Immunity for Vioxx Makers and Guidant Execs?

The Dirty Little Secret About the U.S. House Medical Malpractice Bill

Hidden in the bill that is being falsely advertised as malpractice insurance relief for doctors are sweet product liability protections for the drug industry: Sweeping immunities that will make it impossible for people injured or killed by unsafe drugs and products—like Vioxx and Guidant's heart device—to hold manufacturers accountable.

Specifically, the Bill Protects Drug and Medical Device Makers By:

Capping damages for any injury, or even death, at $250,000

• No matter how serious the injury it causes, and no matter how negligent its misconduct, companies like Merck and Guidant will never have to pay more than $250,000 in compensation for noneconomic loss to patients and families who are injured or killed by defective drugs. Noneconomic damages are the only compensation for the injury itself, as opposed to reimbursement of out of pocket expenses.
  
  
• Non-economic damages compensate people for devastating injury or loss, such as having to live the rest of one's life in a wheelchair, or for the loss of fertility, or for excruciating and chronic pain.
  
  
• For people with low incomes, like stay-at-home moms, children, and seniors, noneconomic damages are often the only way to be fairly compensated for devastating injury.

Under H.R. 5, drug companies will keep their profits while injured people are denied justice.

Shielding pharmaceuticals from punitive damages

• Punitive damages are intended to punish companies when they put Americans at risk by marketing a product they know to be unsafe.
  
  
• This bill ensures that except in rare instances, drug companies will never be subject to punitive damages because the bill requires an injured person to prove that a defendant intended to harm that particular person, an impossible standard to prove against a drug company that sells to millions of consumers.
  
  
• It also specifically prohibits punitive damages for FDA-approved products. Amazingly, it doesn't stop there. It also gives immunity to drug makers for many drugs and devices that are not FDA-approved!
  
  
• Under H.R. 5, the only way to recover punitive damages against a drug company is to prove that it knowingly lied to the F.D.A. and even then, a plaintiff would also have to meet a heightened standard of proof. Even in the very rare case in which a patient meets this huge burden, the bill still caps punitive damages at $250,000 or two times the amount of economic damages- no matter how egregious the misconduct.

H.R. 5 removes all incentives for safety, eliminates punishment for misconduct and leaves the public's welfare in the hands of the drug industry.

What This Means for Consumers:

• Without the threat of full liability—especially liability for punitive damages—there are no financial disincentives for keeping profitable but dangerous, even deadly drugs and medical devices off the market.
  
  
• H.R. 5 forces consumers to accept a Washington-knows-best, one-size-fits-all limit on the compensation a jury would be allowed to provide for an injury caused by a defective drug or device.
  

July 21, 2005