November 28, 2005
Blind leading the blind
Score another one for the Americans with Disabilities Act.
Mark Scolforo of the Associated Press filed this story last week:
A federal jury awarded $3.4 million Tuesday to a blind woman who was fired as head of Pennsylvania's state agency for the blind and visually impaired, ruling that she was discriminated against because of her disability....
[Christine] Boone sued the state Department of Labor and Industry and its head, Secretary Stephen Schmerin, as well as the Office of Vocational Rehabilitation and its since-retired executive director, Stephen Nasuti. In the jury award, each man was ordered to pay $1.5 million in compensatory damages for emotional distress Boone said she suffered as a result of their actions. The award also included punitive damages and the value jurors put on her lost future earning power.
If Boone was indeed fired because she was blind, is it a relevant fact that her replacement, Pamela Shaw, is also blind? Apparently not to Mr. Scolforo, who omitted this detail from the AP account. Nor was it deemed relevant to the 100 other news outlets that Google News says carried this story last week, but none of which Google claims also included the name "Shaw". I only found the fact from the pajama-clad bloggers at Overlawyered.com.
My notion of fairness is that everyone should have a chance to prove they can do the job satisfactorily. I just happen to believe that the most important people you have to persuade of this are the folks who pay your salary, not the good citizens who sit in a jury box.
Elsewhere in the news, drug maker Merck, which other juries are destined to plunder for many, many billions of dollars, announced it will eliminate 7,000 jobs and close or sell 5 manufacturing facilities.
Not to worry. This is just an example of what Joseph Schumpeter called creative destruction. As soon as we can get those former Merck employees retrained as lawyers, they'll be doing something that society values more than developing medicines that ease pain or cure disease.
The market has spoken. Who am I to argue?
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Tracked on December 6, 2005 02:17 PM
I googled *Boone Schmerin Nasuti*. I opened the cached copies of the first five articles, and all but one mention that Nasuti hired a blind woman as replacement (who has since resigned):
"The woman who replaced Boone at the agency, Pamela Shaw, also is blind, which state officials have cited as evidence that Nasuti was not biased against Boone."
-Centre Daily Times & Blind World Magazine
"Among the issues is her approach to a policy that would reduce college aid to blind students who receive merit scholarships. The state's lawyers wrote in July that Boone "refused to implement the policy and did so openly so as to disrupt operations and undermine her supervisors' authority."
-Centre Daily Times & Blind World Magazine
"Boone's replacement at the agency, Pamela Shaw, is also blind."
"Boone said Nasuti criticized her for "focusing too much on the blind" and called the National Federation of the Blind a "washed up" organization with no power, and said Boone was "too ... stupid" to see that.
Boone also said Nasuti did not respond to her request for agendas for staff meetings in Braille and that the department did not give her an extension to take the bar exam so she could get study materials for the blind."
"Golden told the jury that any inference that Nasuti was prejudiced against the blind was off base. Nasuti entered the vocational rehabilitation field 30 years ago, motivated by his blind mother, who also suffered from polio, Golden said. He also said that Nasuti replaced Boone with another blind woman, who has since resigned."
Posted by: Donal at November 28, 2005 03:48 PM
Donal, there's a difference between searching with Google and searching with Google News. I was referring to the latter, which you do by going to Google, click on News, and then search. That brings up the recent articles from last week, all of which seem to have dropped the facts about Shaw.
When you used Google rather than Google News, you found an earlier set of stories (one of which from CBS I referred to in my original post) which did mention Boone's replacement. The jury verdict came out last week. Have you found a report of the jury verdict (as opposed to earlier accounts of the trial that you cited) in the mainstream media that includes a statement about Shaw?
Posted by: JDH at November 28, 2005 04:04 PM
"Elsewhere in the news, drug maker Merck, which other juries are destined to plunder for many, many billions of dollars, announced it will eliminate 7,000 jobs and close or sell 5 manufacturing facilities."
Post hoc ergo procter hoc? Quite a leap in logic there.
Posted by: ken melvin at November 28, 2005 04:26 PM
"Elsewhere in the news, drug maker Merck, which other juries are destined to plunder for many, many billions of dollars..."
Plunder? Lets be honest here, Merck has violated the public trust by hiding information that has led to the death of an unknown number of our fellow human beings. If juries so decide to grind Merck to a fine powder and then blow them from the table with screams of anger then it serves them right. It's not like they're hurting for money to pay the best lawyers mankind has created to defend them. If even those lawyers cannot change the jury's mind then don't you think there is something of substance there?
The jury is not the bad guy!
