Sunday, September 21, 2008

Another attempt by lawyers to get around tort limits on medical malpractice cases

This is getting real old, but the American trial bar is once again attempting to establish a game plan for circumventing liability protection that the FDA grants drug and device manufacturers after going thru the FDA approval process. An important legal precedent was upheld last winter which I wrote about in a post "Trial lawyers' ability to second guess the FDA on medical devices neutered" which refused a plaintiff's motion to allow layperson juries to essentially second guess the proceedings of expert FDA panels on medical devices. Medicines curently do not have that same level of insulation, and trial lawyers are contributing in record numbers to the Democrats for the fall election expecting favorable amendments to the law allowing expanded liability.

In a New York Times story this week, "Drug Label, Maimed Patient and Crucial Test for Justices" the case of a patient who had an inadvertent injection by a allied health provider (not a doctor)of a widely used anti-nausea medication (phenergan) into an artery in her hand and eventually suffered an amputation as a result of complications. This drug has been used for decades, and is both safe and cheap. The manufacturer of the drug is essentially being sued for a labeling issue where they claim that warnings about her particular complication were not prominent enough.

This type of action is embarrassing for our legal system, and demonstrates the great American legal tradition of finding the deepest pocket and suing the hell out of it. In this instance, the medical center already settled with this patient, but they're going for the big $$$$. While this individual had a terrible thing happen, it's not even clear that true malpractice even happened. Fines and putative damages on industry in these cases should be paid to the feds rather then individuals so as to remove the financial incentive for these ridiculous cases beyond economic damages.


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