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Joanne Doroshow | Legislative Malpractice    [

    Vaccine Makers Helped Write Frist-Backed Shield Law
    By Bill Theobald
    The Tennessean

    Monday 08 May 2006

E-mails reveal private meetings.

    Washington - Vaccine industry officials helped shape legislation behind the scenes that Senate Majority Leader Bill Frist secretly amended into a bill to shield them from lawsuits, according to e-mails obtained by a public advocacy group.

    E-mails and documents written by a trade group for the vaccine-makers show the organization met privately with Frist's staff and the White House about measures that would give the industry protection from lawsuits filed by people hurt by the vaccines.

    The communications were made public in a report released this week by the group Public Citizen. Its study follows a February story in The Tennessean that Frist, along with House Speaker Dennis Hastert, R-Ill., ordered the vaccine liability language inserted in a defense spending bill in December without debate and in violation of usual Senate practice.

    The group, called the Biotechnology Industry Organization, wanted such language in the bill, the e-mails reflect.

    "At Senator Frist's staff's request, this morning, BIO (Tom and I) participated in a meeting with three other industry representatives (Sanofi and an outside counsel who works for both Pfizer and Roche, I believe), administration staff (HHS, DoJ and WH Leg Affairs), and Liz Hall to further discuss liability," BIO official Dave Boyer wrote in a November e-mail obtained by Public Citizen.

    In a written statement, Frist spokeswoman Amy Call stated that the senator had promised publicly to include the vaccine liability protection in the defense spending bill. She did not address the issue of the influence of industry lobbyists.

    The statement points out that the Public Citizen board includes prominent trial lawyers and liberals. "Trial lawyers oppose these provisions because it will strip them of the ability to line their pockets at the expense of the American public," Call said.

    Frist and the White House reached out to the industry, according to the communications cited by Public Citizen, and Boyer, chief lobbyist for the industry group, was asked to provide an analysis of draft legislation.

    The group asked that the legislation make clear that a vaccine maker could only be successfully sued if "willful misconduct" on its part were proved. The law includes that standard and says a company is protected from claims of negligence or recklessness.

    The analysis, which Public Citizen quoted from, included BIO's concerns that the draft bill would have still allowed people hurt by vaccines to get jury trials.

    "The lack of any restriction on jury trial is problematic," the analysis said. "Where injured parties have no other avenue for relief, juries are likely to find ways to award damages."

    In another e-mail, Boyer described a meeting in which a deputy of Bush strategist Karl Rove said it was "important to the President that a bill move this year," and said "they had invited industry to discuss what they understood to be a few key remaining points" of contention.

    "The intimacy of this, we think, is quite unusual," said Joan Claybrook, president of Public Citizen, about the relationship between the organization's lobbyists, Frist and the Bush administration. "We think it is an interesting case study of how the inside operation works in Washington."

    In a January interview with The Tennessean, Frist denied the vaccine liability provisions were added improperly. Later, when others challenged his version of events, Call simply restated Frist's commitment to protecting people from a bioterror emergency.

    Frist and other backers say the law is needed to boost the number of vaccine makers. Vaccine shortages during last year's flu season along with fears of a pandemic of bird flu or a bioterror attack have prompted interest in building up the country's lagging vaccine industry. The legal protections kick in only when the secretary of health and human services declares a public health emergency.

    Alan Eisenberg, executive vice president for the Biotechnology Industry Organization, said the group's "staff acted with the utmost integrity and professionalism, as they do on all issues."

    "BIO staff regularly comment on proposed legislation from, and meet with, Democrat and Republican lawmakers and their staffs alike all the time," Eisenberg said.

 

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    Go to Original

    Legislative Malpractice
    By Joanne Doroshow
    TomPaine.com

    Monday 08 May 2006

    The headlines may have shifted to gas prices, immigration, Iraq, Iran, corruption and a host of other important concerns, but health care remains the most pressing problems for most Americans today. Forty one percent of Americans are now without health insurance, the Commonwealth Fund announced last week.

    With health care in such crisis, the U.S. Senate might be commended for declaring this week as "Health Week." In fact, one might hope such a declaration would lead to serious consideration of legislation to actually address the public health emergency in which we find ourselves. But then again.

    Senate leadership has announced that a key element of "Health Week" will be scheduling votes on two bills that would take away the legal rights of patients injured or killed by medical malpractices. One bill is so broad it would even cover seniors abused and neglected in nursing homes. The other bill would cruelly limit the rights only of pregnant women and babies. Both contain severe "caps," or limits on the ability of patients injured by gross negligence to be compensated.

    Since 2003, Senate Majority Leader Bill Frist has forced votes on similar bills three times, each time resulting in stunning defeat. In no case has there been a single hearing, mark up, committee debate or anything close to careful consideration. In fact, Sen. Frist has bypassed the committee process entirely every time, introducing the bills with little notice before senators were asked to vote. The same is true this year.

    Ironically, this effort comes at a time when medical malpractice claims are down and insurance premiums for doctors have leveled off. Claims and premiums amount to only about 1 percent of total health care costs. Meanwhile, up to 98,000 people are dying each year due to malpractice in hospitals. About 5 percent of doctors are causing most of this harm, but little is done to sanction them. What's more, repeated research shows that such bills will do nothing to help doctors with their insurance problems-let alone patients with theirs. Only directly addressing the economic practices of the insurance industry will do that.

    These bills are DOA and one can only speculate about Frist's political motives for continuing to resuscitate them. Clearly, the insurance and healthcare industries are pushing hard-and they are major political contributors, with elections are just around the corner. Not to be forgotten is Senator Frist's personal connection to this story. His family's fortunes are closely tied to the largest for-profit hospital chain in America, Hospital Corporation of America (HCA), and the insurance company it owns, HCI. Both would benefit tremendously from these bills.

    Whatever the political reason behind this effort, one thing is sure. They will be defeated because Americans reject the notion of a "one size fits all" cap on compensation for those who have been hurt. The public does not believe that a child who suffers brain injury should be treated like a senior citizen abused in a nursing home, or as a dad who is blinded or as a mother who loses a child. Where there is gross negligence, the public believes juries can decide compensation in such cases better than a politician in Washington, DC.

    Fixing our healthcare system is no easy job. But trying to address this critical problem with legislation that does little more than take dollars away from injured patients-and puts them into the pockets of insurance companies-is legislative malpractice.

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    Joanne Doroshow is the executive director of the Center for Justice & Democracy.

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