Posted by: sampo at November 28, 2005 04:55 PM
Only an academic would be so arrogant as to make a judgement on the merits of a case on the basis of a blog with an agenda and a perusal of Google News. A jury that heard the many days of testimony, not a one paragraph blog, decided that the fact that she was replaced by a blind person had no relevance to the charge. (The "I'm not a racist -- some of my best friends are black" defense). If you would check into the facts of the case, most of the damages were assessed for false and defamatory statements officials made about her after she was fired. In other words, they lied. It is astounding that you have such contempt for the jury process. You should know better after the thorough debunking of the false and ridiculous statements put out about the infamous McDonald's case. You obviously have an ignorant knee-jerk reaction to torts and could care less about the facts, showing that your assumption of superiority to the average jury member is mistaken.
Posted by: Phillip at November 28, 2005 04:56 PM
Looks like I won't bother searching with google news unless I *want* to find less informative articles. Perhaps AP stopped mentioning the blind replacement because she had resigned. But Boone was fired, and discriminated against, for taking her job seriously, not for being blind, so the blind replacement is fairly meaningless.
Posted by: Donal at November 28, 2005 05:04 PM
Let me be clear, Phillip, that I am not asserting that my judgment as to whether Ms. Boone was adequately performing the duties for which she was paid is superior to the judgment of this or any jury. I am instead asserting that the judgment of Ms. Boone's employer as to whether she was adequately performing the duties for which she was paid is superior to the judgment of either me or any jury.
And, the purpose of noting what Google found was to point out what appears to me to be a deficiency in the media reports of the jury verdict. Wouldn't the proper role of a reporter be to relate this fact, and let readers decide for themselves whether it influenced how they interpreted the decision?
Posted by: JDH at November 28, 2005 05:36 PM
So I assume you are arguing that laws prohibiting discrimination by public officials should be eliminated?
As to the deficiency of the media reports perhaps you should be railing about the absence of reporting on the facts that the jury found relevant rather than the facts that the jury found irrelevant.
Posted by: Phillip at November 28, 2005 05:57 PM
Phillip, I enthusiastically would support repeal of the Americans with Disabilities Act, and would likewise enthusiastically support any legislation that denied any jury the authority to award in excess of $1 million for emotional distress.
Laws specifying what is and is not acceptable behavior by public officials are fine. I just believe they should be enforced through criminal proceedings rather than through dollar awards determined by juries.
Posted by: JDH at November 28, 2005 06:13 PM
Hmmm. Economists and lawyers seem to be the persona non grata in this modern world. How does the old saying go? Everyone hates a lawyer, except when they need one.
I guess the analagous saying would be "everyone hates an economist, until..."
Remind me once again: when does one need an economist? I've worked with a few lawyers in the technology world. Patent rights. Wording on contracts. The likes. I've yet to experience an instance in the real world in which we said "get me an economist, we need to solve this problem." I can even imagine a case in which I might say "get me a philosopher, there are some ethical issues we should consider." But when would I call an economist?
Seriously though: what is the total cost of the disabilities act? And the total cost of these jury awards? And what impact has the threat of jury awars had on the quality of products? And how does it compare with other costs in society.
And one final question: Are you tenured? Can the university throw you out and malign your career because of it some reason, with no avenues for redress? I worked as an engineering Director at QUALCOMM. I've been involved with a whole host of personnel and employment issues. The employment laws are a pain. But they also exist to protect people who would be thrown on their butts for no good reason. See Krugman's recent writings on the age of anxiety.
Finally, why have juries decide issues like this when companies can do it behind closed doors. Why have open debate on energy issues when secret meetings are more appropriate behind closed doors. And why have democracy when those in the "know" can make the decisions for us.
Apparently JDH is on his way to becoming a full-fledged (Leo) Straussian neo-con.
Posted by: T.R. Elliott at November 28, 2005 06:47 PM
Great post professor, keep up the great work!!!
Posted by: HispanicPundit at November 28, 2005 07:36 PM
Ah, good. Now we are getting to the center of where you real complaints lie rather than your original amorphous rant. It all makes more sense to me now that I know where you are coming from. These opinions are all good and valid points for debate. On just your last item, if the government refuses to prosecute itself, what alternative is there to a civil suit?
Posted by: Phillip at November 28, 2005 09:23 PM
JDH writes: "I am instead asserting that the judgment of Ms. Boone's employer as to whether she was adequately performing the duties for which she was paid is superior to the judgment of either me or any jury."
The implications of the above statement are really scary when one considers that this type of thinking is probably dominant among those who are currently the most influential in our society.
I am sure it will not be long before the assertion is made that voters below a certain socio-economic status cannot possibly understand the issues and therefore cannot make good choices at the ballot box.
Posted by: RayJ at November 28, 2005 09:39 PM
"Elsewhere in the news, drug maker Merck, which other juries are destined to plunder for many, many billions of dollars, announced it will eliminate 7,000 jobs and close or sell 5 manufacturing facilities."
Erm, considering that you railed against the media leaving out pertinent facts from news stories to give a false impression of what is going on, shouldn't you also have noted that:
"Merck projected a $2 billion decline in revenue next year as the patent expires on its biggest-selling drug, the Zocor cholesterol treatment."
