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Personal Injury Lawyers And Unharmed Plaintiffs Are Gaming The System

Efforts by personal injury lawyers to flood the courts with class-action lawsuits based on "junk science" are undermining the effectiveness of our litigation system and pose a threat to healthcare. Unharmed plaintiffs are also cashing in on jackpot jury awards and depriving those who are truly harmed from getting compensated.

Unharmed litigants are filing suit and depriving patients who may have been truly harmed from receiving compensation

  • Since its widely used cholesterol-lowering drug Baycol was withdrawn from the market, Bayer is facing more than 8,000 lawsuits. The New York Times notes that at least 6,000 of those lawsuits, however, are being filed by people who did not suffer any side effects whatsoever. (Scott Gotlieb, M.D., The New York Times, February 26, 2003)

  • Even though she admittedly had never been harmed by the heartburn drug Propulsid, Hazel Norton of Rolling Fork, Mississippi joined a mass action against its makers because she "thought she might get a couple of thousand dollars." When her doctor subsequently left the state in response to excessive litigation, Norton commented, "I'm kind of upset. I do not want him leaving because of all the suits. If we run off all the doctors, what are the people gonna do?" ( "Tort Reform: Just What the Doctors Ordered?" Clarion Ledger, July 29, 2002)

  • Patients sick from asbestos exposure who seek to recover healthcare costs through the courts or their employers may not be able to obtain relief due to hundreds of thousands of unimpaired asbestos plaintiffs who are also filing suit. Approximately 50 companies have now gone bankrupt due to asbestos litigation. Today, approximately 80% of asbestos plaintiffs are unimpaired; they show no symptoms of illness, and are likely never to become ill, but have merely tested positive for exposure to asbestos. The bankruptcy of many asbestos defendants whose resources went to pay the claims of the unimpaired has denied real justice for a handful of truly sick claimants. ("G-I Holdings' Bankruptcy Filing Cites Exposure in Asbestos Cases", The Wall Street Journal, January 8, 2001; "The $200 Billion Miscarriage of Justice; Asbestos lawyers are pitting plaintiffs who aren't sick against companies that never made the stuff - and extracting billions for themselves", Fortune, March 4, 2002)

Personal injury lawyer scare tactics put health at risk

  • Lawyer advertising seeking to gather up claimants has become endemic - on television, radio billboards and the Internet. One of the nation's largest legal-advertising agencies, Network Affiliates, reported that one-third of its $20 million in legal billings in 2001 came from pharmaceutical litigation ads, up from roughly 1 percent 10 years ago. ("Coming to Terms with the $20,000 Ad: A Realization About Lawyer Advertising," National Law Journal, October 10, 2002; "See You In Court," Desert News, September 8, 2002)

  • As consumers are assaulted with advertising that relies on "junk" science to make them think that their medication has put them at risk, whether this concern is real or manufactured, many people stop taking legitimate lifesaving medicines without the consult of their physician. Through advertising, lawyers now dispense advice on the potential impact of medicines or medical technologies, with no accountability for adverse consequences.

  • For example, the aggressive attorney advertising following the recall of one cholesterol-lowering drug sparked fear of all statins (the name for this class of cholesterol-lowering drugs) among patients across America. Some patients taking safe, heart-attack-preventing medications stopped their medication - thereby putting their health at risk. ("No Reason To Panic, Doctors Say: Baycol Recall Raises Anxiety of Patients", Fort Lauderdale Sun-Sentinel, August 29, 2001)

Lawyers make millions while most patients receive nothing

  • The Physician Insurers Association of America report that under typical contingency fee arrangements, lawyers walk away with 30-50% of any jury award to the plaintiff, plus an additional percentage of the award to cover expenses. (Medical Malpractice Claim Expenses, Physician Insurers Association of America, 1999)

  • The Department of Health and Human Services notes that when a patient does decide to go into the litigation system, only a very small number recover anything. They note that 57 - 70% of cases result in no payment for the patient. (Testimony presented by the Physician Insurers Association of America before the Subcommittee on Commercial and Administrative Law before the House Judiciary Committee, June 12, 2002)

  • The majority of victims of medical error do not pursue litigation. A study in the New England Journal of Medicine found that only 1.53% of those injured filed a claim. ("Relation between malpractice claims and adverse events due to negligence; results of the Harvard Medical Practice Study III". New England Journal of Medicine, July 25, 1991.)

  • Almost half of the total amount of claim costs paid for liability claims in the long term care industry is going directly to attorneys. (Long Term Care: General Liability and Professional Liability Actuarial Analysis, p. 4)

  • The National Association of Consumer Advocates testified: "Simply put, many consumer class actions are now being settled on the basis of what the lawyers get and not what the consumers in the class get." (National Association of Consumer Advocates, Senate Judiciary Subcommittee Hearing, May 4, 1999)

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