15 JULY 1995, Page 11


Theodore Dalrymple argues that the American contingency

fee system and British legal aid are combining to remove valuable medical treatment from those who need it

Man is born immortal, but everywhere he dies.

THE AZANDE of the Sudan and Middle Americans solve this curious paradox in precisely the same manner: by believing in unseen malign forces. According to the Azande, it is the witchcraft of ill-disposed neighbours which procures their untimely end; according to Middle Americans, it is environmental pollutants which cause their unjust demise. The biggest difference between the Azande and the Ameri- cans is the law of tort: the Azande resort to witch doctors, the Americans to lawyers.

It brings a certain comfort (never mind the hope of compensation) to know that death does not strike at ran- dom, but only as a result of human wrongdoing: for surely an end brought about by malevolence — or at least negligence — is preferable to a merely meaningless one. To know that no one dies but by the witchcraft of neigh- bours or by the effects of the chemi- cals emitted by vast corporations hell-bent on profits for their share- holders and huge bonuses for their senior management, not only draws the sting from million-murdering death, but gives us hope that one day, if only the right spell or regulatory procedure is found, Man will be restored to his natural state of immor- tality.

No doubt money is an inadequate recompense for the loss of infinite longevity, but it is better than nothing, especially when the risk of death is actually very small, which explains why the merest hint in the scientific press that a gas, chemical, drug or invisible ray is harmful to health is sufficient in the United States to set off lawsuits costing millions. Moreover, the fact that such suits are only intermittently successful is a powerful inducement in itself to continue them, for it has been conclusively demonstrated that, in the conditioning of laboratory rats, an intermittent schedule of reward is more Powerfully effective than an invariably rewarding one. There have been cases in history in which the hope of compensation has resul- ted in the propagation of scientific theories — or at least in their persistence when they might otherwise have been forgotten — rather than the other way round. The idea that cancer could result from a single trau- matic blow, for example, was kept alive earlier this century, both in America and Germany, by the possibility of compensa- tion under the workmen's compensation scheme. An otherwise dubious theory sur- vived long after it was scientifically impro- bable, resuscitated time and again by the inertia of legal precedent.

But these early cases pale into insignifi- cance, financially speaking, compared with latter-day ones. The latest in a long and inglorious series is that brought by Ameri- can — and some British — women who had silicone breast implants which were manufactured by the Dow Corning Corpo- ration. There have been reports that these implants sometimes provoke auto-immune diseases such as rheumatoid arthritis and scleroderma in those who have received them. These reports have not been con- firmed, and a large study in the latest issue of the New England Journal of Medicine found no association between breast implants and auto-immune diseases. Indeed, women who had such implants seemed less likely to suffer from these dis- eases, though this was probably a chance finding. Nevertheless, a legal action on the basis of a mere scientific rumour (for that in the end is what it amounts to) has driven a large corpo- ration into a form of bankruptcy: win or lose, the cost of the action is too great for it to bear.

It so happens that another sub- sidiary of the Dow Chemical Compa- ny, Merrell Dow, was embroiled not long ago in litigation in which provi- sional and unfounded allegations con- cerning the side effects of a drug manufactured by the company served as the basis for a claim for enormous sums of money.

The drug was called Bendectin (Debendox in the United Kingdom). It was introduced on to the market in 1956, and used successfully to control the morning sickness of pregnancy. Then in 1969 there was a report from Canada that there was an association between its use in pregnancy and limb deformities in the foetus. Then there were further reports, including some from Britain. Animal experiments, in which pregnant laboratory rats and rabbits were given doses of the drug sufficient to kill a high proportion of them, demonstrated a teratogenic — deforming — effect. The relevance of these experi- ments to humans was uncertain: the doses needed to produce this effect were much higher than the suggested therapeutic dose and, in any case, all appearances to the contrary notwithstanding, man is neither a rat nor a rabbit.

Later, it was revealed that one of the investigators, Dr W.G. McBride, the Aus- tralian gynaecologist who had shot to world fame when he discovered the deforming effects of thalidomide taken in pregnancy, had obtained his experimental results on the drug by scientific fraud — later justify- ing himself by claiming he believed it to have been in the public interest. Neverthe- less, these experimental findings were grist to the mill of litigation.

By 1983, it was estimated that 30 million pregnant women had taken Bendectin. Since at least 3 per cent of children are born with a congenital malformation of one kind or another, one would expect nearly a million infants who were exposed to the drug to be born deformed. Limb defects are rarer, but nevertheless 10,000 such cases among women who had taken Ben- dectin would have been expected through 4hance alone.

The problem was therefore to demon- strate that the number of deformed babies who had been exposed to Bendectin during gestation was greater than would have been expected if the mothers had not taken the drug. This was not an easy thing to do: among other difficulties, people who have had an adverse experience remember more antecedent events than those who have not. This is known as recall bias, and has to be taken into account in retrospective studies.

