Wednesday, February 23, 2011

The sticking point in this whole vaccine mess.

In case you hadn't heard, the U.S. Supreme Court on Tuesday voted 6-2 to disallow lawsuits brought by parents against the manufacturers of childhood vaccines. In recent years, parents have blamed vaccines for causing any number of childhood maladies, principally including, of course, autism. The Court cited a special tribunal set up by Congress in 1986 as the consumer's only recourse in cases where parents theorize a link between vaccination and illness. (In related news, the trial lawyers' association, which whimsically refers to itself as the American Association for Justice, has called an emergency meeting to discuss whether to recommend a mass suicide on the part of its membership.)

All kidding aside, this is a tough area. On the one hand, we don't want to shield manufacturers that knowingly distribute dangerous products. On the other hand, I have long felt that in medicine, product liability needs to be handled a bit differently than it is in the rest of consumer society. In medicine, progress is always g
oing to be a matter of two-steps-forward, one-step-back, and we need to do something to prevent the threat of litigation from quite literally driving the medical-research vanguard out of the medical-research business. Things have only gotten worse since the alt-med community, led by such high-profile spokesmodels as Jenny McCarthy and Suzanne Somers, began muddying what should have been a scientific discussion with all sorts of New Age-inflected paranoia. (They're aided and abetted by "public interest" groups that run ads like the one shown above.) Even worse is that in making their cases, these celebs are often able to invoke opportunistic elements from within the medical community itselflike the recently defrocked Andrew Wakefieldwho hope to ride the tide of one of these fringe causes to their own special brand of celebrity. (This in turn is why "well-meaning" media stars like Oprah Winfrey are so damn dangerous ... and also why I place such emphasis on science and rationality. But let's not revisit that right now.)

The simple truth is that when you're dabbling in areas like medicine, there is going to b
e a certain failure rate: A certain percentage of people who take a drug that is meant to help them will die instead, either of side effects orthis is importanteffects directly related to the drug's intended action. Society cannot abide a situation where every time that happens, every time one of those failures occurs, some trial lawyer immediately starts calculating the possible payout in a malpractice/product-liability lawsuit. Do you know what the staple courtroom tactic is among plaintiff's attorneys nowadays? They take a drug or medical-equipment manufacturer's annual profit (which is easy enough to find inasmuch as most of these companies are publicly held and must report their finances to the SEC), then they go in front of a jury and tearfully argue that "you must knock a year of profit off their balance sheet in order to 'send them a message'! You must tell them that they cannot kill people with impunity!" In too many cases the jurors go along with it. They're human beings, after all, and they've just heard weeks' worth of heart-rending testimony about other human beings who have suffered unimaginably; they've heard about the impoverished wife and crying children left behind. Or maybe they've had to bite their lip each day as a grievously handicapped person, after being wheeled dramatically into court, then sat there with obvious brain damage, making strange noises and dribbling a constant stream of spittle as a backdrop to the proceedings.

As one of the Supremes noted in explaining his vote, it doesn't take too many of the resulting blockbuster verdict
s to drive a company out of business; it's just not worth the risk. Investors, too, can make a lot more money with a lot less downside by putting their funds into a new kind of Frisbee or Pet Rock. And once all the vaccine companies have exited the sector, or the remaining company or two decide that they need to charge $5000-a-dose in order to set aside a war chest for that inevitable day of reckoning ... what then?

The rebuttal I most often hear is: But the companies LIE about
their studies! They cover up the risks! Why, look at Vioxx! Nobody wants to defend purposeful corporate mendacity in matters of life and death, and the Vioxx example is a troubling one.

Then again, if drug manufacturers knew that they could be honest about their drugs without penalty, would we even be having this discussion?


Tyro said...

A major missing point is that there is already a system in place to provide compensation for any injuries which might, conceivably result from immunizations. The standard of proof is very low, much lower than in any court, and is there to ensure that there is still a balance between the public good and individual rights and safety.

As you point out, immunizations have a low profit potential and are provided as a major public good so even a small number of lawsuits (no matter the supporting evidence) could make it unprofitable for companies to manufacture them. This system ensures we get widely-available vaccines at a low cost while still providing compensation for even illusory injuries.

Steve Salerno said...

Thanks, Tyro, for making those points.

I also want to note that I haven't forgotten about that whole quantum's just that pressing matters have, well, pressed. I'm sure we'll talk again.

Tyro said...

Ha! No worries, no hurries. Unlike vaccines, quantum science is thriving and far from being suppressed, quacks like Chopra are doing what they can to promote it. Not that the science or public understanding is improved by this of course, but it is still better than lawsuits. I think that means it's a fun topic to chat about with friends and always interesting to study and discuss, but absolutely not urgent or even important.

Thinking of the vaccine compensation, I didn't realize this before by Canada and Russia are the only G8 countries without a public vaccine compensation system. Dang, we Canucks blew it here, I think this is one place where the American system is clearly superior. I think I'll have a little salk.