Posted by: Factory at November 29, 2005 12:41 AM
I'm intrigued by the strong emotional reaction you have on this issue, in contrast to your normal careful and rational analysis. Blaming lawyers for trying to represent their clients best interests, or juries for doing whatever their best judgement tells them to do strikes me as a strange place to lay blame. It's like blaming oil companies for producing the oil we all want.
I think instead we should ask this question: why are Americans more likely than other people to resolve disputes by suing each other?
Posted by: Stuart Staniford at November 29, 2005 01:25 AM
I wouldn't blame lawyers or juries but rather lawmakers who produce such outrageous legislation as the Americans with Disabilities Act. Of course, the American Trial Lawyers probably lobbied heavily for its passage. But I don't blame them for trying to maximize their incomes. Again, its the legislators who opened this can of worms.
Lest anyone accuse me of being cold-hearted, please know that I have a disability which is covered by the Act I criticize. I'm not implying that makes me more or less qualified to offer my opinion. I just don't want to read any crap that begins "How would you feel if you were disabled and ..."
Posted by: JohnDewey at November 29, 2005 04:50 AM
We live in Mexico where there are no disability acts of any kind. It's a disgrace to see the depths to which disabled people are forced to sink just to survive.
The ADA might go too far,in some respects,but come here and see what happens in the absence of such laws.
Posted by: jim miller at November 29, 2005 07:56 AM
Stuart: I've always considered that Americans are more likely to sue one another because the very nature of our system of government is one of balance and ambiguity, which implies confrontation, whether between the branches of govt or the people in courts. My--admitted limited--understanding is that the French would never have this problem because power is much more centralized, the courts are all powerful, etc etc.
I find it amusing that JDH attacks this particular issue when, my limited understanding notwithstanding, most lawyers are going to court in support of COMPANIES SUING ONE ANOTHER. My last employer had a battalion of lawyers armed and ready to fight on the field of intellectual property rights.
So for me, the answer to the question you ask, for me, is twofold: (1) We have chosen a system in which disagreements are handled in the courts. The whole idea of precedence itself, in which law is that which was decided before, supports my idea. We've decided that society is too complex to regulate 100%, and to allow decisions to take place in back rooms, so the open forum of the courts is used instead. (2) I do think that Americans, as a society, seem unwilling to accept fate and responsibility. Someone else is always to blame. People need to whine and complain.
But look at this. I really want to know how much the disabilities acts has cost us. I'm not a big fan of, for example, mainstreaming highly dysfunctional children when they could be handled more cost effectively in centralized schooling facilities. But the question I wonder about: has the pendulum swung so far, when it comes to issues such as disabilities and race (another major complaint), that we created more hardship than the large amounts of hardship that existed during—what—most of recorded history? I'm not convinced that we have created that much hardship. Yeah, we can always find examples. A court case here. A caucasian student with perfect scores who was passed up at Columbia because of someone with brown skin and lesser grades.
So that makes me wonder whether the original impulse of this thread was #2 above: more whining and complaining. "It's not fair."
And I agree with other posters who have pointed out the almost dangerous nature of the thinking of this post. Hence my Straussian comment above. The Neocons in many cases have decided THAT THEY KNOW BETTER and therefore the only role for public communications is LYING TO CONVINCE PEOPLE, THROUGH WHATEVER MEANS POSSIBLE, to follow their lead. This is almost a religious sentiment.
Supreme Court justice Scalia, not one of my heroes, said it best. Paraphrasing: our system is highly muddled and inefficient. The alternative is a lot worse.
Posted by: T.R. Elliott at November 29, 2005 08:04 AM
T.R.Elliot writes: ...when does one need an economist?...I've yet to experience an instance in the real world in which we said "get me an economist, we need to solve this problem." ...But when would I call an economist?
No need to look very far:
Posted by: PML at November 29, 2005 08:17 AM
Consider how the Fed reacted to the LTCM crisis a few years ago, or to the stock market crash in 1987 (?). Compare that with what the Fed did in response to the problems in 1929. The change is thanks to economists.
In my experience the value in economics is in understanding how an economy functions so as to take advantage of a situation or protect against problems. Using economists to formulate public policy isn't very useful. They speak in geektalk and propose policies that are politically unacceptable,so of limited value. But they do have their uses,like to get dumped on at cocktail parties.
Posted by: jim miller at November 29, 2005 08:37 AM
The standard of living for disabled folks in the U.S. exceeded that of most Mexican citizens - before the ADA was passed. So I don't think what you are seeing in Mexico is what we would see here in the U.S. absent ADA.
Posted by: JohnDewey at November 29, 2005 09:45 AM
Keep in mind the jury is only allowed to take into consideration certain facts. And I'd be willing to bet a 6-pack of Bells that one of them was not the question "why the heck would anyone who doesn't think blind women are capable of doing anything bother to hire one for such an important position in the first place".
