December 30, 2003

Politics, Autism, and Science

Can't I find anything to write about other than health care and drug companies? Well, usually yes, but it's been a landmark year for blatant greed and naked political corruption by the drug companies, so fresh insults to my intelligence have inspired me lately.

The latest insult comes on the Wall Street Journal editorial page of December 29, and it's called The Politics of Autism--Lawsuits and emotion vs. science and childhood vaccines, in which the WSJ castigates three Moderate Senators for holding up a "reform" bill that would cut the pins out from under the Greedy Trial Lawyers bedeviling those pristine drug companies, and threatening our vaccine supply. It's a well-written editorial, and would normally have had me cheering for anyone who could muzzle them thar lawyers, except....

Except that I've followed the issue for years, and what is noticeably lacking is some background on the controversy. Details like the situation that led to the flap in the first place. Details such as the thorough discrediting of the (drug company sponsored) studies the Journal cites as "definitive science" of no vaccine/autism link. Details like the REAL reason Frist's VICP "reform" bill hasn't made it out of the joint House/Senate committee. Details like Senator Frist's incestuous relationship with the drug companies, and his self-interest as a major stakeholder in the Hospital Corporation Of America (HCA).

The Journal (and the Frist crowd, and the Bush administration) would have you believe that the vaccine/autism link has been totally disproved. The autism advocates would have you believe there is no possible doubt of a connection. The scientists and statisticians and analysts among us who've reviewed the data know that it may take decades to prove either way (e.g., the causative mechanism for thalidomide injuries was not found until the '90's!) and that the evidence of a link is ambiguous but by no means insubstantial. So, as Paul Harvey says, "And now, the rest of the story."

The real issue in this case is NOT whether infant vaccines and components therein can be linked to the epidemic of Autistic Spectrum Disorder. Despite what you may hear from either side, the definitive science is still not there either way. The real issue is that the drug companies want a blanket immunity from ALL vaccine liability, regardless of what science may show now or in the future, and their Congressional lapdogs are quite willing to provide it. On the other side, Congressional supporters of the tort bar want to open the cash vaults of the drug companies. In the middle, thoughtful and sober moderates want to address the actual problem with a real solution, and are keeping both the drug reps and the lawyer-lovers at arm's length and stalling bad bills. And the basic problem that needs fixing is a thoroughly dysfunctional Vaccine Injury Compensation Program (VICP) desperately in need of reform and repair.

VICP was designed to compensate those injured by acute reactions to vaccinations. It has an incredibly short filing statute, 36 months maximum. It has absolutely NO provisions or mechanisms for dealing with any chronic or late-appearing vaccine injuries. None. And the average age of diagnosis for ASD aka "autism" is about four years. So parents believing their child's autism might be related to vaccines discovered that, regardless of the science, regardless of any American conception of justice, they were barred by federal law from making any legal claims anywhere except the VICP, but that they couldn't make any claims with the VICP because the filing statute ran out before their child was even diagnosed.

So the parents went searching for lawyers who could find loopholes, and they found them, and the lawyers found loopholes and proceeded to sue the bejeezus out of the drug companies. The drug companies, looking at a plaintiff's class of tens of thousands of autistic children, panicked and went running to their friends in the federal government. Specifically, to the Bush administration and Senator Frist. And the administration saw those tens of thousands of claims and realized that if they made it into the system and there was anything at all to back them up, either the drug companies or the government would have a tab of many, many billions to pay out, and that public faith in the vaccination programs would be severely shaken. So, lo and behold, in the middle of the night several clauses were anonymously inserted in the Homeland Security bill, clauses that would have forced all current and future vaccine-related claims of any kind into the VICP, where they were utterly assured of being rejected due to the time limits. A hue and cry arose from the lawyers and the parents, and the clauses were stripped out when Congress reconvened in January.

Then VICP reform bills were passed by both the House (R-Burton, IN) and Senate (R-Frist, TN) and went into joint committee in April, where they deadlocked. Burton's bill would reform the VICP to address chronic injuries, and provide for future claims on newly discovered causation. If conclusive evidence was found in the future that vaccines were implicated in autism, then claims could be made on behalf of those tens of thousands of kids without the filing statute being applied to exclude them. Frist's bill superficially looks much the same, but would only allow claims excluded in the last six years to be brought forward, and would not reform the VICP to address chronic injuries. As thimerosal was pulled from infant vaccines in 1999, the longer the bill takes to pass, the more autistic kids who received thimerosal-containing vaccines would be excluded from claims by time limits, no matter what science the future may bring. (The bulk of thimerosal claims would by definition be from children born between 1985 and 1999.) Thus, if evidence of a definitive autism/vaccine link was ever uncovered, the bulk of those injured would once again have been excluded from ever, in any venue, seeking damages or compensation.

You can guess which part of the two bills has resulted in the lack of compromise, and intense and massive lobbying by the pharmaceutical industry to pass the Frist version of the "reform" bill. Yep, the part that would allow claims based on new evidence to be allowed without applying the filing limit.

The administration, the Wall Street Journal, and Frist's favorite contributors want the Frist bill. The trial lawyers and their Congresscritters, and the "true believer" parents of autistic children want litigative blood, and an open shot at the deep pockets of the drug companies. The there's those of us in the middle who still believe that justice is desirable in our society and would like to see Burton's bill pass, leaving the VICP open to retroactive claims if and when the science is there to support them. My hat is off to Snowe, Collins, and Chafee for holding their ground and keeping the Frist bill bottled up despite intense pressure.

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