Editorials and Opinion Pieces

Bad Bugs and Trial Lawyers

By: Karen Bailey and Kerri Houston
Date: March 5, 2003, GOPUSA.com
Word Count: 915

Fear of biological, chemical or radioactive attack is new to the American people. Today's world requires us to be continually cognizant of our surroundings and prepared for a terrorist attack on our home soil. The recent orange terror-alert and the government's suggestions on how to prepare reminds us that if an attack occurs, our lives will depend on the skills and availability of doctors and other medical professionals.

It is time to give thought to the devastating effect trial lawyers have on the ability of doctors to perform their duties - especially under critical emergency situations. What are the implications of potential "malpractice" suits on doctors and hospitals called upon to treat, medicate or vaccinate victims of a biological attack?

Think back to the first case of anthrax in Florida in October 2001. Doctors are trained to identify infections through testing and to treat patients accordingly - but this was a disease that didn't appear in urban areas until those fateful letters and packages arrived. That didn't matter to the patient who sent the package - victims just wanted to be treated and recover from this potentially fatal disease. Because of lag time in diagnosis, five lives were lost but 12 others were saved. Today, many doctors who aren't already resigning or striking because of egregiously high medical malpractice premiums are practicing defensive medicine - holding back or second guessing themselves for fear of what President Bush calls "junk lawsuits."

What if the doctors were afraid to treat patients or perhaps not there to treat them at all? What if the medications used to treat the infection weren't available because they were untested in mass distribution? This is more frightening than the attack itself, because it could essentially irradiate the cure.

Today's headlines are filled with the product of an out-of-control legal system and its effects on public health and safety. Whopping jury awards have raised medical liability insurance costs to such a degree that it is putting medical practitioners out of business. Doctors in Florida, West Virginia, Pennsylvania and New Jersey (to name just a few) are cutting their services or simply shutting their doors. Doctors are trained to practice medicine and treat people - not to become moving targets for trial lawyers.

Hospital trauma centers are also cutting services or closing completely while doctors are refusing to work in emergency rooms. If the doors are closed and doctors are in short supply or hesitate to treat the unknown, then it will be difficult for the American public to survive a bio-terror or chemical attack. Just as we have never been victims of such attacks, our medical practitioners have no hands-on experience in treating such a devastating medical emergency.

Joining medical professionals in the trial lawyers' crosshairs are pharmaceutical companies. They are the subjects of endless junk lawsuits based on junk science ranging from ridiculous and unsubstantiated assertions that vaccines cause Autism, to "the flu shot made me sick." If pharmaceutical companies faced a lawsuit over every complication from its products, many medications - including flu shots - would no longer be on the market. Nor would the companies have the capital or incentive to continue to develop better, more effective products such as the specialized flu shot that safely inoculates people allergic to eggs.

Our enemies, including al-Qaeda and Saddam Hussein, are suspected to have stores of smallpox, anthrax, botulism and the bubonic plague. Although vaccines are available for anthrax and smallpox, debate continues on whether the population should have access to the vaccines. The U.S. military reinstated the mandatory anthrax vaccination program in 2002 for military personnel and emergency-essential Department of Defense civilian employees or contractors deployed for more that 15 days in high threat areas. The vaccines provide at-risk personnel with a 90 percent effectiveness rate against the infection. Yet the vaccine is not available to the public for many reasons including the liability incurred by the pharmaceutical companies based on the possible side effects.

Debate continues over a mandatory smallpox vaccination program to protect the American population, but once again the possible side effects makes the doctors and pharmaceutical companies shudder at the thought of legal action. Limited reserves of the vaccine and the capital needed to produce more vaccine will result in reduced availability of the preventative medicine. And unlike anthrax, there is no proven curative treatment for the smallpox disease and the death rate is 30 percent. We'd rather take our chances with the vaccine.

America is known for its innovation and creativity - particularly in the medical field. Due our medical practitioners and pharmaceutical companies, we enjoy one of the highest and healthiest life expectancy rates in the world. At about $180 billion annually, America has the costliest tort system in the world. Frivolous lawsuits and outrageous damage awards have made trial lawyers rich - and self-perpetuating. One could argue that they don't represent victims - they create them. And a medical facility is nothing without services, medication and medical professionals who are secure in the knowledge that we will allow them to use their best practices and judgment in the unknown world that is Saddam's weaponry.

Lawyers sporting gas masks chasing victims in ambulances is not a pretty picture. As a society and a nation, we must protect our doctors and our medical infrastructure from the threat of unwarranted lawsuits now to allay their future fears. As they may be, after all, risking their personal safety to treat us, it seems the least we could do.

• Karen Bailey is State Projects Manager at Americans for Tax Reform. Kerri Houston is Vice President for Policy at Frontiers of Freedom Institute.