Essure Harm Shielded by the Supreme Court

by Hooman Noorchashm MD, PhD and Amy J. Reed MD, PhD.

Published Jan. 8, 2016, 10:52 a.m. ET

One of the underlying tenets of our free-market is that consumers alleging harm should have legal recourse in our court system. And the 14^th Amendment of our Constitution guarantees citizens equal protection under the law.

So, if a product or service is unreasonably harming people, the court system usually provides feedback to the supplier and problems are removed.

But, if legal barriers prevent consumers from taking their cases to court, harmful products and services will persist in the market.

That's the scenario playing out in the multi-billion-dollar medical device sector of our economy.

Most Americans do not realize that when the Food and Drug Administration (FDA) approves "high-risk" devices through its "Pre-Market Approval" (PMA) pathway, these devices are automatically shielded from litigation. This shield was created by the Supreme Court in the 2008 decision, Riegel v. Medtronic.

You can read about Riegel v. Medtronic here and here.

The presumption is that if and when a PMA device harms people, recourse will be provided through FDA review. But, unfortunately, FDA and, in particular, its Center for Devices and Radiological Health (CDRH) is a "captured" agency. What that means is that the FDA process is overly influenced by industry advocates, at the expense of patients.

Here is a clear example of why CDRH is considered a "captured" agency by prominent FDA watchdog groups.

When the federal government, on the one hand, blocks consumers' access to state courts and, on the other, takes on the job of addressing allegations of harm outside of a courtroom, that's not the free-market working - it's Big Brother at work. And that's the process protecting PMA-approved devices.

A specific example of this problem is playing out in the case of a device used to permanently sterilize women. This PMA-approved device is known as Essure, made by a German company, Bayer Health.

You can read about Essure here and here.

More than 25,000 women across the United States claim they have been harmed by Essure, but they do not have access to the state court system.

FDA did conduct a hearing on Essure in September 2015, but last I checked FDA is not an arm of the Department of Justice.

Pennsylvania Congressman Mike Fitzpatrick is fighting to overturn Riegel vs. Medtronic.

On Dec. 6, he introduced an amendment proposing the removal of all barriers to civil litigation in product liability cases against medical devices.

You can watch him introduce this amendment here at 41:50.

But Fitzpatrick's amendment was rejected, based on technicalities, by the House Rules committee. So it will not come up for a vote in the House.

Incredibly, those voting against the amendment were Fitzpatrick's Republican colleagues – the supposed guardians of "free-market" economics and vocal critics of federal government protectionism over the market.

Democrats are also rejecting rep. Fitzpatrick's call to remove Essure from the market, despite many in that party who advocate for women's health and patient safety. The party machine won't support Fitzpatrick's E-Free Act.

Meanwhile, Bayer is defending its product and claiming that the harm done to a relatively small group of otherwise healthy women is to be accepted given the product's supposed benefits.

But our country was built on protecting minority groups who are wrongly harmed.

Fitzpatrick's position on Essure and Riegel offers Republicans an opportunity to live up to their free-market ideology and to claim women's health as a real Republican platform – but many are failing to see this.