October 04, 2004

Get Out The Gimpy Vote

Yesterday's OpinionJournal - Best of the Web pointed out that President Bush had pulled ahead of Senator Kerry in a poll of "Americans with disabilities who are likely to vote in November's election." Kerry had a double-digit lead a month ago but was up 48-46 this week.

James Taranto suggested some reasons: general disrespect in 1971 saying "If I take some crippled veterans down to the White House and we chain ourselves to the gates, will we get coverage?" and his abominable usage of the patriot Senator Max Cleland to deliver a letter to the President in Crawford. Taranto posits "Perhaps Americans with disabilities don't take kindly to Kerry's use, throughout his career, of 'crippled veterans' as political props."

As a valid holder of a handicapped parking permit, let me chime in. A Kerry administration would demolish the private pharmaceutical industry. He's got Michael J. Fox stumping for him on the Stem-Cell debate but as I have blogged before, his policies will chase capital out of the sector.

The Dems love to rail against "big drug profits" but the sector trades at a lower multiple than any technology sector. Look at what Vioxx has done to Merck's valuation.

Maybe some of these folks, like me, have decided they don't need a Vice President who'll "fight the drug companies!" We would be best served by someone who would help them with tort reform -- or at the very least stay the hell out of the way.

UPDATE: More on this here: "The Profit Motive and Medical Research"

Posted by jk at October 4, 2004 02:44 PM

Johngalt sez: "Stay the hell out of the way!"

Posted by: johngalt at October 4, 2004 04:21 PM

Good as a general rule but my other choice was tort reform. I am going to try and write a whole piece about Merck and Vioxx (work? what's that?)

We are about to lose one our great drug companies to bankruptcy inducing lawsuits. I don't know all the particulars but the company was seemingly not negligent, it pulled the product voluntarily.

Now every person with arthritis and heart disease (let's be honest, that is demographically not a coincidental intersection of sets) will be entitled to millions. The next John Edwardses are lining up for their shot.

And the current Senator Edwards tells the seniors in Florida that he’ll fight the drug companies.

Again, self-servingly perhaps, these people may be developing the cure for my Multiple Sclerosis -- I really don't want my government "fighting" them.

Posted by: jk at October 5, 2004 08:29 AM

Big time, kids! Berkeley Square Blog made WSJ's Best Of The Web with this post!

Posted by: jk at October 5, 2004 04:21 PM

One might think that the Terri Schiavo case being back in the news could influence a couple of people, as discussed here.

At least some disabled people might be worried by a party which focuses on the right of people to kill their incapacitated relatives.

Posted by: John Thacker at October 5, 2004 10:41 PM

Removing life support is not equivalent to killing. Let's talk about forcing individuals to pay for expensive and hopeless medical care for relatives merely because they have the means to do so. You can bet that if Mr. Schiavo hadn't won a multimillion dollar judgement the hospital would offer a more pessimistic prognosis on the comatose patient.

Posted by: johngalt at October 6, 2004 12:25 AM

John Edwards was not a class-action lawyer.

Merck pulled voluntarily, but perhaps about two years later than it should have. Drug companies have tremendous shields in the tort restatements against being sued for side effects - can you name another consumer product that can harm or kill you while you use it properly, where you cannot sue the manufacturer or claim ANY compensation, provided adequate warning was provided? The warning doesn't even have to be to the patient in many cases - just the doctors. Don't get me wrong - this shield is not a bad thing, since there would be no drugs on the market otherwise. But it places a big burden of vigilance on pharma. I don't see any problem with finding out if Merck breached that burden. It's certainly happened before. Merck isn't going anywhere - if Phen-fen didn't kill a big pharma company, nothing will. The negligence in that case was unbelievable.

Posted by: BobK at October 6, 2004 08:24 AM

BobK, thanks for the comments.

I am admittedly ill qualified to vouch for the negligence of Merck. Perhaps they will be found culpable of delaying. Without willful, mens rea negligence, my inclination is to defend Merck. Vioxx provided quality of life for a long time to a lot of people. The drug passed all government trials and requirements. I have a hard time penalizing a company for that, even if the product turns out to be faulty.

No, they'll probably not be bankrupt -- but their valuation went down 40%, supporting my view that there are plenty of things to chase capital out of the p h a r m aceutical sector -- right at a time when I need investment maximized.

Posted by: jk at October 6, 2004 11:30 AM

John Thacker, thanks for your comment.

We did not discuss Terri Schiavo on this Blog. I am going to have to side with you. I don't know how much that has affected voting, but I think it's another good reason to vote GOP.

Johngalt, I am the last guy to claim that every medical possibility should be exercised, but I think the Schiavo case is a clear case of a family member's wanting to lose a burden, over the objection of physicians.

