands of lawsuits. The opening paragraphs:

Hundreds of people taking Avandia, a controversial diabetes medicine, needlessly suffer heart attacks and heart failure each month, according to confidential government reports that recommend the drug be removed from the market.

The reports, obtained by The New York Times, say that if every diabetic now taking Avandia were instead given a similar pill named Actos, about 500 heart attacks and 300 cases of heart failure would be averted every month because Avandia can hurt the heart. Avandia, intended to treat Type 2 diabetes, is known as rosiglitazone and was linked to 304 deaths during the third quarter of 2009.

If you or a family member has been taking Avandia and suffered a heart attack, this is more than sufficient cause on which to bring a lawsuit for damages. If death resulted for the loved one, a wrongful death suit will follow.

This is not the problem with our tort system. People who are seriously injured ought to be able to quickly recover their losses. As my frequent radio guest, law partner and long-time plaintiff lawyer Joseph Timothy Cook likes to point out (yes, despite my frequent editorials about tort reform, I have a partner who represents plaintiffs) everyone is for tort reform until they or their family member has been injured. So I’ll write it again: If Avandia is really the reason why a patient is injured or dies, then GlaxoSmithKline should be obliged to do the best that can be done vis-a-vis the victims.

The problems with our system –problems left completely unaddressed by Obamacare– are the roulette-like aspects of our tort law, under which thousands of plaintiffs’ lawyers are already racing to attract any and all claims from anyone who thinks they may have taken Avandia and thinks their particular problem is related to it. There are no barriers to entry to the courts other than the willingness of some lawyer somewhere being willing to roll the dice on a contingency basis.

Nor are there many limits on certain types of damages that are subject to wild swings in the eyes of a jury, including punitive damages. Everything depends upon the jurisdiction in which the case is brought.

Again, advocates of tort reform do not argue that the injured should not be compensated. They should be and the courts can be made to work fairly in such settings as mass tort. But right now they do not do so, or at least not very often.

While this legal avalanche begins to slide and then pick up velocity, the pharmaceutical industry will be watching another disaster to its bottom line take shape, with all the consequent side effects on current and future research and development. Costs of all drugs will have to rise to cover the costs associated with all Avandia claims, good and bad. Diabetics will still want relief so the demand won’t slacken for the medicines that will help. Their costs will simply rise. Every dollar paid to victims,non-victims, and the lawyers for both as well as defense counsel will get passed right back to the consumer.

As the hard left edge of the Senate Democrats debate making a run at single payor, ask yourself exactly what that will do to prevent the costs described above from rolling through the system. The answer is nothing.

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