Posted by: Allen at November 29, 2005 09:45 AM
There was a funny line in Gorky Park:
"Well, do you know what you're doing here (USSR) when you engage a defence lawyer?"
I'd say Americans sue more because they have been told and still believe they will see justice from the courts.
Posted by: Donal at November 29, 2005 09:51 AM
I wasn't referring to the standard of living in a financial sense,but in the sense of dignity of life, ease of getting around,etc. We have two friends who work with mentally retarded people and people with Muscular dystrophy. These people essentially live as wards of the state like Americans did in the asylums of the 19th century. For the blind and disabled there are no wheel-chair ramps, no special facilities of any kind on public conveyances or in bathrooms and such. As to working,forget it. If a person isn't white enough, good-looking enough (esp. for women) or young enough, they're out. No such thing as eoe or protection against discrimination for whatever reason. All I'm saying is that the ADA does some good,although like many government regulatory regimes it may go too far in some areas.
Posted by: jim miller at November 29, 2005 10:06 AM
The biggest problem with the ADA is this: It does not establish standards for reasonable treatment of the disabled. Rather, it gives the disabled the right to try to establish such standards in court, with a strong presumption that the standards advocated by the disabled are the right ones. This pretty much eliminates any hope of a reasonable cost/benefit analysis.
Posted by: Kent at November 29, 2005 11:20 AM
I think it is less than accurate to use existing conditions in a Third World country as an example of what the U.S. would be without ADA. The U.S. was providing access and many jobs to its truly diabled before ADA.
The CATO Institute makes a very logical argument that ADA has hurt the employment chances of some it intended to help:
"The ADA may cause employer hostility towards the disabled. Before the ADA, many employers were inclined to hire handicapped individuals for jobs that would pose no major difficulties for them. Employers might reason that handicapped workers would be especially anxious to do good jobs, to prove themselves worthy of their tasks, to show that their disabilities are, in effect, no real handicap. McDonald's, for example, went out of its way before the enactment of the ADA to recruit mentally handicapped workers for its fast-food outlets."
"But under the ADA the employer is more likely to see a handicapped applicant as a lawsuit waiting to happen. If a handicapped worker does not receive regular raises or promotions, is criticized for unsatisfactory performance, or must be dismissed, the employer knows that the lawsuit remedy is an open and likely option for the employee."
As a small business owner, I can confirm that some employers' views about disabled employees have changed for the worse since ADA was enacted.
Edward Hudgins of the CATO Institute sums up my feelings about ADA better than I can express myself:
"The ADA is a classic example of well-intentioned legislation that was so poorly thought through that it is now, and likely in the future will be, a major source of lawsuits and unnecessary costs to the private and public sector. The definition of "disabled" includes so many individuals as to make a mockery of those who truly suffer handicaps. The definition of "reasonable accommodation" is anything but reasonable. The lack of flexibility adds needlessly to compliance costs when other, less costly options are available. The ADA is, in effect, a national building code, justified in the name of civil rights. And often the disabled reap few, if any, benefits from such costly efforts."
Here's the link to Hudgin's essay:
Posted by: JohnDewey at November 29, 2005 11:30 AM
I don't have any personal experience with the ada, but employment laws in general are making it very difficult to be an employer these days. I have to document every single time someone blows their nose. It is immensely difficult to fire a lazy person despite "at will employee" status. Too many well intentioned laws protect laziness.
Posted by: Rick at November 29, 2005 11:37 AM
There is a real and consistent fear of lasuits that effect a lot of decisions. Access to private land is less, doctors practice more defensive medicine. The effect is oppressive.
From a lot of arguments I've heard the actual consequences are less than the rumors and the more unreasonable verdicts are often reduced or thrown out, but some sort of system needs to be st up to give the public confidence.
Limiting the pain and suffering and emotional costs, directing punitive judgements to the state or some collective organization...
But also honesty from those who get sued. A lawyer once told me that he made his living because insurance companies simply refused to make a fast settlement of real costs and toss in a few thousand. Their price calculation is that most won't sue. Which seems to be correct. Estimates are that nearly half of malpractice sutis may be justified, but that the majority of victims of malpractice don't sue.
An article in Atlantic wrote of a VA hospital that reported all errors to patents and gave them the names of lawyers. Evidently the claims against it went up, but the total payments went down. Which is what we want, a system that gives reasonable payments to all victims and which is open enough to correct itself.
I don't see critics of the current tort system seriously trying to develop this. Their goal seems primarily the weakening and demonizing of lawyers. But it is my belief that one reason that juries give often outrageous verdicts is that they or friends and family have been victims of unfair or dishonest behavior and now they have a generalized chance to take revenge. If the non judical responses were considered fair then this would be reduced and my guess is many existing plantiffs would take it.
Years ago a friend of mine a Vietnamese refuge was broadsided by a woman coming out of a driveway. I called the woman's insurance agent and he gave reasons why they couldn't pay including the claim that alchohal was found in the car. Yes! The car of the woman who hit my friend. As soon as this guy figured I couldn't be bullied e settled for all costs and a couple thousand which statisfied my friend.
