A SUPREME TEST OF PATIENTS' RIGHTS

TOMORROW IS ELECTION DAY IN AMERICA, but the truth is that the shadow of the Bush legacy could resonate for years, if not decades. This is particularly evident in healthcare policy, where President Bush has aggressively sided with big business over patient’s rights time and again.

When the President battled John Kerry in 2004, one of the battle cries repeatedly espoused throughout the campaign was that “trial lawyers” were the marquee offenders in what had become an overly litigious society. Opportunistic Trial Lawyers, they opined, were the reason why healthcare costs were out of control. As the President decried “junk lawsuits,” however, his real aim was to insulate major pharmaceutical companies from lawsuits — and to distance consumers from their day in court — if an approved drug harmed them.

President Bush proposed setting, in his words, "a hard cap of $250,000" on physical and emotional pain and suffering. Then he went one step further — and pushed legislation designed to exonerate drug companies from ANY liability whatsoever for drugs which harmed Americans. “Since the Food and Drug Administration already approved the drugs as “safe and effective,” he reasoned, "they should be immune from lawsuits."

Journalist Jane Akre, a veteran of radio, local TV news and even CNN, has seen all of this before, and now she is reporting on some of the blowback from the Bush policies. Akre has earned kudos as one of the nation’s most admired journalists for her expose’ on Monsanto’s rBgh — the synthetic growth hormones used in cows — and for her refusal to change the facts of her investigative series that were unfavorable to Monsanto. She was summarily fired by Fox because of her journalistic integrity and has endured a series of expensive and career threatening lawsuits (see my blog entry “Is Media Your Servant?” for the details of that dramatic story).

Ah, but you can’t keep a good woman down, as the saying goes.

Akre is again in the midst of some sterling reporting about corporate protectionism and how it has afftected the lives of real people. As News Editor of the National News Desk, Jane featured an interview with musician Diana Levine, a woman whose case appears before the U.S. Supreme Court today. The case, brought forth by pharmaceutical giant Wyeth, “will test whether corporations have blanket immunity from lawsuits when their product is approved by the government,” including the FDA, according to Akre.

In April 2000, Ms. Levine went the emergency room of a local hospital for treatment of a migraine. “In addition to a medication to treat the migraine she was given another medication called Phenergan made by Wyeth to stop the nausea,” reports Akre. Today, Akre writes, “she wishes she had stuck with the nausea.” Tragically, Levine acquired gangrene as a side effect of the way the drug was administered and while in the hospital, doctors removed her hand. “In a second procedure,” Akre continues, “they took the right arm up to below the elbow. She has a prosthetic arm now, but making music became difficult if not impossible.”

According to Dr. Carolyn Dean, an MD who appeared in my film WE BECOME SILENT, over two million patients suffer adverse reactions to pharmaceutical medicines in hospital-based settings annually — and often suffer serious consequences like Ms. Levine’s. In Dr. Dean’s stellar book, DEATH BY MODERN MEDICINE, she exposed the fact that over 780,000 Americans die each year from iatrogenic — or “doctor-caused” treatments. This is, incidentally, a far greater number than has been reported on by the mainstream media, which repeatedly insists that the number is between “40,000 – 100,000 iatrogenic deaths annually.”

So today, the Supreme Court is set to decide whether Wyeth has any culpability in the wake of Diana Levine’s tragic circumstances, even though it is widely agreed that the anti-nausea drug Phenergan, which she was given intravenously, was indeed responsible for Levine losing her hand and half of her arm.

According to the Associated Press, several justices indicated that if the FDA “had clear information about the risks of Wyeth Pharmaceuticals' anti-nausea drug Phenergan” — and approved its warning label anyway — then Wyeth “would probably prevail in its court fight against Diana Levine.”

For the nation, Wyeth's appeal of a $6.7 million verdict Levine won from a Vermont state jury has far reaching consequences. Backed by the Bush administration, Wyeth argued that "once a drug's warning label gets FDA approval, consumers cannot pursue state law claims that they were harmed.”

For those of us who know how endemic corruption at the FDA has become, the prospect of a Supreme Court victory for Wyeth is a chilling one indeed.

Thus, on the eve of one of the most important elections in U.S. history, an equally monumental decision regarding patients' rights will be made in the next 24 hours in the highest court in the land. And President Bush, arguably the most unpopular President in history, may well secure what he wanted all along: to insulate the petrochemical companies from consumer lawsuits and leave more Americans to wonder what his legacy has wrought.