Corp Reform - Not Tort Reform

Jack Thompson - Good Christian, or The Antichrist?

I think I read something somewhere about pride not being a good Christian trait.  Keep that in mind as you read Jack Thompson's crazy lawsuit.  Surely Jesus wouldn't approve of Thompson's constant back-patting and ego-stroking.

One thing I would note: In the above complaint, Thompson brags dozens of times that his faith motivates him to file baseless lawsuits, endure death threat, spend his own money, and crusade for others on the behalf of Jesus.

But why isn't his faith strong enough to force him to change his telephone number?

"John B. Thompson, Attorney
Plaintiff and Counsel, Florida Bar #231665
*Removed by request of Jack Thompson*
305-666-****  Removed by request of Jack Thompson"

On that note, I think I'm going to go play some Doom 3 in honor of Jack Thompson.  You know, isn't it also ironic that such a "Good Christian" is so upset about a game that's about going to Hell and killing demons?

Technorati tags: Jack Thompson, Satan, Antichrist, 666, nutjob, Kotaku, Gawker Media, irony, Doom 3

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Don't blame lawyers for the lack of new vaccines - blame the free market

It's not uncommon to hear corporate shills and other tort "reform" advocates claim that the reason we don't have more vaccines is because of the threat of litigation.  Like most reform claims, this one isn't based on facts.

"Simply stated, the reason is limited profit and large risk. At best, vaccines bring in $6 billion worth of revenues, about 1.5% of the current total annual pharmaceutical market worldwide. The market is splintered among more than a dozen pediatric vaccines and another dozen or so for travelers, other at-risk individuals, and the military. As a result, the market for any given vaccine is substantially below the $500 million per year threshold that a pharmaceutical company considers as a viable product to develop.

While companies may start to see an expanded return on R&D investments for certain products due to the over-the-counter market, that is not currently possible for vaccines due to requirements for parental administration (except for some oral and nasal) and the requirement for a "cold-chain" of most vaccines due to stability issues. Thus, the current average cost of bringing a vaccine to market is larger than can be borne by the market for most of the current vaccines. Although there are some vaccines which have the potential for a greater than $1 billion dollar market (e.g., hepatitis B virus, human papilloma virus), the total vaccine market is so limited that the required return on investment for commercial pharmaceutical and biotech companies does not justify investment in vaccine development."  (Emphasis added.)

Source: The Scientist : The Vaccine Conundrum

Does the tort system deter the development of vaccines?  Perhaps to some extent.  But the real deterrent must be the fact that there isn't enough demand for vaccines for them to be profitable!  

The authors make several suggestions on how to bridge the funding gap so as to encourage the development of new vaccines.  That pharmaceuticals are busy pumping out weight loss and impotence drugs instead of developing life saving vaccines would make Jonas Salk roll over in his grave.

Technorati tags: Dan Zimmerman, Ken Rosenthal, Eyal Talor, Cel-Sci, vaccines, tort reform, pharmaceuticals

I propose a different settlement

Jurist discusses the settlement between "lawyer" Jack Thompson and Take-Two Interactive:

Video game publisher Take-Two Interactive [corporate website] reached a settlement on Thursday with anti-game activist lawyer Jack Thompson. Take-Two agreed to drop a contempt of court charge against Thompson stemming from a prior legal battle [GamePolitics.com report] over the video game Bully.

Source: JURIST - Paper Chase: Take Two, Thompson settle Bully, GTA4 disputes

I have a different idea for a settlement that involves my foot and Thompson's ass.  Nutjobs like him have no business practicing law, and it's because of nutjobs like him that lawyers have such a bad rap. 

Technorati tags: Jack Thompson, nutjob, Take Two Interactive, Bully, Jurist

You Say "Defensive Medicine," I say "Second Opinion."

Walter Olson quotes Charity Doc's post about problems with the health system.  Surprisingly, Charity Doc considers the following to be defensive medicine.

spread[ing] the liability by consulting other doctors and specialists to get everyone under the umbrella...

Source: PointofLaw.com | PointOfLaw Forum: Does med-mal risk, like misery, love company?

Obviously, I disagree that consulting with one's peers is defensive medicine, except perhaps in the most obvious cases.  But the rest of Charity Doc's complaints are worth reading.  He assesses the numerous problems with our medical system.  Might I suggest we work on the other issues he brings up before we try and take away patient rights?