But if he hadn't had an American friend he would have been intimidated out of settlement (he was afraid of lawyers) and then years later when he got his citizenship he might be sitting in a jury.
Our institutions have a record of lying and trying to avoid responsibility. I don't mean all of them, but enough that it becomes a truism. Merck did it. They are responsible for being honest and making a fair response. Then lawyers will start to go away.
Posted by: patricia at November 29, 2005 11:59 AM
Look folks (i.e. Sampo), some of you are being way too hard on Dr. Hamilton. It makes it easy to see who (posting on this website) earns their bread and butter from the litigation industry.
Regarding the vioxx lawsuit and some of your collective anger at Merck, consider this:Robert Ernst died of an arrhythmia, not a myocardial infarction. To explain, an arrhythmia is a disruption of the normal electrical function of the heart while a myocardial infarction is a death of part of the heart muscle when a clot forms in one of the small arteries feeding blood to the heart muscle itself. A clot is always visible on autopsy. An arrhythmia is a rare but natural occurrence that increases in frequency as age increases. Yes, its shocking when it occurs in a younger person, but young people die every year of “sudden cardiac death due to an arrhythmia”. Vioxx (and all NSAIDS) have NEVER been shown to increase arrythmias. Vioxx was only suggested to increase the rate of myocardial infarctions, perhaps by playing some small effect on increasing the tendency of blood to clot.
Read a story of the Robert Ernst case here, and note that he died of an arrhythmia.
Now that we’ve established that the first lawsuit was based upon jury sympathy and not scientific facts, consider the following article.
The graph at the bottom is what’s important. Let me explain it to you. It demonstrates that almost every single NSAID, including over-the-counter medications like ibuprofen (i.e. motrin) and naproxen (i.e. Aleve) INCREASE THE RATE OF MYOCARDIAL INFARCTIONS!!! (For reference, Vioxx is also called Rofecoxib on the chart). Anyway, what I want to know if why, oh why, aren’t the makers of the other NSAID’s under attack as their medications are equally dangerous. If all of you whom are so anti-Merck are inherently logical, then you should push for the removal of all NSAID pain killers (i.e. ibuprofen) from the store shelves because they are just as DANGEROUS as the ill-fated Vioxx. While you’re at it, you should pull Tylenol too because many people die of liver failure from too much Tylenol every year too. Then, when you fall down and get a boo-boo, you can just wait for the pain to pass knowing that these dangerous meds are safely off the market, and the irresponsible companies shut down.
While you geniuses are at it, maybe you can outlaw dihydrogen monoxide while you’re at it.
It, too, causes many deaths each year. Of course, it’s also vitally necessary for life (because its another name for water), but that’s another matter.
Keep up the good work JDH.
Posted by: doc at November 29, 2005 02:26 PM
Considering that this board is devoted to economics one would expect that the problems of the tort system, and the problems with companies such as Merck could be analyzed on the basis of their economics.
First, the tort system is simply a product of the potential winnings from a law suit. Thousands of plantiff's fail to find "justice" in the system because there are only three basis for a plantiff's attorney to accept a case. The first is that the client is willing and able to pay the fees' of the attorney, the situation where a neighborhood dispute over a fence location between two millionaires results in a multi-year lawsuit. A divorce can be settled in two hours if there are no assets from which to pay fees.
The second case is where there is a favorable possibility of a judgement, and a defendant with the ability to pay. If you are responsible for a loss, but are broke, you are judgement proof. While it might seem that the practice of a personal injury lawyer is that of the extended trial with a brilliant presentation, the reality is that most of the money is made in attracting, and screening, potential plantiff's. In Merck's case, the actual trials are overhead. The attorney's are likely to invest as much as they earn on the cases that are tried, but the pay-off is getting a portion of the settlement for 1,000 cases.
This business can be profitable, because it may take many millions of dollars, and a dozen years, to get to the first payoff. Accordingly, only a few attorneys are in the position that they can recruit the potential clients with massive advertising and fund the development of the cases.
There are of course pro bono cases where an attorney accepts a sympathetic client. This may be because the attorney perceives a wrong that should be righted, or simply because the attorney believes that the press coverage will be worth the effort.
The reason the tort system exists is because we allow it to exist. It is impure, and there are some truly evil attorneys, but this is not unlike other occupations.
I find it interesting in the foregoing remarks the assumption that Merck is guilty. A studious group such as this should realize that the press is a terrific offensive weapon, and that a skiller personal injury lawyer will provides extensive information to the press. All reporters have sources. It is the interest of the sources that shapes the news.
