Will Lawsuits Make A Comeback?

Rep. Henry A. Waxman (D-Calif.) announced he is co-sponsoring a bill with Rep. Frank Pallone (D-N.J.) that would allow consumers to sue manufacturers when medical devices malfunction. In February, the high court ruled that you can’t sue a medical device maker in state court if the Food and Drug Administration has tested and approved that device.Waxman, chair of the House oversight committee, found the ruling absolutely ridiculous and spent a four-hour Congressional hearing this April saying as much.

The proposed Medical Device Safety Act will allow consumers to once against bring lawsuits in state courts on food, drugs, and medical devices even if the FDA has approved the product. You can still sue food and drug makers but a pending Supreme Court case may take away that ability as well.

It should be noted that Sen. Edward Kennedy (D-Ma.) is writing a Senate version of the legislation. Kennedy wrote the 1976 medical device act that forced the FDA to pre-approve certain complex medical devices, like heart catheters, before they hit the market. The Supreme Court ruled that the FDA regulation preempts consumer lawsuits. Kennedy has said the Court is misinterpreting the legislation he’s authored. His, and Waxman’s, hope is that the new legislation will bring back the right to sue as unambiguously as possible.