"...When ~47 millions of Americans do not have health insurance, we have a big problem. When a person in America has to make a decision between food on the table or pills in a bottle to take for his/her medical problems, it is an national disgrace... When hospitals pass on the costs of healthcare to the public by marking everything up by 1000%, we all have to pay painfully... When hospital and HMO administrators without any clinical experience or medical background can dictate what tests and studies physicians can or cannot order, the ship is being run by idiots and is doom to sink... [If the HMO's are allowing the doctor s to get second opinions - I mean practice defensive medicine - what does that say? - Justinian]"  

Source: Fingers And Tubes In Every Orifice: Taking a break

I suggest checking out the rest of Charity Doc's post as this is just a sampling.

Technorati tags: Walter Olson, Point of Law, Charity Doc, Medical malpractice, Defensive medicine, patient rights

Omission of important fact at Overlawyered

Walter is generally pretty good about presenting the important facts, but he left one in out in the following post:

"Reasonable foreseeability? "A woman has won nearly $240,000 compensation from RailCorp after a judge ruled she was raped because she had broken her ankle weeks earlier at a Sydney railway station. RailCorp was found responsible for the woman's rape at a private home, because she could not escape with her leg in plaster, and for her subsequent depression." (Geesche Jacobsen, "A fall, a rape - and $240,000", Sydney Morning Herald, Apr. 26)."

Source: Overlawyered: Oz: railway slip-fall blamed for rape

Reading Walter's post above, one might come to the conclusion that the woman was awarded a large amount of money because of the rape.  But she wasn't. 

"She was awarded $239,405 for the injury, medical expenses, and lost wages. [Not quite $200,000 U.S. Dollars - Justinian]

This includes damages of $150 a week for the rest of her life because her injury prevents her working in the same position she did before coming to Australia."

Source: A fall, a rape - and $240,000 - National - smh.com.au

Let's assume "for the rest of her life" was estimated at 25 years; that would mean $195,000 of the award was because of the injury.  Since she is only 36, one would assume the court estimated she has longer than 25 years to live, so this figure might be low.  At any rate, the woman wasn't awarded a quarter of a million dollars for the rape.

Technorati tags: Overlawyered, Walter Olson, RailCorp

Google Rankings

Since I slacked for several months, I dropped into the sixties on a Google for "tort reform."  I'm happy to be back on the front page again, directly below atrafoundation.org.  Make my day and link to me to push me above at least one of the ATRA's sites.  ATRA.org is at number one now, followed by Wikipedia, but they've been battling for 1 and 2 for some time now.

At least I'm way above the shysters and charlatans at the Pacfic Research Institute. :)

Offensive Jury Argument By Defense Counsel

Lowell Steiger wrote about a malpractice case in which the plaintiff lost, possibly because of highly improper closing arguments by the defense counsel.  This case is unusual because the plaintiff's appeal was granted and will receive a new trial.  Here is the portion of the closing argument that caused the reversal:

Defense Counsel: I'm going to touch on in-tentional infliction of emotional distress for a moment. This claim troubles me, not because it has any merit but I don't know Dr. Looby person-ally. I know him professionally from having as-sociated with him through this trial. I don't think he even knows this but he delivered my second child. I'm sure he doesn't remember it. But he is a quiet, professional person. And to have these ac-cusations made against him troubles me. Why is the claim being made? You know what this type of claim is usually reserved for, this intentional infliction? If I have just so much hate for another person that I call them and tell them that their child just got killed in a motor vehicle accident.

Plaintiff's Counsel: Your Honor, I'm going to object. It's highly improper. Counsel is testifying about the basis for a cause of action. His personal opinion. Improper personalization of the evi-dence. It's just designed to inflame the jury and has nothing to do with the facts or the evidence in this case.

Court: Well, overruled. I'll allow it.

Defense Counsel: As I say, it's reserved for people that vindictively want to hurt somebody else. Call them up and say your child just got run over and is dead and society doesn't tolerate that. That's where this comes from.

So, what's it doing in this law suit? Well, let's try to get some punitive damages. I mean, if this is the Lotto or Powerball or whatever they call it, let's really roll the dice big. And how do we do that? We can't do that with a medical malpractice lawsuit. We have to say that Dr. Looby intention-ally did something. So, let's see how we can weave this into intentional misconduct, then we can put in his wage reports. And not only that, Sioux Valley, a non-profit corporation that's owned by all of us. Let's show their balance sheet and--
Plaintiff's Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccu-rate and it is an outrageous statement. It's a pri-vate corporation.

Court: Well, it's argument. I'll allow Defense Counsel to make his argument.

