Monday, March 09, 2009

The Tyranny of Legalism

Last week I read an AP article about the Supreme Court ruling against Wyeth Pharmaceuticals in favor of Diana Levine. Levine lost part of her right arm when an anti-nausea drug manufactured by Wyeth was administered intravenously.

The article is a great human interest story. Levine was a professional musician that played piano and guitar. Since I have been an amateur piano and guitar player for decades, I immediately identified with Levine. From such a musician’s point of view, there is no amount of money that could adequately compensate for the loss of an arm.

But as I read the article, I was bothered by the seeming lack of negligence on the part of the drug manufacturer. Everyone admits that Wyeth had an explicit bold type warning on the drug that intra-arterial injection would cause gangrene and result in the loss of the limb — a warning that a medical technician ignored.

Clearly the medical technician was negligent in this matter. Levine won her lawsuit against the technician and the hospital. But she also sued the drug manufacturer. A jury awarded her $6.7 million, but Wyeth contested that finding. The Supreme Court ruled 6-3 against Wyeth, saying that compliance with FDA warning rules does not pre-empt state court challenges.

Perhaps Wyeth chose to challenge the suit from a weak angle. But I’m still trying to wrap my head around Wyeth’s supposed negligence. It’s difficult to second guess a jury, but medical malpractice juries are famously easy to push to the side of the injured party. Exactly what was Wyeth supposed to have done in order not to be negligent?

Writing about this ruling, L. Gordon Crovitz says in this WSJ editorial piece, “The simple lesson businesspeople took was that the drug maker could not have done anything to avoid being sued.” With this ruling, the Supreme Court has effectively erected an impossible standard for businesses.

What kind of fallout can be expected from this new unattainable obligation? For starters, the bar for suing any manufacturer has been lowered. We shouldn’t fool ourselves into thinking that this will apply only to pharmaceuticals.

This means that manufacturers will increase their defensive practices. They will factor those anticipated costs into their products, making their businesses less flexible and less productive. This will raise the cost of everything for everyone. Manufacturers that can’t afford this new burden will go out of business. But trial lawyers will make a lot more money.

What this does not mean is that products will actually become safer. Rather, manufacturers will seek new ways to insulate themselves from lawsuits as much as possible. Today’s ridiculous product warning labels will now become even more bizarre, as manufacturers begin to include specific warnings for every state. Anything we buy will come with more paper and small print, but none of this will make any of us safer.

Crovitz tries to paint this legal finding as one of the final hurrahs for the Luddites of an antiquated legal system that must inevitably give way to a model suited to the Information Age. Maybe. But our outdated legal system has a far better funded constituency than did Britain’s 19th Century textile artisans. Trial lawyers are one of the wealthiest groups in the nation. Even in the current recession, theirs is still a significant growth industry.

Each of us deserves to be protected from unscrupulous and/or negligently shoddy manufacturers. But there is a point where legal zeal exceeds common sense. When that happens, it means less liberty for everyone.

1 comment:

Jim Snowden said...

I loved your Blog entry. I very much fear that we are heading down a highway to "heck" with the twin drive to the "nanny state" and attempts by our new President to reverse the ruthless rules of economics to refashion our society.

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Warm Regards...