Vested Interest - News and Notes - June 2004 Issue

Childhood Vaccines not Cause of Autism

An expert panel at the Institute of Medicine concluded that neither a mercury-based vaccine preservative nor early childhood vaccines are linked to a recent rise in autism rates. Critics of the report, mainly parents of autistic children who believe that vaccines contributed to the brain disorders, denounced the report as premature and skewed. One professor said more study of vaccines and autism simply diverts resources from what could be more promising research on the causes and possible cures for autism. Research suggests there has been a 10-fold increase in autism in the past decade, which critics claim coincides with an increased regimen of early childhood shots. It is unclear if there has been an actual increase or doctors have become more aggressive in diagnosis of the disorder. Proof may be if autism diagnoses drop now that the preservative thimerosal has been virtually eliminated in routine childhood vaccines. (Chicago Sun-Times – May 19, 2004)

Pfizer Admits: Drug a Fraud

Pfizer Inc., the world’s largest pharmaceutical firm, agreed to pay more than $430 million to settle criminal and civil charges that one of its divisions fraudulently marketed a popular drug, Neurontin, for unapproved uses. The company pleaded guilty to charges that its Warner-Lambert division engaged in a widespread, coordinated effort - offering kickbacks, one-sided education classes and free trips to the Olympics and to Florida - to encourage doctors to prescribe Neurontin for uses not approved by the Food and Drug Administration. The FDA has approved Neurontin only to treat epilepsy and shingles, but Warner-Lambert promoted it to treat a variety of psychiatric ailments (including bipolar disorder and attention deficit disorder), back pain, migraines and amyotrophic lateral sclerosis (Lou Gehrig’s disease), the Justice Department said. (ATLA Law News Digest – May 21, 2004)

California’s Governor Wants State to Pocket Punitives

California Gov. Arnold Schwarzenegger shocked the legal community with a proposal to have the state take 75 percent of all punitive damage awards. The proposal, buried in the governor’s 97-page summary of revisions to the state’s annual budget, would raise an estimated $450 million for the state’s general fund. Schwarzenegger is also seeking language that would make only one punitive damage award available for a given act. According to the governor’s proposal, "The award of the punitive damages, as intended to punish the defendant and set an example, should more appropriately be awarded to the state where it can be used for public good purposes that are consistent with the nature of the award." Plaintiffs lawyers expressed alarm. "The governor’s proposal, would, in my judgment, significantly immunize the type of conduct juries find to be despicable, and which should result in significant awards not only to punish the defendant for engaging in the conduct, but to deter that defendant and others who would engage in similar conduct," said James Sturdevant, president of the Consumer Attorneys of California. He added that there may also be "significant constitutional barriers" to the governor’s plan. (ATLA Law News Digest – May 21, 2004)

Attempt to Skirt Rules Blocked

Texas state insurance regulators have blocked, at least temporarily, an attempted end run around regulations by a medical malpractice insurance company. The ongoing fight between regulators and the company could become a test case for the effectiveness of new legislation designed to bring down soaring medical costs by lowering insurance rates for doctors and reducing the number of medical malpractice lawsuits. Although malpractice lawsuits have dropped since the law’s passage, rates have not followed suit. In October, G.E. Medical Protective Co., sometimes called MedPro, asked the Texas Department of Insurance to approve a 19 percent increase in the rates it charges doctors and dentists for insurance that protects their finances when they’ve been sued for negligence. Last month, the insurance department denied the request, saying the rate hike was "excessive." MedPro got around that opposition by moving its 7,000 Texas customers - 20 percent of the state’s physicians - into a risk-purchasing group. This type of insurance company structure, for many years, has not been regulated by the state. (ATLA Law News Digest – May 27, 2004)

New Code of Conduct in Medical Profession: First Do No Harm - To Your Colleagues

Medical malpractice trials involve competing accounts of expert witnesses. If doctors refuse to testify or are prevented from doing so for plaintiffs, lawsuits cannot go forward. In 14 states, a physician must verify that a lawsuit has merit before it can be filed, and it’s nearly impossible in most other states to advance to trial without an expert. At the federal level, the Supreme Court in the 1993 Daubert v. Merrell Dow Pharmaceuticals case toughened the standards for judges vetting expert witness testimony. That rule, which has been adopted by most states, represented a major victory for the American Medical Association, which filed a brief in support of stricter controls on expert witnesses, arguing that judges weren’t keeping "junk science" out of the courtroom. As the medical establishment has made tort "reform" - and restrictions on medical malpractice lawsuits - its top legislative priority, it has gone beyond seeking to limit who can testify as expert witnesses and taken steps to muzzle them altogether. Professional medical organizations have strongly discouraged members from testifying on behalf of plaintiffs. A new nonprofit organization, the Coalition and Center for Ethical Medical Testimony, or CCEMT, was set up to educate the public about what it terms "hired guns." The sum of these efforts is that doctors are finding their careers on the line for taking the witness stand. (ATLA Law News Digest – May 27, 2004)

Lawyers Confront Higher Rates for Legal Malpractice Insurance

Legal malpractice insurance rates are on the rise again, with some solo and small-firm lawyers facing rate hikes of up to 50 percent a year. The increase follows more than a half-decade of rate stability. (ATLA Law News Digest – May 27, 2004)

New IL Med Mal Carrier to Focus on Aggressive Tactics

The Professional Liability Insurance Company of America (PLICA), announced it now offers physicians in the Illinois malpractice market a professional liability insurance product that has been developed and designed to insulate physicians from exposure to frivolous claims by providing an aggressive defense against such claims while disposing early on of claims that show merit. "PLICA understands the current availability and affordability medical malpractice crisis confronting Illinois physicians and desires to work in partnership with our insureds to afford quality products and services at competitive pricing" said Howard B. Nathans, PLICA president and CEO. (Insurance Journal – June 8, 2004)