News Room
Sick of Lawsuits? You Should Be! Web Chat

Dr. Henry Miller
Dr. Evelyn Tobias Merrill
July 13, 2005, 2:00pm ET

Dr Merrill: Welcome to the third chat in Sick of Lawsuits' "On Call" series. We've had a tremendous response to our previous events and always look forward to our next opportunity to hear from citizens who are as concerned as we are about the devastating impact lawsuit abuse is having on our healthcare system. Since skyrocketing medical malpractice insurance costs forced me to close my practice in Corpus Christi, Texas, I have worked to pass civil justice legislation in Texas and have served as a spokesperson for the Sick of Lawsuits campaign. On behalf of the campaign, I'd like to thank former FDA official Dr. Henry Miller for joining us today. It is a wonderful opportunity to have such an expert to answer our questions about the litigation problems affecting our healthcare system.

Dr Miller: Good Day and thank you for joining the chat. I'm delighted to be here today and I'd like to thank for continuing to bring attention to this important issue. As Dr. Tobias-Merrill said, I was at the FDA from 1979-1994, where I served in a number of posts related to product review and policymaking. Since then, I have been a fellow at Stanford University's Hoover Institution. My work there has focused on the relationship between science and regulation, the costs and benefits of government regulation, and models for regulatory reform. You can find examples of my articles by performing a Google search for "Henry Miller _______," where the blank is a relevant subject such as "regulation," "FDA" or "biotechnology."

Dr Miller: I'm looking forward to hearing from Sick of Lawsuits supporters so let's take some questions.

Juli__San Antonio, TX: Have the caps on punitive damages awards helped the situation?

Dr Merrill: Since Texas passed Proposition 12, an amendment giving the Legislature constitutional authority to set limits on damages in medical malpractice and other lawsuits, patients have better access to healthcare, new physicians are coming to communities, insurance costs are down significantly for many hospitals and some doctors, and healthcare lawsuits have declined significantly. Prop 12 is working and Texas courts will continue to improve once the courts are unclogged from the flood of lawsuits filed just before the new law took effect in September of 2003.

Dr Merrill: Proposition 12 was a great win for Texas patients, but we must stay vigilant and make sure our civil justice system and our healthcare system is safe from other types of lawsuit abuse.

Melvin_Chula Vista: Is there any way to protect vaccine manufacturing companies from frivolous lawsuits? We keep running short of important vaccines.

Dr Miller: This year's flu-vaccine shortfall is just one of many dangerous shortages of essential vaccines-and it need not have happened. There are several factors that discourage vaccine R&D, factors that have caused many drug companies to give up work on vaccines entirely. They include the FDA's over-regulation and the Centers for Disease Control and Prevention's extortionate demands on manufacturers for huge discounts, and also fear of lawsuits. All of these factors make vaccine R&D unprofitable and unpredictable. In spite of a generally high level of quality control in the industry and intense scrutiny by the FDA, drug and vaccine manufacturers are tempting targets for litigation. The threat of liability suit

Dr Miller: To reduce the vulnerability of vaccine manufacturers to lawsuits, we should do two things. First, introduce a "regulatory compliance defense" against allegations of product liability. If a pharmaceutical manufacturer meets the stringent and comprehensive regulatory requirements for product approval, and makes the product in the prescribed way, any mishap from the product would be considered to be nonculpable. Such a defense would apply to damages caused by unforeseen circumstances, but it would not extend to fraud or negligence. Second, we should extend to all vaccines the federal program that currently compensates children who are injured by pediatric vaccines.

Richmond_George: Besides contacting our members of Congress to remind them of the dangers of frivolous lawsuits, what also needs to be done?

Dr Merrill: Join Sick of Lawsuits. Contact your state and local officials, not just Members of Congress. Get involved in your communities and help educate others about the problem. Recruit others, such as your friends, family and local organizations, to join the Sick of Lawsuits campaign. When you see abuse occurring, write a letter to your local paper and call in to local talk shows to highlight the problem.

Louise_Millersville, MD: What should be done by state medical boards about unscrupulous physicians who run litigation mills for mass tort plaintiffs?

Dr Miller: There are many cases in which personal injury lawyers have hired doctors to examine hundreds and even thousands of people in order to produce as many injured plaintiffs as possible for a lawsuit, leaving many questions about the credibility of the diagnosis. For example, a team of cardiologists that reviewed nearly 1,000 claims slated to be paid under the Fen-Phen settlement concluded that 71 percent involved medical tests that had been manipulated to misrepresent how much damage had been done to the patient's heart.

Dr Miller: Some believe that medical boards should be involved in disciplining these unscrupulous physicians and others believe that medical societies should establish rules and discipline members. The point is that dishonest physicians should be disciplined, perhaps by panels that are similar to those that investigate charges of other kinds of misconduct.

Alex: I see on your Web site that you're asking supporters to write letters to the Federal Trade Commission to put greater standards on personal injury lawyer advertising. Could you give us more details on this?

