Courts need to 'red flag' medical cases

By Dr. PAUL OFFIT
KNIGHT RIDDER/TRIBUNE
PHILADELPHIA -- Earlier this year in an away game against the Dallas Cowboys, Eagles' coach Andy Reid disagreed with an official's ruling that one of his players had fumbled the ball.
Reid pulled a red flag from his back pocket and flung it onto the field, forcing the officials to review a videotape. After three officials studied various camera angles, the lead official upheld the initial ruling, telling the crowd that "the player lost control of the football before his knee touched the ground." Although not all were happy, almost everyone conceded the call was the correct one and the game continued.
If the NFL challenge system were run by the courts, events would have played out differently. Reid would have thrown his flag onto the field. The officials would then select 12 people to look at the videotape.
Because most people attending the game have an interest in the outcome (they were Cowboys' fans), they would not be allowed to review the play.
Indeed, any football fan -- because of some rooting interest in a particular team -- would not be allowed to judge. No, in the interest of creating an unbiased group of jurors, only people with no interest in or knowledge of football would be allowed to decide. Lawyers representing both teams would argue the case, each biasing their own experts by paying for them.
When the trial was over, jurors would explain their verdicts by first saying "I don't know anything about football, but ..."
Few football fans would accept this. Yet we're perfectly willing to accept this scenario when it comes to complex questions about pharmaceutical products and medical wrongdoing. Jurors, without any knowledge in these fields, are specifically asked to determine their validity. They often explain their verdicts by first saying "The science was way over my head, but ..."
The NFL isn't the only group that has established a logical process for deciding complex, highly technical matters.
In the late 1970s and early 1980s, frivolous lawsuits almost eliminated vaccines in the United States. Because vaccines are vital to the public's health, the federal government stepped in and created the National Childhood Vaccine Injury Act (NCVIA) -- a model for tort reform.
Now all vaccines include a federal excise tax of $0.75. The money from the tax goes into a pool designed to compensate children hurt by vaccines quickly, generously and fairly. If a parent feels that their child suffered harm from a vaccine, they would submit their claim to vaccine court.
Informed opinion
Vaccine court -- which consists of scientists, epidemiologists, and clinicians with a wealth of knowledge about vaccines -- reviews all relevant studies and renders an informed opinion. And the best part is that those affiliated with vaccine court don't begin their explanations with statements like "I don't know anything about vaccines, but ..."
Not surprisingly, plaintiff's lawyers don't like "vaccine court."
Currently, personal-injury lawyers claiming that mercury-containing preservatives in vaccines caused autism have exposed a weakness in the program by taking their case directly to juries.
Given that four large epidemiologic studies refute their claim, lawyers know that they have a better chance to convince jurors unfamiliar with scientific studies than experts that know the data.
Vaccine court has also become part of the debate about pandemic flu preparedness. Republicans and Democrats are now arguing about whether influenza vaccine made in advance of the next pandemic should be covered in a manner similar to the way that other vaccines are covered by the NCVIA.
One Democratic senator recently said "We don't need to throw out important consumer protections to address problems in our vaccine supply." The senator -- believing that the interests of society are best served by personal-injury lawyers and jurors -- apparently has learned nothing from vaccine court, history, or the NFL.
X Paul A. Offit, MD is the chief of Infectious Diseases at the Children's Hospital of Philadelphia and the author of the book "The Cutter Incident: How America's First Polio Vaccine Led to the Growing Vaccine Crisis." Distributed by Knight Ridder/Tribune Information Services.