When prospective studies were per- formed, however (to examine the question of whether pregnant women now taking Bendectin would have deformed babies in the future, rather than the question of whether women who had taken it in the past had given birth to deformed babies), no association was found. A scientific con- sensus eventually emerged that, insofar as it is ever possible to prove a negative, Ben- dectin is safe to take in pregnancy. Of course, it is always possible that further study will reveal hitherto undiscovered effects: but that is true of every substance known to man.

None of this deterred the litigants and their lawyers. About 1,100 women started a class action against Merrell Dow. The com- pany offered $120 million to settle the mat- ter, even though it believed itself to be innocent of any wrongdoing, but the liti- gants and their lawyers were so greedy that they insisted upon the right of individuals to sue separately none the less. The compa- ny withdrew the offer and individual law- suits went ahead.

Merrell Dow won every single case, though not without considerable trouble. The fact that one court found there to be no scientific evidence for the harmfulness of Bendectin did not inhibit another court from finding the opposite, and awarding two plaintiffs the sum of $95 million, including $75 million in punitive damages. This judgment was overturned at appeal, but such had been the publicity about Ben- dectin (and the expense involved in justify- ing its marketing) that Merrell Dow stopped making it, and a drug of some pos- sible usefulness — and safety — was denied the world for ever.

It seems to me that even if after exten- sive research Bendectin had been found to produce some harm, the company would still not necessarily have been to blame. For no amount of due care before distribu- tion can ensure that a drug is perfectly safe, and only if the company has been careless or dishonest can it be held responsible. The only way to avoid risk in this world is to be dead.

The Bendectin saga is far from the only one of the genre. To choose another, not quite at random: that of weak magnetic fields, caused by the proximity of electric currents, and their supposed connection with cancer. For obvious reasons, such a connection would be difficult to prove, unless it were a very strong one, which not even its proponents claim. There are so many variables to consider that method- ological problems are almost bound to overshadow the substantive point at issue: whether or not there is a small, not to say tiny, increase in the susceptibility to cancer of those who live in weak magnetic fields caused by electric currents. In any case, the immense labours which have so far gone into proving (or disproving) such a tenuous link, when there are so many more signifi- cant medical and. social problems to be solved, puts me in mind of the old Rumani- an proverb: the whole village is on fire, but Grandmother wants to finish combing her hair.

Lawyers rush in where scientists fear to tread, and some of them managed to pro- cure a very startling judgment from a Cali- fornia court. An electricity supply company proposed to put a high-tension wire over some privately owned land. The landowner was awarded $1,035,000 (plus costs) in compensation — not because there was an actual link between high-tension wires and cancer, but because there was a widespread public fear of such a link, which reduced the resale value of the land. The fear did not even have to be a reasonable one based upon scientific likelihood, the judge stated; and his award was upheld at appeal.

`Prison's all soft drugs and television and that's just what I'm in for ...' Well, that's California for you, you might say. However, I should not be too sure of it. The legal doctrine in this country is already that the psychological distress con- sequent upon an accident is as much wor- thy of compensation as the physical injury, and that the emotional fragility of the per- son injured is not to be taken into account when calculating the compensation: you must take injured people as you find them, not as it would have been reasonable or desirable for them to have been. At a stroke, therefore, the law has removed from our weaker brethren whatever slight motive for resilience they might have had. How long, then, is it before fear, an unpleasant emotion even when unjustified, becomes actionable?

Moreover, it is a truth universally acknowledged that the English have lost all capacity to think for themselves, and have to import their thoughts from across the Atlantic. And lest anyone be inclined to complacency, and murmur that at least we do not have the contingency fee system here which so inflames litigiousness in America, let me assure them that the legal aid system as currently operated in this country is not exactly a deterrent to specu- lative and even frivolous litigation. Neither the plaintiff nor his lawyer has anything to lose by pursuing legal action: far from being like a gamble, taking such action is more like being the owner of the casino.

Easy access to legal redress is often pre- sented (largely by those who profit from it) as being the only way the Little. Man can defend himself and his interests against the Big Man and his interests. In practice, this is rarely the case; but even if it were true, it rests upon what seems to me a sentimental and therefore dishonest view of life.

Of course the Big Man and the Big Cor- poration often behave as they shouldn't; and of course there should be redress if they do. But the Rousseauesque supposi- tion that the Little Man is somehow better than the Big Man is false. After all, most Big Men started out as Little Men; and my observation of the Little Man around the world leads me to conclude — forgive me if this sounds cynical — that he is precisely as mean, avaricious, spiteful and deceitful as the Big Man is.

lithe Little Man thinks he will be awar- ded lottery-size sums for having suffered headaches, he will gladly suffer headaches for years and even decades. If he thinks there is-a pot of gold at the end of the rain- bow of symptoms, he will never be quite well: for in a climate of litigation one must not close one's options completely. This is a lamentable fact of human nature, but such it is, and we had better recognise it and organise our legal system accordingly.

I am indebted throughout this article to Ken- neth R. Foster, David E. Bernstein and Peter W. Huber for their book Phantom Risk (MIT Press), and to Mr Huber, of the Man- hattan Institute of New York, for his help.