Defense Counsel: If that's an outrageous statement, I probably committed some kind of -
But, in any event, that's all beside the point but why do you do that? Well, let's show some real money and then go after it. We got sympathy on the one end and now let's punish him by show-ing we have a doctor who has been successful with his life and he and his wife own some assets as he approaches retirement and let's show them Sioux Valley Clinic. Yeah, that's the ticket. Now we are on the way. Powerball here we come.

Source: Los Angeles Personal Injury Law Blog

See, tort "reform" works.  First thing you do is tell everyone there's a litigation crisis and everyone wants to play the lawsuit lottery.  Then, you have defense lawyers work in such great phrases as "Powerball here we come" into the closing argument.  Finally, you sit back and see insurer profits soar because they no longer have to worry about jury verdicts.

Technorati tags: medical malpractice, improper argument, tort reform

What side will the "reform" advocates take?

"Reform" advocates often claim that trial lawyers and the lawsuits they file prevent many people from getting access to needed medicines.  Supposedly, the threat of product liability lawsuits is so scary that pharmaceuticals aren't releasing perfectly safe drugs.  To hear them tell it, "reformers" are actually consumer advocates, working to ensure more people have access to better medications. 

If increasing access to medications is one of their goals, I would hope that "reform" advocates will work to end the practice of "reverse payments" or "reverse settlements" in the pharmaceutical industry.  Reverse payments allow large pharmaceuticals to pay their competitors not to bring generic drugs to market.  Here are some relevant articles about the practice:

"To qualify for the program [The program that simplifies the approval process for generic drugs. - Justinian], however, the generic lab must show that the original drug's patent is either expired or invalid. When generic labs opting for the latter route -- known as "Paragraph IV certification," after the section of the application attesting to the patent's invalidity -- file their ANDA, they automatically create a patent-infringement cause of action against them by the pioneer drug company. In return for imposing the burden of litigating that patent's validity on a generic manufacturer, the Hatch-Waxman Act rewards it with a 180-day exclusivity period so that it can get a jump on other generic labs if the patent is declared invalid.

If the pioneer company is insecure about the validity of its patent, it may simply choose to reach a "reverse settlement" with the generic entrant -- i.e., it pays the generic manufacturer to drop the case and agree not to bring the generic version to market. An arrangement of this sort between pharmaceutical giant Zeneca and generic manufacturer Barr Laboratories is at the heart of a case up for consideration on Friday by the Court, Joblove v. Barr Labs (No. 06-830). At issue is the patent for tamoxifen, a drug used to treat breast cancer that has become the most widely used cancer drug in the world." (Emphasis in original.)

Source: Philip Brooks' Patent Infringement Updates: Reverse Payments

"AstraZeneca paid Barr $56.9 million to delay its generic version of the breast-cancer drug Tamoxifen, and supplied Barr with Tamoxifen for resale in the US under a royalty arrangement."

Source: Pharmalot: DOJ To FTC: Reverse Payments Are OK

Conveniently, Philip Brooks already emphasized a very important part of his article.  The Hatch-Waxman encourages generic drug manufacturers to bring patent challenges, because if the challenge is successful, the generic manufacturer is rewarded with a six-month period of time in which it will be the only manufacturer allowed to market the generic drug in question.  This is a strong incentive for generic manufacturers to bring patent challenges - which is good for consumers as it leads to cheaper generic drugs.  But it is unquestionably bad for consumers when pharmaceuticals are allowed to bribe generic manufacturers to keep their factories idle.

It will be interesting to see how the Supeme Court resolves the Barr Laboratories case.  Even if the Court continues to allow these bribes, the practice still may be doomed:

"The Senate Judiciary Committee today passed a bill that takes aim at the growing problem of brand-name drug manufacturers using pay-off agreements to delay the public’s access to generic medicines.  The bipartisan Preserve Access to Affordable Generics Act (S. 316) would prohibit brand-name drug companies from exploiting a loophole in the Hatch-Waxman Act to pay generic drug companies to delay entry of new generic medicines into the market." (Emphasis in original.)

Source: Philip Brooks' Patent Infringement Updates: Reverse Payments

Groups like the American Tort Reform Association are generously funded by the drug manufacturers who bribe their competitors.  Will the ATRA bite the hand that feeds it and prove they really are consumer advocates and oppose the loophole?  Or will they show their true color is green and support the "right" of their funders to deny people access to lifesaving medications?  If the latter, I would hope the ATRA will have the integrity not to accuse trial lawyers of denying consumers access to the medications the ATRA's funders are spending millions to keep off the market.

