"If you or a loved one took this drug, please call our law offices. You may be entitled to compensation."

Every time a medication is linked to an unexpected adverse event, law firms seek patients to participate in a class action lawsuit against the drug manufacturer. In response to these ads, some of our patients will ask us to forward their medical records to an attorney, while others will solicit our opinion as to whether they too should participate. In that very few of these patients were ever harmed as a result of their taking the involved medication, the situation seems downright abusive and can frustrate even the most empathetic clinician.

On a basic level, most physicians can understand when someone, who was injured by an improperly labeled or defective medication, decides to sue the manufacturer. After all, the person was harmed by someone's mistake or wrongdoing. However, most of us have little tolerance when we see patients who suffered no injury (and usually received significant benefit) joining one of these lawsuits. Many of us openly discourage these patients from taking such action and some physicians even go as far as dismissing these "ungrateful" patients from their practices. Although these actions are permissible, an understanding of the underlying legal issues might make the situation more palatable.

As with many things in life, class action litigation is occasionally misused. But, the concept does have a valuable purpose. When hundreds or thousands of persons are injured by the same event or exposure, it is often more efficient to group them into a "class," and then file one lawsuit ("action") on behalf of everyone. The "class action" concept is particularly well suited to drug litigation, as "bad drug" cases involve large numbers of patients who all have a similar claim against the same manufacturer.

Of course, within the class, there are several categories of plaintiffs. Some of them were seriously injured by the medication. They stand to receive the most money. Other patients experienced lesser injury and stand to receive lesser amounts of money. And, the largest group of patients is comprised of those who suffered no apparent injury, yet still stand to receive money (albeit a lesser amount). This last group is the most problematic for most of us. These are the "money for nothing" people.

Before we summarily dismiss these patients from our practice, several aspects of "bad drug" litigation are worth noting. First, it is difficult for a single person with anything short of a catastrophic injury to find an attorney who will sue a large corporation like a drug company. Plaintiff attorneys work on contingency, taking a percentage of whatever is obtained. And, because large corporations are capable of mounting an exhausting defense, the potential financial return for the attorney must be great (i.e., serious patient injury) or the case will not be worth his time. This means that class action litigation is often the only option for most people with mild to moderate injuries.

Second, in some types of class action litigation, an individual patient is not permitted to file his own lawsuit. Courts have the ability to mandate that every person who is seeking compensation must join the class action. And, when the court chooses to take this approach, an affected patient has no other way to exercise his legal rights. It is either the class action lawsuit or nothing.

Finally, and most importantly, our legal system does not give anyone money for nothing. When a lawsuit is settled, the plaintiff is paid money and he releases the defendant from liability. This exchange is a fundamental part of the legal process that is often overlooked. In return for the money, the defendant is released from any and all liability to the plaintiff with respect to the entire matter.

This means that none of these patients are receiving money for nothing. Even the ones who experienced no adverse effects are losing something of value - their legal right to blame the manufacturer for any harm that the drug might ever cause them to suffer. It does not matter if having taken the drug subsequently causes the patient to develop cancer; he has no further legal rights against the manufacturer. In that we often have a limited amount of knowledge regarding the long term consequences of newer medications, it is not unreasonable for a patient to be paid for releasing all of his legal rights with respect to one of these agents.

Of course, this does not mean that we must embrace and support class action litigation. And, the fact that the attorneys often take the majority of the money can be a revolting concept. On the other hand, our unfamiliarity with the legal details of each case makes it somewhat unfair simply to side against any patient who elects to pursue this course of action.

If a patient requests that we forward his records, we are required under HIPAA to do so. If a patient asks our opinion as to whether he should become involved in one of these lawsuits, there are no legal consequences for giving any answer that we choose. However, given our general lack of legal knowledge about most of these situations and the likelihood that the patient may rely on our advice, the exercise of professionalism often demands that we temper our answer along these lines:

"I don't believe that the drug hurt you and it actually seemed to have helped you. I appreciate that you asked my opinion, but I'm just your doctor. And, unfortunately, I'm not qualified to tell you what to do from a legal perspective."

This answer is truthful and reinforces that the patient received a good result. However, it also makes it clear that we are not making a recommendation. Although we are free to respond to these situations in a more adversarial manner, this approach seems to best balance our distaste of litigation with a good measure of professionalism.