Recently the American Association for Justice (AAJ) published a list of ways in which society would be dramatically different if we did not have a civil justice system. The civil justice system is the court system we have in the United States where every day people are able to find justice for wrongs they suffer that are the fault of others. One part of the civil justice system is the medical malpractice system. Over the past few weeks we have been analyzing some of the ways in which the medical malpractice system makes our healthcare system better than it would otherwise be. This week we will be addressing the problems with prescription drugs that would go almost completely unchecked without a civil justice system.
How the Civil Justice System Makes Drugs Safer
While there are some scientists at universities and at other not-for-profit agencies that contribute to medical breakthroughs, most prescription drugs in the United States are produced and developed by for-profit companies. Those companies are no different than any other type of for-profit company in a capitalist system: their goal is to make as much profit as possible. While they are marginally regulated by the Food and Drug Administration, those regulations are not particularly strong. The FDA does not do its own independent studies to determine whether a drug is safe before it is marketed. Instead, the drug company funds the tests. Given the drug company’s strong incentive to make as much profit as possible, the only real way to make drug safety their concern is to make marketing a dangerous drug extremely costly. That is what the civil justice system does. By allowing injured patients and their survivors to sue drug manufacturers for their losses, the drug companies are forced to bear the costs of those injuries, and thus bear the real cost of unsafe drugs. Those costs in turn make it more profitable to make efforts to avoid marketing dangerous drugs.
Evidence of Drug Manufacturers’ Bad Behavior
In 2010 the New York Times reported on drug manufacturers marketing of antipsychotic drugs. In the report, the Times noted that major drug manufacturers including Bristol-Myers Squibb, Eli Lilly, Pfizer, AstraZeneca, and Johnson & Johnson were all either under government investigation or had settled cases brought by the government for hundred of millions of dollars alleging that the companies had made false claims about the antipsychotic drugs they sold. The companies claim that their antipsychotics are safe and effective at treating schizophrenia and bipolar mania. Yet while only one percent of America’s population suffers from those conditions, the drugs to treat them became drug companies’ biggest sellers. At the same time, documents discovered because of lawsuits show that some drug company officials were aware of questionable marketing tactics that were used to sell these drugs.
Questionable marketing tactics does not just mean misleading commercials. It included “payments, gifts, meals and trips for doctors, biased studies, ghostwritten medical journal articles, promotional conference appearances, and payments for postgraduate medical education that encourages a pro-drug outlook among doctors.” Other documents indicated that some companies tried to hide the risk of diabetes and weight gain associated with the drugs. In other words, it appears the doctors prescribing the drugs were given kickbacks, and drug companies hid side effects from patients. And the only reason this information is available is because of a lawsuit.
In an ideal world, we could rely on our doctors to prescribe appropriate drugs, and on drug manufacturers to produce safe drugs. Some doctors, even most doctors, do just that. But given the perverse profit incentives, that is not always the case. The civil justice system fights back against these forces in a language they speak-the language of money. And while it is not perfect, and it does not stop all of the corruption, it catches and stops some. And because of that, we are better off.
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