Dennis Quaid testified yesterday before the House Committee on Oversight and Government Reform considering the reversal of the Riegel v. Medtronic Supreme Court decision finding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for the medical device. Dennis Quaid told Congress on Wednesday that taking away the right to sue pharmaceutical companies would turn consumers into “uninformed and uncompensated lab rats.” Quaid emotionally described the near fatal drug mix-up in which his newborn twins were given 1,000 times the appropriate dose of Baxter’s blood thinner heparinin November at Cedars-Sinai Medical Center in Los Angeles.
Quaid has a lawsuit pending against Baxter for his twins’ heparin overdose. Medtronic v. Riegel does not bar his lawsuit but the Supreme Court will consider this Fall whether to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine. Congress has the ability to shut down all of this preemption talk by passing a bill negating Medtronic and Wyeth.
Apparently, Tom Davis from Virginia, the ranking Republican on the committee – fresh off his lovefest with Roger Clemens (any regrets on that one, Congressman?) – fell apart again, frozen by the presence of a star. He told Quaid that if this happened to his family, “I’d be suing everybody in sight.” Interesting admission. What does this tell us? I’m just curious, Congressman, do you think you should get access to the justice you would seek but deny others because you are rich, famous, powerful, or all of the above?
Reminiscent of my blog post earlier this week, Quaid also said he has changed his tune on tort reform after the near tragedy. “Like many Americans, I believed that a big problem in our country was frivolous lawsuits,” Quaid testified. “But now I know that the courts are often the only path to justice.” I think Quaid is confusing “frivolous lawsuits” with tort reform which are two incredibly different topics. But, whatever, I am glad he is with us now.
I also have twins that had health concerns when they were born, so I certainly sympathize with what Quaid and his family went through. But while I love his movies, particularly the sports movies like Any Given Sunday, The Rookie, and Everyone’s All-American (although it ran a little long), I’m not sure Quaid is exactly the right person to be the anti-preemption spokesman testifying before Congress. I believe people who are famous and/or powerful have every right to speak up and use their power and influence to further their causes. But when Congress puts its seal of approval on the notion fame alone entitles you to a seat at a table to which you would otherwise be uninvited, it makes me a little queasy, even if the witness is someone that I’m in complete agreement with on the issue.
Others did testify, including Georgetown University law professor David Vladeck who told the House Reform and Government Oversight Committee what I have been saying repeatedly on this blog: the FDA does not have the ability – regardless of resources – to make drug companies accountable on their own. Committee chairman, Henry Waxman underscored my other theme: if these companies have no liability, all the financial incentives will push them down the wrong path and an already problematic situation from a pubic health standpoint will multiply exponentially.
Again, as long as President Bush is in office, all of this is just preliminary but it is good to get the ball rolling toward putting the preemption defense back in the hole in which it belongs. 2013 Update: Nothing has changed. 🙁