We hear it all the time. People come into our office and say they are not the type of person who files a lawsuit. We tell them, it’s okay, you are an American and the courts are set up for citizens to find a remedy when they’ve truly been injured. It’s an American right.
It was an American right for the widow of Charles Riegel. The New York man died after a balloon catheter made by Medtronic burst in his chest after it was inserted during an angioplasty. She sued, but in February, the U.S. Supreme Court sided with Medtronic.
The reason is enough to scare everyone in this country. Since the medical device was approved by the FDA, the court decided that the states (in this case New York where the suit was filed) don’t have the right impose liability over a faulty product. In other words- the FDA is the final word on medical devices.
Now another issue is going before the Supreme Court and the business community will be watching this case hoping to use federal preemption, as it’s called, to short circuit product and drug liability.
A Vermont musician won $6.8 million during a jury trial against Wyeth after her arm was amputated because a Wyeth anti-nausea drug was injected. Wyeth wants to overturn the case so will ask for blanket immunity before the Supreme Court. The drug was approved by the FDA, after all.
All this is happening at a time when we are beginning to understand just how overwhelmed and underfunded the FDA is to do an adequate job to ensure safety.
The business community will be waiting, hoping to use that reasoning to short circuit hundreds of product liability and wrongful death claims filed against drug companies and medical device manufacturers.
The outcome of the Wyeth case may seal the fate for hundreds of other lawsuits, filed by people who are hurt.
Legislation is pending called the Medical Device Safety Act of 2008, that would overrule the Riegel decision, restoring the right for the injured to seek compensation from medical device manufacturers.
If you ever contact your Congressman or woman, this would be the issue that merits a call. It’s called HR 8381 and is sponsored by Rep. Henry Waxman and Frank Pallone.
It basically says that traditional state common-law remedies that the injured have always turned to should be restored, and that right doesn’t undermine the FDA’s powers to protect consumers.
Product liability lawsuits are intended to compensate people - the kind of people who are truly injured, the kind of people who tell us, “I’m not the sort of person who sues.” #