Dr Merrill: Personal injury lawyer advertising often misleads, needlessly scares patients and encourages uninjured people to sue. We want to draw attention to the negative effects misleading advertisements have on our healthcare system and on the well-being of patients. Our goal is to warn patients not to believe everything they see in a personal injury lawyer advertisement. If patients have questions about their health, they should consult their doctor, not a lawyer.

Dr Merrill: We are asking consumers to sign a petition urging the FTC to pursue stricter guidelines for disclosure on personal injury lawyer ads. You can do your part by sending a letter through the link on the Sick of Lawsuits' homepage. Additionally, people should notify their state's Bar with concerns and complaints about irresponsible personal injury lawyer advertising.

Robert_Austin, TX: What percentage of the cost of prescription medicine is due to litigation related costs?

Dr Miller: While we can be certain that litigation does contribute to the price (as it does to other consumer products, ranging from household ladders to small airplanes), it is difficult to determine an exact dollar amount. However, we pay a far greater price for frivolous litigation through stifled research and removal of good and safe drugs from the market. A perfect example is a drug called Bendectin, which for many years was an excellent treatment for the morning sickness of pregnancy, until the manufacturer stopped selling the drug in the United States.

Dr Miller: Amazingly, it was not problems with safety, efficacy or unprofitability that caused the withdrawal of the drug from the market. Frivolous, debilitating lawsuits killed this drug and relegated American women to munching crackers and quack cures. During the 1970s and 1980s, almost 2,000 lawsuits were filed, alleging that Bendectin had caused birth defects. Not a single judgment went against the manufacturer, but Bendectin was pulled from the market because of fears that an unreasonable and hostile jury might someday award huge damages.

Tom_CA: Aren't there already laws on the books that regulate advertising?

Dr Merrill: Yes, but those laws do not go far enough in making personal injury lawyer advertisements more responsible and factual, which is why it often misleads, needlessly scares patients and encourages uninjured people to sue in the hopes of winning big money.

Joan_Wilson, WY: What do you think of a health court?

Dr Miller: USA Today recently published a piece in their opinion page about the possibility of a health court. I think it's promising. Partly because of unscrupulous hired-gun "experts" who testify in jury trials, justice is not assured in litigation that involves complicated medical/technical issues. The health court could be one of many innovative solutions that might address the current crisis of lawsuit abuse and help to ensure that Americans have access to the best possible research, technology and healthcare. I'm also in favor of unsuccessful plaintiffs being obligated to pay court and defense costs, in order to discourage frivolous lawsuits.

Sam: Doctor Merrill, my friend is in med school but may not choose to study obstetrics because of how many in this field have been faced with litigation. If she's feeling this way, I can only imagine other future doctors are experiencing the same fears. What should we do to help people like her and encourage other future health care practitioners?

Dr Merrill: This is a huge problem that faces future doctors and is indicative of the larger issues that plague the rest of our healthcare system. As Dr. Miller mentioned, we can't count the number of life-saving medications that will never be developed due to litigation fears and the number of hospitals and trauma centers that will close.

Dr Merrill: I think the best thing to do is continue to fight lawsuit abuse by developing a system that will compensate those who are injured while preventing our healthcare system from being destroyed by run-away litigation. Successful reform will weed out junk lawsuits, put more money in the hands of injured patients instead of the pockets of personal injury lawyers and allow valuable healthcare dollars to be used for patient care instead of defensive medicine and litigation expenses.

Dr Miller: I think we have time for one more question . . .

Evan_Chicago: This question is for either or both participants. Are all medical malpractice lawsuits frivolous? If not, how do we know which ones are and which ones are not?

Dr Miller: Certainly, all malpractice lawsuits are not frivolous. In some states, there is a screening board of experts that performs an initial vetting of whether the suit has merit - a useful innovation to weed out the obviously frivolous. It is important, too, that we have civil justice reform to compensate persons who are injured without hugely expensive and uncertain litigation, and perhaps to require unsuccessful plaintiffs to pay court costs and defendants' costs. An important recent piece of legislation relegates most class action suits to federal - rather than state - courts, which will increase the fairness of the system.

Unknown: Since Prop 12 what are some of the biggest challenges our healthcare is facing today?

Dr Merrill: Prop 12 has offered our patients, communities, hospitals and doctors many benefits. Clearly there is more to be done. Continuing to educate the public that filing frivolous lawsuits drains our precious healthcare dollar is important. Equally, patients should be educated that many personal injury advertisements are designed to needlessly scare them. If patients have questions about their healthcare, they should contact their physicians. Staying involved is important!

Dr Merrill: I'd like to thank Dr. Miller and all who were involved in this chat. I encourage everyone to visit and stay involved with this important issue. Thank you again.

Dr Miller: Thank you all for participating. I'm delighted to see that there's so much interest in this important subject. Keep up the pressure for reform!