Posted by: jk at October 6, 2004 11:37 AM

I have no objection to judgments against companies who have committed fraud or witheld information about the risks of their products. The problem comes when emotional juries find fault and award punitive damages in cases where known or predictable side effects manifest themselves. Life is risky folks, and individuals have to weigh the risks of using some pharma_ceutical against not using it. If someone is willing to try helping you save your life and you lose an arm in the process then thank him for the fact that you did NOT lose both arms, both legs, and everything in between.

Posted by: johngalt at October 6, 2004 11:42 AM

So because you, or some arbitrary collection of doctors, or the government, think this is a "clear case" of a family member wanting to lose a burden we will use the force of government to maintain that burden?

We give more benefit of the doubt than that to admitted mass murderers. Not to mention the principles of individual liberty and right to self-direction of one's property (his money, not his spouse.)

In the absence of a living will an individual's spouse is her legal guardian. If you want the law to read that guardianship is joint between a person's spouse and parents then you'll have to lobby for a change in the law. While you're at it, make sure the spouse has equal right to spend the parents' money as they do his.

Whatever happened to mercy, anyway? Let the poor woman die in peace, like all the indigent coma patients do uneventfully, every day.

Posted by: johngalt at October 6, 2004 12:12 PM

Johngalt wrote: "find fault and award punitive damages in cases where known or predictable side effects manifest themselves"

Those are exactly the kind of cases that the Restatement of Torts shields drug companies against. The only actions that will even make it to trial are cases where there was inadequate warning for a "known or predictable" side-effect, or some kind of fraud, like marketing a drug for an unapproved use, or failing to inform the FDA of safety issues, both of which were present with Phen-fen. If someone dies from a side-effect, and the label (not the bottle label) has a warning that this side-effect has been noted (usually without "known causal association") then the patient (or patient's family) has no claim, and there will be no case.

Interestingly, there is a no-fault type of compensation available for vaccine injuries, even well-recognized ones (VICP). It works on a sliding-scale of severity vs compensation. Some have proposed a similar scheme for drugs as well. It's administered by HHS, DOJ, and the Federal Courts. http://www.hrsa.gov/osp/vicp/INDEX.HTM

Posted by: BobK at October 6, 2004 02:12 PM

Thanks BobK but I'm not a lawyer and despite a brief google search for 'restatement of torts' I still don't think I understand if this rule you described is in place or proposed. My initial impression of the torts system is that it follows in the tradition of (or served as template for) the rules and regs of the IRS.

I am simply applying a pair of philosophical principles: personal responsibility for one's own actions and assumption of liability through contractual use (of a product or service.)

The VICP program you refer to looks like another form of the unemployment insur_ance program that attempts to ensure a group of people against 'acts of God' by imposing premium costs upon others. The justification is that they would pay through law suits anyway so they might as well go along. But a legal judgment that holds one party liable for an 'act of God' against another party merely because they crossed paths somewhere is immoral and contrary to the principles of America's founding.

Posted by: johngalt at October 6, 2004 05:11 PM

Regarding the VICP - It exists because government policy at all levels strongly encourages, if not mandates, the use of vaccines by everyone, with rare religious excemptions. If you get a prescription from a physician for a drug, it is entirely your personal responsibility to get it filled or not, as well as dealing with any side effects. The government has no interest in whether you get that prescription filled or not. However, since government policy is so strongly in favor of vaccination, there seemed an ethical imperative to compensate those who suffered some damage. Perhaps you could consider it a form of compensation for a "taking" under the 5th or 14th amendment. Goverment policy took your health or life, and therefore you should be compensated.

Regarding torts, I should have provided a reference to the restatement - sorry. The 2nd restatement was written in 1964, and has been adapted in whole or part by most state courts. Section 402A comment k discusses "unavoidably unsafe products" and specifically discusses drugs. For some people, a drug will be dangerous or lethal, without any way of knowing beforehand. The restatement says that such a product is not defective, provided it is "properly prepared, and accompanied by proper directions and warnings." A 3rd restatement, written in the late 90s is being considered by many courts, and it contains a similar exemption.

On a personal note, I used to answer the consumer phone line for a big pharma company. Occasionally, I got a call from someone who was hospitalized due to a rare reaction to one of our products. More rarely, I got a call from a relative of someone who died from an effect that was almost certainly caused by our product. Because we sell products for severe diseases, the risk/benefit ratio is upheld even with the occasional death. It was a miserable job - people wanted to know how the company would pay their hospital bills, and my job was to say "I'm sorry, there's nothing we can do." Patients were quite shocked, because our modern consumer society is not used to hearing something like that. A company selling just about any other product would be obliged to do something. After telling them no, then I was required by law to get as much information from them regarding the side effect, so I could make a report for the FDA, or our internal safety database. That was a hoot. I was screamed at, called a murderer, and then I had to say, "May I ask you a few questions regarding this experience?"

Posted by: BobK at October 7, 2004 07:37 AM
| What do you think? [13]