The reality is that almost any utilitarian product has potential for harm from misuse. I have a bruised finger that is testimony to the mis-design of a hammer. In pharmacology, everyone wants a miracle, and common sense should tell us that if we injest something into our bodies that change its functions, that all of those changes may not be for the best. It took a generation for the horrors of thalidomide to be diagnosed, and yet the product remains useful to some. I would expect in any healthy business that there would be some staff that disagrees with any conclusion. Here, we are assuming that the fact that some within voiced concern as damning evidence of evil. If the organization was intent on deceit, such discension would not have been allowed.
Posted by: Bill Ellis at November 29, 2005 02:47 PM
I don't know how I ended up taking the side of the lawyers on this one, but Merck really did bring a lot of this on itself.
Vioxx has a worse cardiovascular side effect profile but a better stomach-related side-effect profile than other OTC painkillers. If the drug only went to people who didn't tolerate other OTC painkillers and no heart problems, they'd either be in the clear entirely, or at the very least looking at a much smaller liability.
But it didn't. It went to everyone. Merck spent a shitload of money to bring that about, and are now facing the adverse consequences. If you give a drug to someone, and they die, they're going to be pissed, and you're going to pay a lot of money. Even disregarding the cases where Vioxx is not clearly the culprit, there are still enough people in the "dead from Vioxx" category to cause Merck problems. It's not Dow Corning all over again.
Posted by: Anonymous at November 29, 2005 04:25 PM
A number of studies showed prblems. One at Kaiser indicated heart attacks tripling. The WSJ careerjournal cites it as a classic of bad management, claiming attempts to cover up the possible side effects rather than making them known to doctors and patients:
Posted by: patricia at November 29, 2005 05:47 PM
Um, Anonymous, did you bother to look at any of the links in my post two up from you?
You state that "If the drug only went to people who didn't (have) ... heart problems, they'd either be in the clear entirely"
However, from the link in my post, it clearly says that the Robert Ernst was otherwise healthy.
"He was fit and full of energy. He always seemed to see and look for the beauty in life. He had honed his body to run marathon races and triathlons."
For reasons I explained in my post, he was fit and healthy, and he died for a reason other than what Vioxx is being accused of contributing to. In other words, he died of an arrhythmia which is completely unrelated to a myocardial infarction. Vioxx is being accused of causing myocardial infarctions, not arrhythmias. If you know of any study demonstrating Vioxx causing arrythmias, please point me to it.
Yes, your statement "If you give a drug to someone, and they die, they're going to be pissed, and you're going to pay a lot of money." is true, but heart disease is the number one killer in America, and most folks who die of heart attacks (myocardial infarctions) will have any number of drugs in their system that likely didn't contribute to the event.
Secondly, you state "there are still enough people in the 'dead from Vioxx' category to cause Merck problems." Please explain why you continue to pick on Merck? If you had looked at the chart from the vascularweb.org link that I posted, you can clearly see that everyother drug listed there is still being sold, and NO ONE appears to be suing the manufactures of those medicines. Of that list, only rofecoxib (vioxx) has been removed from the market, but every other one is still available and is being sold every single day. Why aren't you leading the bandwagon to pull all of the drugs from the market? Why are you saying that Merck knew there was a problem, and hid it? That graph clearly demonstrates the EXACT SAME PROBLEM with every other drug on the list, but no one is looking to pull them? I would really appreciate if you could answer that question as to why you are selectively focusing on Merck as they are the only ones who have pulled their medicine from the market.
Posted by: doc at November 29, 2005 08:34 PM
You may be a medical doctor, but your grasp of logic is poor.
As I understand it, Merck is in trouble for covering up studies and not disclosing potential side effects to patients. The fact that other drugs are potentially equally harmful is not germane to this point, as long as their makers' give full disclosure. If you can prove they do not you have a point.
Your example of Mr Ernst is anecdotal. Even if true it does not invalidate any other potential claim against Merck a priori.
Posted by: Anonymous at November 30, 2005 03:09 AM
I have a blind brother and a blind cousin, both of whom have gotten far more help, financial and otherwise, than paraplegic people whom I rate as equally disabled. I have known some difficult and unreasonable blind people. I work in a County Hospital, not PA, where it is extremely difficult to fire an employee- it can take years. Therefore, my initial reaction was that you may be right. However, we canï¿½t tell from news reports whether this woman deserved to be fired.
I am with you on jury awards for pain and suffering. We Americans act as though governments and corporations have infinite resources. Jurors who vote for their state, city or national gov't to make a big award for pain and suffering should get a small increase in their taxes. The American Academy of Pediatrics now says that physicians should resuscitate premature newborns down to 400 grams unless parents donï¿½t want it. Few parents are in any condition to discuss resuscitation of their baby in the first hours after delivery- they can't make a rational decision unless they decide before delivery. Therefore, we resuscitate more and smaller babies- the cost doesnï¿½t matter because we might save a few who would otherwise die. Costs do matter. Americans who canï¿½t get proper care for ordinary problems like hypertension and diabetes because they arenï¿½t insured and have ï¿½pre-existing condtionsï¿½. This is a cruel and finite world. Our American legal system, on balance, makes it worse.
