Thursday, March 12, 2009

Herrmann on Levine in Chicago Tribune

We're delighted when the mainstream media occasionally picks up on things that we say here.

But we've noted before how silly it seems to echo at our little blog things that we've previously said in prominent papers.


Anonymous said...

"Levine had already obtained compensation for her injury—her $700,000 malpractice settlement—from her health-care providers. She needed no more from a second lawsuit."

Counselor, would you give up your right arm for $700,000? That's less than one year of your firm partnership's profit sharing. I would imagine $700,000 was the prescriber's policy limits and that's not enough to compensate someone who makes a living with their hands.

"Moreover, as a matter of policy, the warnings on drug labels should be evaluated by an expert federal agency—the FDA—rather than by lay juries. The FDA has medical doctors, statisticians and pharmacists on staff. Those experts can weigh the risks and benefits of drugs from the perspective of society as a whole. They can consider the many unknown patients who are helped by a drug, rather than focusing on the one who has been hurt. As a matter of institutional competence, the FDA is better able to dictate the terms of warning labels than is a jury of lay people with no special training, sitting in the presence of an injured patient."

Some of the most laughable content on the internet this morning. Big pharma (i.e. your clients) draft the labels and use their connections at the FDA to get the label through and to mitigate the FDA's recommended changes. Yet, somehow, you think that an underfunded, understaffed, and heavily infiltrated federal agency trumps a citizen's 7th Amendment right.

"Finally, if juries can hold manufacturers liable for giving too few warnings, then companies will naturally err on the side of caution and give too many."

Your clients most often get in trouble when they don't warn against the side effects they know about and choose to hide - whether it's PPH or diabetes.

"In the context of prescription drugs, however, overwarning can be a matter of life and death. If an overabundance of warnings deters physicians from prescribing necessary drugs (for fear of liability) or deters patients from taking them (for fear of side effects), then sick people may not obtain necessary treatment."

But isn't that the basis for your learned intermediary defense? That a doctor is supposed to use his medical education and expertise to do a risk-benefit analysis when prescribing a medicine? And that that analysis obviates any obligation you have to warn the patients?

"The story of Diana Levine is a personal tragedy, but the story of Wyeth vs. Levine may well be a tragedy for patients everywhere."

What's a tragedy is the intellectual dishonesty that comes from someone who writes such op-ed pieces and doesn't fully disclose who he is or who he represents. To reward you, maybe a Wyeth detailer will stop by your office today, cater lunch from Black-Eyed Pea, and leave your staff some pens, notepads, and stuffed animals for the kids. "Ask your doctor if Toxikill is right for you..."

Quit drinking the Kool Aid.

Anonymous said...

You stole my point. Would Mr. Hermann trade his arm--or one of his kid's-- for $700,000? Don't think so. You can argue the policy arguments of pre-emption till the cows come home, but it's insulting to suggest that that figure is "enough."

It's so easy for the tort reformers (and pre-emption is just another form of it) to argue that "others," i.e. people other than themselves, should have their rights limited or diluted. At the end of the day, it's like those who advocate for more prisons. Sounds great until you learn the prison is going in your backyard; then is doesn't sound so good.