Technorati tags: Reverse payments, Hatch-Waxman Act, pharmaceuticals, ATRA, bribes, AstraZeneca, Tamoxifen

The "Ethical" Pharmaceutical Sector

I saw an interesting article at Pharmalot about the sales tactics pharmaceutical sales reps use to push products onto doctors.  We strictly regulate how lawyers may solicit for clients, but we allow people with no medical degree - and sometimes not even a Bachelor's degree - to recommend which medicines a doctor should prescribe.

"During training, I was told, when you’re out to dinner with a doctor, 'The physician is eating with a friend. You are eating with a client.' " - Shahram Ahari...

Reps may be genuinely friendly, but they are not genuine friends. Drug reps are selected for their presentability and outgoing natures, and are trained to be observant and personable...Personal information may be more important than prescribing prefernces... A photo on a desk presents an opportunity to inquire about family members and memorize whatever tidbits they are offering...Reps scour a doctor's office for objects - a tennis racquet, Russian novels, seventies rock music, fashion magainze, travel mementos, or cultural or religious symbols - that can be used to establish a personal connection with the doctor.

They then list eight different types of doctors: friendly and outgoing; aloof and skeptical; mercenary; high prescribers; prefers a competing drug; acquiescent; no-see, no-time, and finally, the thought leader. And they provide insights into all the methods a sales rep may use to wear down each one in hopes of getting more scrips written.

For instance, with the 'friendly and outgoing doc,' Ahari (that's him to the right) says that he would 'frame everything as a gesture of friendship. I give them free samples not because it's my job, but because I like them so much. I provide office lunches because visiting them is such a pleasant relief from all the other docs. My drugs rarely get mentioned by me during our dinners.

Just being friends with most of my docs seemed to have some natural basic effect on their prescribing habits. When the time is ripe, I lean on my 'friendship' to leverage more patients to my drugs...say, because it'll help me meet quota or it will impress my manager, or its crucial for my career. Outgoing, friendly physicians are every rep's favoriate, because cultivating friendship is a mutual aim. While this may be genuine behavior on the doctor's side, it is usually caclulated on the part of the rep." (Emphasis added.)

Source: Pharmalot: The Doctor Is Not Your Friend!

I wonder how many victims defective drugs were given their prescription just to help a sales rep "meet quota." 

Perhaps Congress should introduce legislation to prohibit pharmaceuticals from giving gifts to physicians - something similar to the crackdown on lobbyists, for example.  They could even require them to register as "medical lobbyists." 

Cross-posted to TortDeform.com

Oklahoma State Senator Jim Wilson on SB 507

It remains to be seen whether or not the Governor of Oklahoma will veto this bill.  For the sake of Oklahoma, I sure hope he does.  And shame on Susan Paddack for voting for this one.  I'd chastise the Republicans who voted for it, but we all know they did so out of concern for their campaign contributions and not for their constituents.

Wilson spoke at length about Senate Bill 507, a controversial lawsuit reform bill that passed Thursday, 25-23, with only one Democrat – Susan Paddack, D-Ada – voting for the measure.
Wilson was very open about his views on the bill.
“I hope the governor vetoes it,” he said.
Wilson explained several details of the bill that he disagrees with, including:
• Relatives of fatal accident victims who are awarded monetary judgments would, under the new measure, have those judgments reduced by an amount equal to any life insurance payments made.
• Relatives of nursing home residents who may have been injured because of nursing home negligence would not be allowed to use nursing home records as evidence.  (See what happens when a major industry buys off legislators? - Justinian)
“That’s protection for the nursing home industry,” said Wilson.
“Not that we don’t need to protect them, but we have to be moderate about it.”
• Judgments in favor of plaintiffs in negligence lawsuits would be paid in annual installments, based on the expected life-span of that plaintiff. The problem with that measure, Wilson said, is that many of those negligence victims have exorbitant bills that need to be paid, and are likely to settle for a much smaller amount just so they can receive the entire settlement in one lump sum.
Wilson said supporters of the bill claim it will lower malpractice insurance costs for doctors in the state. But, he added, the legislature passed a $300,000 cap on lawsuits against emergency room and obstetrics/gynecology doctors several years ago.
That bill, he said, did what it was intended to do – lower costs – but the savings were not passed on from the insurance companies to physicians and patients. (Emphasis added.)

Source: Tahlequah Daily Press - Wilson addresses tort reform at Hulbert breakfast

Can someone please explain to me why we can cap the amount of money that injured citizens can receive, but we can't cap the malpractice premiums of doctors?  Especially when we pass laws that are intended to lower malpractice premiums?

Cross posted to Tortdeform.com

Technorati tags: Oklahoma, SB 507, Jim Wilson, tort reform, medical malpractice, insurance cartel, nursing homes, lobbyists, Tortdeform.com