Contrary to the facts, plaintiff personal-injury lawyers suing pharmaceutical or medical device manufacturers almost universally allege corporate greed and indifference to patient well-being as the themes of their cases. This approach resonates with an American public rooting for the underdog, where film and media sensationalize the legal dispute as equivalent to David versus Goliath. Trendy, one-sided documentaries, lawsuit advertisements made to look like “breaking news” about “defective” products, and other ratings-seeking journalism make it even easier to capitalize on these cultural sentiments and prime would-be jurors on the false big-pharma-versus-naïve-patient narrative. But the real story of big-money incentives and indifference to patient well-being is not being told—until now.
Litigation-Driven Medical Care
In the past several years, courts, defense lawyers and journalists have begun shining the spotlight on companies that market and finance lawsuits to unsuspecting women. These companies and lawyers not only encourage women to sue, they sometimes encourage—and finance—unnecessary, risky medical care to inflate the alleged damages in a case. Although these companies, the lawyers whose lawsuits they finance, and the doctors with whom they work are fiercely protective of their financial arrangements, one thing is clear: the more “valuable” the case, the more money the lawyers, doctors and financers stand to make. One article described a lawyer’s counsel encouraging his client to have a removal procedure by telling the client, “Defendants have offered next to nothing to settle cases involving mesh products that have not been removed.” In other words, more treatments, surgeries or procedures equals greater lawsuit payouts.
A story detailed in the New York Times illustrates the consequences of these incentives for certain women. Jerri Plummer, a 49-year-old Arkansas woman, received an unsolicited call from a person who told her that her vaginal mesh was defective and needed to be removed. “If [she] didn’t act quickly, the caller urged, she might die,” Plummer was reportedly told. Within a few days, Plummer was flown to a medical office in a shopping mall in Orlando, Florida, where the mesh was removed by a doctor she met minutes before the procedure. She then suffered complications from the surgery—including swollen legs, stomach pain and incontinence—only to find out from her primary care physician that the surgery had been unnecessary and the damage it caused irreversible. Plummer never learned who the anonymous caller was and how the person knew so much about her medical history.
Vaginal mesh litigation seems to have spawned the most questionable practices, but it is by no means the only litigation in which third parties are financing surgeries or other medical care. A quick Google search, for example, reveals dozens of websites advertising surgical funding for mass tort plaintiffs with hip implants or filters, as well as one-off cases involving auto accidents or slip and falls. The plaintiff’s lawyer, financer and doctor incentives to make money put patient well-being in the back seat as they encourage risky medical care—regardless of the product at issue. Meanwhile, in the courtroom, plaintiff’s lawyers paint an unfair picture of companies who make products that, although not risk-free, improve the lives of millions.
Women Stand to Lose the Most from Litigation-Driven Medical Care
Women—and their health—have, unfortunately, been most affected by those who target pharmaceutical and medical device manufacturers in litigation. Today, most of the biggest mass-tort lawsuits focus primarily on women’s health issues. Historically, it is difficult to identify a women’s health product that plaintiff’s lawyers have not targeted in mass litigation. Why is women’s health so often the target? One explanation is that because women have substantially more interaction with the healthcare system than men (because of the demands of pregnancy and avoiding pregnancy), they are more likely to have a claim. But another is that the often sensitive nature of the alleged injuries fit plaintiff’s lawyers’ theme of companies victimizing patients.
Women are not victims. They are capable of making informed medical decisions through their healthcare providers. The recent #MeToo cultural reckoning could stand as a new opportunity for plaintiff’s lawyers to expand the false narrative of company greed and patient indifference—particularly to women. No doubt the lawsuit target on women’s health will remain and may only expand. With so much money to be made by lawyers and litigation financers, the potential for risky, unnecessary medical care to women is exponential. Thus—now more than ever—lawyers defending manufacturers must reclaim the moral high ground of valid public health interests.
Manufacturers Should Expose Litigation-Driven Medical Care
The defense bar seems to agree that the best way to curb the negative incentives and consequences of litigation-driven medical care is to expose it. Some defendants have been successful at entering into evidence at trial the financial agreements between doctors and financers. On a case-by-case basis, this may prove to be effective. Others, however, have sought more global solutions and lobbied the Advisory Committee on Civil Rules for uniform changes requiring disclosure of such agreements.
Whatever the mechanism, exposing litigation-driven medical care and those that finance it is essential and will no doubt be met with fierce opposition. Thus, crafting the winning strategy will require the collective creativity of the defense bar and the clients that they represent.