Fixing Medtronic v. Riegel: Congressional Hearings on the Medical Device Safety Act of 2009

Yesterday, the Health Subcommittee of the U.S. House Committee on Energy and Commerce held a hearing on the Medical Device Safety Act of 2009 (H.R. 1346). This new law that would restore important the rights of defective medical devices that were eradicated by the U.S. Supreme Court decision in Riegel v. Medtronic. The Medical Device Safety Act would restore the right of victims injured by a defective medical device to seek tort remedies for injuries and deaths.

Rep. Bruce Braley (D-Iowa) said at the hearing that the Supreme Court’s decision was flawed because preventing injured patients from suing device makers over FDA-approved products results in shifting the cost of caring for injured patients away from medical device companies who cause the injuries onto the already burdened American taxpayer.
Point of Law has a full list of those who testified before the subcommittee. One of those speakers is Michael Kinsley, a liberal columnist who wrote a silly editorial on Medtronic v. Riegel that showed off his complete lack of understanding of the facts of the case. I’m not saying an argument can’t be made – Justice Scalia did just that.

But Kinsley’s column was riddled with confusion. He can’t figure out why we don’t defer blindly to the powers that be at the FDA. He seems blithely ignorant of the fact that the FDA has nothing resembling equal post-marketing information about a medical device the drug manufacturer does. Kinsey’s argument really should be that we should just get rid of juries and let the “smart people” decide. But President Obama can make decisions about national security and the economy even though he is not a general or an economist. He does what juries do: listen to the arguments and make the call. It is called the jury trial system, and it has a long history.

I think Kinsley is doing what liberals sometimes do: flash conservative ideology by pretending to be balanced by picking on targets with populist appeal. When Kinsley wants to appear balanced, he attacks things like deficit spending (which he supports while attacking – it’s bizarre) and, everyone’s favorite target, trial lawyers.