Itï¿½s better than fighting in the streets, but the OJ and Robert Blake trials show that the rich win. Governments protect those who put them in office, not ï¿½the peopleï¿½. We can do better. Canadians are more civilized.
Posted by: anciano at November 30, 2005 10:02 AM
I've taken a step back, and thought about the whole exchange. In retrospect, you are right in that it appears on the surface that Merck seems to have witheld information, and therefore must pay dearly.
One nice part about this forum is that you can get additional info not readily available.
Here's some additional facts for everyone's info.
If Mr. Ernst had perfect bloodpressure and cholesterol, his risk of having a myocardial infarction (MI) is 3/10,000 in any given year. If he had absolutely terrible cholesterol and bloodpressure, his risk would increase ten times to a rate of 33/10,000. OK, so assuming that vioxx increases the rate of an MI by 1.7 (or whatever), we'll just round it up to 2. If it doubled a person's risk, then taking the worst case scenario would increase the risk of having an MI to 66/10,000 if he was really unhealthy (which he wasn't), That means that he had an actual rate of 9934 out of 10,000 to have no problems whatsoever. We are not talking about vioxx causing MI's in 50% or even 1% of people who take it, but more like 0.03% or less.
I can see why Merck may not have believed its initial studies that vioxx increases its risk of having an MI because vioxx is, in essence, a more purified form of many medications that are already out on the market. Prior to vioxx, no one thought that taking Motrin or Aleve affected the heart in any way, and they had been on the market for what, 60 years? Vioxx works through the exact same mechanism of action, but in a more specified form, and if I was the scientist, I would hold publication until I had more data. When I heard that vioxx increased the rate of MI's, I just knew that is was going to be a class effect due to common mechanisms of action. Sure as heck, other studies have found just that fact.
I do apologize about getting a little worked up. Unfortunately, in my field, it has become increasingly clear that I have to spend more times worrying about events that are 3 or 4 decimal places to the right of zero (i.e. 0.001 and 0.0001). Yes, i know that heartburn is just heartburn, but I also know that 1/350 cases of heartburn are actually really cases of an impending MI, and need to order extra tests just to eval that possibility (hence, increasing the cost of medicine). After reading this blog, I see that I clearly need to increase my concern to effects on the order of 1/10,000 (a.k.a. 0.0001) as that is the order of the adverse effects of Vioxx on having an MI for which Merck is being held responsible to the tune of $254,000,000 for just the first of many cases.
Now, my sister-in-law is a big time lawyer, and I'm sure we will be going round and round at Christmastime again this year. She honestly believes that one can sue society into being a better place. I see the detrimental effects of being held responsible for unanticipated events that occur at a rate of 1 in 10,000 or 1 in 100,000, and its really helping to jack up the cost of medicine, which you all are complaining about.
I am just extrapolating my concerns such that when we pass peak oil production, I anticipate that most Americans assume that we can collectively sue the oil companies into producing more oil, which will only accelerate the formation of the creatively termed "demand destruction" when resources are diverted away from fixing the problem into trying to compensate people who think they were wronged. Either way, it doesn't really matter what I or you think as we will both get to see this play out before our eyes in the next 20 years. Enjoy the show.
Posted by: doc at November 30, 2005 10:32 AM
All of us are frustrated with the torty system as it now exists. Certainly many of us would be happy with a system that limited payments for pain and suffering
But I think we also want systems which acknowledge errors and make corrections and compensations. In terms of the medical system most of us feel through personal experience that doctors frequently cover up and hide error, their own and colleagues.
Also when doctors cite recent increased malpractice insurance as proof of a going problem, we know that either they are lying or should not be making so much to invest. A large part of recent increases were the hits insurance companies took when the stock market declined.
I don't feel that we can trust either side when those supposedly critical of lawyer's style imitae lawyer's in taking an adversarial position which selects facts to "win" rather than explore the issues in all of it's complexities.
We as a society do have serious problems with medicine. Why do we spend ovetr 30% on administration rather than the less than 20% other industrial countries do? Why do we spend over 18% of GNP rather than the usual 12% and get lower life expectancies and higher infant mortality?
Why do we have a situation where when a region has more specialists the number of special procedures goes up so that income approximates that in areas with a lower number, this isn't a market economy, this is the opposite, increased competition should bring prices down?
So your system isn't looking much better than the legal system, it's got lots of big problems.
Posted by: patricia at November 30, 2005 12:15 PM
My responses to Patricia's post:
"We as a society do have serious problems with medicine."
Yes, we do. Some of it is due to unfunded mandates by government such as ADA. Some of it is due to the fear of lawyers that leads to expensive defensive medical procedures. That fear is real, and lawyers are absolutely hated by medical professionals.
"Why do we spend ovetr 30% on administration rather than the less than 20% other industrial countries do?"
