News Intelligence Analysis
From the New York Times
December 14, 2005
Editorial
The Stealth Liability Provision
Republicans are using the last days of this Congressional session
to try to grant extraordinary liability protection to the drug
companies that will make the vaccines and other medicines to
combat a possible influenza pandemic. But they have been slow
to mount a comparable effort to help the people who may be harmed
by adverse side effects.
Although liability protection is being portrayed as a vital step in carrying out the president's $7 billion flu pandemic plan, it serves a political purpose as well. The insulation against liability looks suspiciously like an effort to reward the drug companies, which help bankroll Republicans, and punish the trial lawyers, who help bankroll Democrats.
Some form of liability protection is clearly needed, if only to allay the concerns of drug company executives worried about lawsuits. We know how to provide sensible liability protection and have done so for routine childhood immunizations, and for the national swine flu vaccination campaign of 1976 and the smallpox vaccination effort two years ago. But each time individuals had a mechanism to seek compensation, and often, if warranted, the government could sue the manufacturers.
For a pandemic, however, Republican leaders would allow suits only if there was willful misconduct. The companies could be reckless or grossly negligent and escape responsibility. As for victims' compensation, the Republicans have been vague and secretive, but claim that they will produce a fair and robust compensation system. Their provision is expected to be attached to a defense appropriations bill that is now before a conference committee and, once approved, cannot be amended on the floor. The conferees ought to shun that provision and leave the complexities to fuller discussion early next year.
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