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Commentary

Justice Scams
Ted Frank, AEI Online, 8-8-06

Frank offers a disturbing look into medical malpractice and its effect on drug development and medical progress. He argues that fraudulent malpractice suits have become pervasive and, as a result, safe and effective medical treatments have been taken from the market and medical innovation has suffered as companies avoid products viewed as litigation magnets.

Is there a mass–tort case where fraud has not been a substantial factor? Good products like Bendectin have been driven from the American market because of litigation driven by junk science. When companies like Wyeth and Congoleum try to arrange settlements, they become chum in the water and find their resources drained by thousands of fraudulent claims of injury.

Years after the problem was first identified by gadflies like Lester Brickman and Walter Olson, there is finally a criminal investigation arising from a particularly blatant example of fraud where thousands of silicosis diagnoses were manufactured out of whole cloth by doctors literally rubberstamping claims. But in the Vioxx cases, the Garza family has been awarded millions; and Mark Lanier will be awarded his fees in the Cona case because of a favorable verdict on a consumer–fraud claim. Perhaps appellate courts will get around to correcting these travesties, but the plaintiffs' bar is counting on enough bad verdicts to slip through the cracks to make these cases profitable.

The equation of expected returns is certainly helped by the fact that no one is even suggesting that presenting this sort of questionable evidence is unethical, much less illegal. Drug safety is important, but so are the health costs from vaccines and drugs not marketed because of liability risks. If the judicial system cannot police itself adequately, the question then becomes why we want to entrust national drug safety policy to an elected judge and a handful of randomly selected jurors in Starr County, Texas?



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