[Editor's note: This story originally was published by Real Clear Health.]
By Vickie Yates Brown Glisson
Real Clear Health
In recent years, our television screens have been filled with alarming advertisements warning consumers about the dangers of certain products, devices, or services. These warnings, which are followed by a solicitation to contact a law firm that can assist in securing monetary damages, has become a multibillion-dollar business for those involved.
These commercials often make sweeping allegations of the potential harm that medications have allegedly caused to individuals. This confusion has led to a public health crisis as consumers, especially older Americans, do not have the educational background or knowledge to fully understand the very complex claims against these products and businesses. In some instances these ads have even caused patients to stop taking their medications, leading to severe issues such as strokes, blood clots, and even death.
It is clear the time has come to implement reforms of the tort system that filter out meritless lawsuits, improve protections for consumers and individuals who have been harmed, close abused legal loopholes, and improve the accuracy of legal awards.
The current judicial system allows class actions or large mass tort actions to be filed with relative ease. Oftentimes this means filing what the Wall Street Journal investigation characterized a “nearly identical complaints in rapid succession, with just a few paragraphs changed about each plaintiff, giving defendants little to go on to gauge the legitimacy of any given case.” Some commentators point to the fact that since there is such a low standard for filing cases, nearly one-third of the plaintiffs do not meet the criteria necessary to collect any settlement money at the conclusion of some of these cases. This not only contributes to growing court backlogs, but it also detracts from more pressing legal matters at hand.
While companies should be held accountable for product safety or negligence, many find themselves bombarded with broad, inflammatory accusations that can create a massive public relations nightmare. The big business of tort lawsuits has encouraged the development of an ecosystem to support such legal actions through outside experts, marketing agencies, and non-profit organizations that can be leveraged to promote high-profile cases. Even though their products may not have been found to cause harm, these pressure campaigns often create an environment where corporations are forced to pay large sums of settlement money just to end the public attacks.
Reasoned and sensible tort reform is urgently needed to reinstate and preserve trust in the legal system and protect consumers who have been harmed, but also assure businesses will not be the targets of unsubstantiated attacks. Like any legal reform, fixing our current tort system will take time, and other measures may need to be enacted in the interim.
As a promising first step, some states have implemented tort reforms, particularly in medical malpractice. These often entail a requirement that such cases be reviewed and assessed by a panel of experts who are peers to determine if malpractice has been committed and if a patient has been harmed. The findings, which are admissible in court and completed before a case moves forward, help to discourage potential legal actions that are not based on credible information. State legislatures should consider expanding such reviews to cover mass tort litigation more broadly as well as pairing such findings with liability recommendations from qualified experts. Congress should also follow suit.
Absent broader federal action, some companies facing mass tort litigation have resorted to novel legal strategies in an attempt to defend themselves. One notable tactic, known as the Texas Two-Step, was recently used by a major pharmaceutical company to end over a decade of litigation against them. This allowed the company to transfer the legal liability they were facing from unsubstantiated litigation claims into a separate subsidiary which then declared bankruptcy transferring these cases under the jurisdiction of bankruptcy courts instead of civil courts.
For those companies struggling with such claims, including medical innovators, this strategy is enticing to ensure they can continue to operate. Predictably, some in the media and public office have expressed outrage against this strategy, but this detracts from the fact that it is time to change the dynamic. Bold new thinking is required.
We need to protect vulnerable Americans and companies, as well as the integrity of our legal system. Otherwise, America’s dynamic economy and the trust that people place in our country’s rule of law will be eroded. We need sensible tort reform and new measures to address this systemic problem.
Vickie Yates Brown Glisson is the former Kentucky Secretary of the Cabinet for Health and Family Services and a nationally recognized health lawyer.
[Editor's note: This story originally was published by Real Clear Health.]
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