Another reason to doubt Obamacare’s adequacy

By Hugh Hewitt

Avandia is a prescription medicine that treats diabetes. According to an Associated Press account of a Senate Finance Committee staff report released Saturday, the drug may have caused up to 83,000 heart attacks from 1999 to 2007.

Expect the cable ads to begin airing this week that encourage users of Avandia who suspect they may have been harmed to contact the law firm sponsoring the ad. Lots of them. Even more than those seeking sufferers of mesothelioma. (There is no worse way, really, to hire a law firm than via a television ad, but that’s a column for the future.)

Do a little math on the exposure now associated with Avandia. Imagine that the costs and damage associated with the average heart attack run about $10,000 — a very low estimate. What sort of liability is GlaxoSmithKline looking at when it’s summoned to the roulette table known as mass tort  litigation?

Given this headline and the scale of these numbers, it might be useful for the Republicans convening at the so-called Health Care Summit this week to put the looming Avandia avalanche of lawsuits at the center of the table and raise two huge issues illuminated by the controversy.

The GOP might first ask the president how the various schemes put forward by him, or the House or Senate, propose to dispose of the enormous costs associated with this drug — or, for that matter, any drug gone wrong.

GlaxoSmithKline will be absorbing heavy costs if the allegations are remotely true — or, even if untrue, believed by a significant number of juries — and those costs will have to be paid from somewhere.

The left will declare that the shareholders of GlaxoSmithKline ought to pay every cent of every judgment, and they will — at the cost of many jobs, new research and development, and breakthrough treatments — and then only to the limit beyond which bankruptcy lies. How can any proposal that doesn’t deal with such train wrecks purport to be “reform”?

A second and even more important set of questions flowing out of the Avandia report has to do with basic governmental competence. The Senate staff report concludes with an ominous warning about Big Pharma’s record of criminal sanctions in recent years and a demand for increased FDA diligence. If the staff report is correct and Avandia — an approved FDA drug — is crippling tens of thousands of patients, why are we considering giving government regulators more power over the health care system when we cannot even expect the lavishly funded FDA to police the drug industry and spot killer medications?

One answer is that the Senate staff report is a great deal of hyperbole put out in the service of an agenda of demonization of pharmaceutical companies that serves the interests of the mass tort bar. But it issues from the Senate Finance Committee, the same committee that did most of the work on Obamacare. So if we really don’t believe the staff report, why would we believe the same staff’s work on Obamacare?

And if we do believe the staff report, why are we asking a government health care bureaucracy that cannot even prevent mass victimization of the citizenry to take on even more responsibility over the people it so poorly serves?

The Avandia report arrives at exactly the right time to raise again the fundamental doubts about Obamacare just as the left is readying one last push to jam this disaster down our throats. If the federal government cannot spot killer drugs, it ought not be tasked with vastly expanded authority over our lives.

Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at www.hughhewitt.com.

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