It may soon be easier to sue a drug company in the British courts, but it will be no easier to win the case. Legal aid may also be more difficult to come by.
The Law Society, which represents solicitors, has prepared a consultation paper that recommends the removal of “developmental risks” defence. With this defence, drug companies can avoid liability if a patient was harmed while taking a new drug that was still being developed or tested.
This defence, unique to Britain, allows drug companies to develop an innovative drug without having to worry that it may be stopped in its tracks by a litigation suit.
The paper was drawn up as an attempt to improve the legal aid system after the benzodiazepine cases, which cost the British taxpayer around £30m, but collapsed with nobody successfully suing the drug company involved.
It’s significant that nobody has yet successfully sued a drug company in a British court, a fundamental point that the Law Society has failed to address.
While its paper may make it easier to get to court, thus ensuring its members are paid, it still does not make it any easier for the consumer to win the case. It also makes it harder to apply for legal aid, and suggests it is “at best doubtful whether these cases should qualify for legal aid on the normal merits test.”
Interestingly, the Legal Society’s own “no win, no fee” insurance scheme for solicitors excludes all drug action suits, suggesting that its mouth is not always where its money is.
Anthony Barton, a solicitor and former doctor who specializes in drug cases, commented: “These proposals are a thinly disguised attempt to generate more money for solicitors at the expense of the consumer and the British legal system.”