Lawrence Diller M.D.

The Last Normal Child

The Supreme Court Judgment Against Wyeth Is HUGE!

The People 1, Big Business 0, in the Supreme Court

Posted Mar 05, 2009

The Supreme Court yesterday gave one to the people at the expense of corporate power.  In a 6-3 decision, the Court upheld a Vermont Supreme Court verdict awarding a large judgment to a woman who lost an arm against the Wyeth pharmaceutical company.  Wyeth had appealed the decision on the basis that once the Food and Drug Administration approved a drug, a company was shielded from individual suits.  For those who are concerned about corporate power and health care (I for one feel that for profit drugs companies are single biggest influence in the way our society -- read doctors, parents, teacher and even kids -- thinks about normal and abnormal behavior in children and how to treat them -- read drugs) the possibility, that the right to sue a drug company over an FDA approved medication be eliminated, was frightening.

And there were reasons to be frightened.  Earlier in this term the Court had ruled against a plaintiff who sued over a medical device saying that the right to sue was explicitly denied in the law governing the approval of medical devices.  It was over this "technicality" that the justices decided in favor of the plaintiff in this drug case.  In this current case there is no explicit waiver of the right to sue in the approval of a drug by the FDA and the justices felt to expand this prohibition abrogated too many rights of the patient.  Even Clarence Thomas who rarely votes against his "twin," Antonin Scalia, decided to side with the majority making the decision much more impressive at 6-3 instead of 5-4.

As an M.D. I was never a big fan of trial lawyers but in my dealings with the drug industry over the last two decades I've seen the extent of their power in my field of behavioral-developmental pediatrics in an unchecked, pro-business, post Reagan/Bushes environment.  There's lots of reasons why a brain based view of behavior has gained ascendancy in the American consciousness, but from the sponsoring of medical research and medical education, to direct to consumer advertising and to free samples of drugs, the drug companies in my mind have been the single bigger factor promoting biological psychiatry.  Drugs do work (at least short term) and can be a very useful intervention.  I prescribe medication every day, but I remain opposed on both medical and ethical grounds to a medication first or medication very quickly approach to children's emotional, behavioral and performance problems.  I feel like I've been working on an increasingly steep Sisyphisian slope for the last fifteen years.

So in America where the only way anything happens is if someone can make some money, the trial lawyers have been, in my opinion, the only check against increasing corporate power in our society.  Supervising government agencies have been castrated during Republican administrations.  Most politicians have huge contributions coming from industry lobbyists (Charles Grassley, the senator from Iowa stirring up "s" for academic researchers taking money from drug companies is a startling exception).

Using suits as a check against corporations is not a particularly efficient method (the lawyers take typical from thirty to fifty per cent of settlements) but taking on a Fortune 500 company with all its resources is a very daunting proposition.  Many of the lawyers who have taken on the drug companies have had to borrow and scrape.  I know one guy in the SSRI and pediatric depression suits who was about to be thrown out of his home because he had second mortgaged it to keep a suit going.  I remember when the FDA added the black box warning to the SSRI label, he and his staff danced on the tables of a restaurant, feeling elated and saved.

So here I am a doc who's come to defend trial lawyers and the right to sue.  I know they can also sue me for malpractice and have no doubt added to the cost of practicing defensive medicine.  But doctors also have a great deal of power in the society and without the check of suit, their fraternity often bands together to protect one of their own.  Anyway, the Supreme Court's decision yesterday protected a very important right for the American people in keeping a balance between the profits of industry and the ethical health of our country.

About the Author

Lawrence Diller, M.D., practices behavioral developmental pediatrics and is on the faculty at UCSF Medical School. His books included Running on Ritalin and The Last Normal Child.

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