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Refuse to sue, get cheaper drugs

December 09, 2006|by Robert Gary

Before I lay out my modest proposal, let me say that the health- care crisis is a big hairy 800-pound gorilla so it's not reasonable to expect that the solution will be a small round dinner mint with some cream sauce on top. Big hairy problems, if they are to be solved, require big solutions. To solve big problems, we have to think differently.

Two tiers need to be created among those using prescription drugs. The first tier would be precisely what we have now where the patient buys the drugs for say, $500 per bottle, and retains an unlimited right to sue the drug maker if the drugs have side effects that prove to be harmful.

Right now there are thousands of lawsuits about Vioxx because apparently it might cause heart problems. To some people, money means very little. What they really want is the right to sue.

They might come from families that are very litigious or they might have beliefs that call for litigation to redress any harm that they experience in this world. Or they might feel that the FDA does a very poor job of screening drugs. And they don't completely trust their doctor either, so without their lawyer there to litigate for them, they feel helpless and unprotected.

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OK, that's tier A - nothing is changed for these folks - they get to do what they get to do now and they pay the prices that they pay now - for them everything stays the same.

Now in Tier B things are different. The drug company gets an absolute ironclad waiver of all civil suit liability except if it intentionally and criminally poisons people with the intent to harm them. The Tier B people who sign the waiver get their drugs for $250 per bottle (instead of $500 per bottle).

There might be people for whom money is quite important and who do not put much value in their right to sue. They might come from families that are not at all litigious or they might emphasize personal responsibility to avoid harm rather than use lawsuits to compensate for it after it happens.

They might be willing to accept whatever risks remain after the exhaustive screening processes by the FDA. They might have a lot of confidence in their doctor's ability to help and protect them from possibly dangerous drugs. OK that's tier B - they get their drugs at half price, but they give up the right to sue.

Why do I think there would be anybody in tier B? Well a lot of people get their prescriptions from pharmacies in Canada now. By doing so, they already, as a practical matter, are giving up their right to sue the American drug manufacturer. What these people want is the half-price bottle of drugs and that is more important to them than their right to sue the American drug maker.

As we advance in science, more and more of medicine is all about prescription drugs. Health care is bigger than prescription drugs, but they are playing a proportionately larger role as time goes by. The drug companies are not the villains here and neither is the FDA. The problem is an uncontrolled lawsuit system. Take away the litigation factor and prescription drugs cost would cost half as much.

How big and hairy is the solution? It's a matter of knowingly and willingly giving up the right to sue. It probably requires at least a few signatures before witnesses, a notary, and probably a lawyer.

It could take an hour to get it done. It could cost $500 so everybody gets paid and the forms get properly copied and filed. It's a little cumbersome, and probably more than a little irksome, but it's workable, and it's good for the U.S. economy (except for the trial lawyers; they would lose out).

It helps the economy by averting a massive shortfall in our funding for Medicare and Medicaid - we could go broke trying to pay for all the entitlements based on the present rules of engagement. It helps the drug companies because they can save and recover all that business that is presently going to Canada. Those pills could be sold in the U.S.

It's easy to criticize this modest proposal based on the idea that it constitutes doing things differently. It involves thinking differently and creating new options and new outcomes. Yes, it does. I said it would. You can't solve big hard problems with small wet noodles. You can't make things different without being different. Change is part of problem solving. For big problems, big change is needed.

Robert Gary, a retired attorney who lives in Hagerstown, writes for The Herald-Mail.

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