Lawyers who make you sick

Posted: May 20, 2003 12:00 AM

The American medical system may be the world's best, but don't let that get you down. Our trial lawyers have the answer. They plan on suing the blankety-blank out of the pharmaceutical companies, relieving them of billions of dollars and forcing them, if all goes well, to concentrate on flavored aspirins and fingernail clippers.

Our legal eagles -- "(e)nriched and emboldened," as The New York Times puts it, "after successful fights against asbestos and tobacco companies" -- charge that the drug makers have been concealing dangers they know to exist with medicines like the antidepressant Paxil. These dangers exist because of the makers' affection for profit -- a disgraceful consideration that would never enter a trial lawyer's mind. Naturally.

"In some instances," says the Times, "teams of plaintiffs' lawyers are spending several million dollars preparing cases for trial ... " Drug companies already spend several billions a year defending themselves in court or getting ready to. It can only get costlier, and not just to the pharmaceutical companies, rather, to all who look to the companies for newer, better ways of addressing old ailments. That would be practically all of us -- lawyers included.

The Food and Drug Administration approves for public use such drugs as the companies offer. That is all the help the government can give. For drugs to be approved, drugs must be developed. Before development can take place, there must be painstaking research. And before that? Yes, there must be money. Money is the mainspring of all development. It would seem that only public-spirited plaintiffs' lawyers are immune to its lures. The lavish yachts on which they decompress after taking American companies to the cleaners are surely on loan from grateful civic groups.

Unfortunately, pharmaceutical companies can't practice self-sacrifice on this scale. It takes a long time to develop new drugs. It takes a long time to envision new uses and applications for substances already known. Profits finance this research. Thus, good health rests on the successful pursuit of profit. Name, if you please, one consistently unprofitable pharmaceutical company.

The safety angle is admittedly slippery. The FDA approves drugs for public consumption, yes. From there, the drugs in question enter, theoretically, the physical systems of 200 million-plus Americans. No two of these systems are the same. Unlooked-for side effects must and do occur. Pfizer, for instance, pulled Rezulin from the market due to concerns that it could cause liver damage. Johnson & Johnson's Propulsid, used to treat heartburn, has been associated occasionally with heart problems. We are to brush these matters aside? By no means.

The question is not: Shouldn't drugs be made as safe as possible? Of course they should. The question, rather, is: Can drugs ever be made safe enough to ward off the insinuations of the plaintiffs' lawyers, so ready to claim (if not necessarily believe) the worst about any product marketed by a deep-pockets company? The tobacco and asbestos suits have shown how it works. A lawyer who has picked venue and victims with any care can have the jury eating out of his hand in no time. The more self-styled victims who can be trotted out -- and lawyers have become adept at rounding them up, often using the Internet -- the greater the size of the settlement.

Hard cases make bad law, goes the old legal maxim. They can make bad medicine, also, causing pharmaceutical innovators to pull in their horns, knock off the experimenting and stick with the safe stuff -- the lawyer-immune stuff (if there is any such). Nothing seems likelier to set back medical progress, and hinder drug development, than a raft of lawsuits whose common denominator is the enrichment of the plaintiffs' bar. Sometimes, you wish these fine gentlemen could be forced to swallow their own, as it were, medicine. What about sensible citizens suing the American Trial Lawyers Association for attacking jobs and undermining economic stability?

On second thought, maybe not. What trial lawyer could be induced to file such a sensible pleading?