That's because we have both public and private health coverage, and a huge mess of documentation requirements for each. It's also due to all the lawyers we have in this country sitting around waiting for an overworked nurse to make a documentation error. My wife has been recruited by lawyers to help find those errors, so I'm not making that up.
"Why do we spend over 18% of GNP rather than the usual 12% and get lower life expectancies and higher infant mortality?"
Lower life expectancies have nothing to do with quality of medicine. That's what you seem to be implying, and that's an outrageous insult to the medical profession. Chief causes of lower U.S. life expectancy are: higher murder rate; poor nutrition; higher rates of smoking (vs France among others); higher incidence of AIDS; and lower exercise levels among the poor, who no longer even need to walk to the bank to deposit welfare and "disability" checks.
"So your system isn't looking much better than the legal system, it's got lots of big problems."
Patricia, I have seen surveys from the U.S., Britain, and Australia where citizens were asked to name the most respected professions. Every such poll I've seen showed doctors and nurses at or near the top. Lawyers in such polls are usually ranked close to the bottom, along with car salesmen, insurance brokers, and members of Congress or Parliament. It's clear to me that public support is not one of the problems shared by both professions.
Posted by: Anonymous at November 30, 2005 03:25 PM
That post at 3:25 - the response to Patricia, was mine.
Posted by: JohnDewey at November 30, 2005 03:26 PM
All right, I wasn't going to type anymore, but I am giving myself permission to break that promise this one time.
Patricia, I have given a lot of thought regarding "the system of medicine". I am part of a large group practice of multispecialists. I am a generalist and have seriously thought about how I might be able to make medicine more affordable in my sphere of influence. My only real chance would be to go out on my own where I could set my own prices. Here's the issue. Depending upon where I live, I would be shelling out between $10,000 and $60,000 yearly for malpractice insurance (double that if I caught babies). I could finagle some training to do extra procedures in my office that are now more-or-less in the realm of specialists (i.e. colonoscopy). I could also interpret my own x-rays, catch babies at the patient's home, and manage complex patients with a certain level of expertise. The problem is that if I interpret my own x-rays, I'll probably miss 5-10% of subtle, yet serious findings that a dedicated radiologist would catch. By attempting home births, I could probably achieve very good outcomes on about 80-90% of all births despite not being in a hospital setting. By doing something like a colonoscopy, I could probably achieve 95% accuracy as in the hands of a gastroenterologist specialist. I could get away with charging an estimated 70-85% less than the charges associated with procedures done at the hospital under the care of a specialist. However, as discussed above in this thread, even 98% good outcomes is about 2-3 levels of magnitude too high if you look at the standard that Merck is being held to (see my above posts). Did you notice that you never see any religious nuns doing patient care in their Catholic hospitals? The reason is that the mentality of lawsuits is pushing society to a belief in absolutely no margin for error in anything. To accomplish this, more positions are requiring certification to prove that such a person is qualified to do a given job. Now, one needs an RN degree to do the job that was being volunteered by nuns 50 years ago. The more that one demands certification and qualification, the more that everyone must pay. The same argument goes for teachers at private schools, etc.
So, while I could do a lot for people without much money, I would be sued out of buisness in about the first 6 months after one of the home births went bad. And, no, its not legal to ask people to sign a guarentee of agreeing not to sue as they never stand up in court.
However, I do intend to try and do what I've discussed above, but it will just be in another country where I don't have to worry about lawsuits.
OK, that's it for me.
Posted by: doc at November 30, 2005 05:00 PM
There is no question that the cost of malpractice settlements, and the propensity of "injured" patients to sue, is a problem in this country. However, it is not entirely fair to lay the blame at the feet of the lawyers and patients. A system under which individuals paid money into a pool that would be used to compensate injured patients, with funds to be allocated by panels of medical experts and ethicists as opposed to juries, would be vastly preferable to just about everyone involved. I sympathize with your problems and those of other doctors, and encourage you to work towards a solution that would allow adequate compensation for harmed patients and encourage the physician community to self-police.
With respect to the Merck-Vioxx cases, there is no question that a large number of the lawsuits that will be filed are baseless. However, one must (as you appear to have in one of your posts) acknowledge that Merck was overly aggressive in promoting the drug and downplaying the risks (training salespeople to dodge questions about safety) and assuming that Naproxen had cardioprotective features to dismiss concern that Vioxx caused problems.... A little disingenuous.
A question for you as a medical professional: given the price differential between Vioxx and ibuprofen, how would you determine which patients you would give Vioxx (were it still on the market)? Would it be based on GI side effect, where the data suggest there was some difference between the NSAIDs and selective Cox-2s, or on pain relief, where the placebo effect of receiving "the newest med" could easily explain any perceived improvement (since the clinical trials didn't establish a stagnificantly significant benefit)?
Question 2: Why would you prescribe someone Nexium instead of advising them to get Prilosec OTC?
I could go on, but my fingers are getting calloused
Posted by: Rational Actor at December 1, 2005 10:13 AM