Why thalidomide survivors have such a tough time getting compensation
The following piece, by Adjunct Fellow Bill Madden, from the School of Law, was first published by The Conversation.
It's been more than 50 years since pregnant women took thalidomide to treat morning sickness, with around 10,000 cases of birth defects attributed to its use worldwide. Decades have passed and yet the issue of financial compensation for the less than 3,000 remaining "survivors" of the tragedy has, in many instances, remained unresolved.
Some have received money, either from their respective governments or – as a result of settlements – from the drug manufacturer, Grunenthal, or companies that distributed it in various countries.
Compensation amounts vary and the value of money has dropped over time, affecting those who accepted it years ago. No doubt many would say any financial payment, however generous, would not be enough to truly compensate for what thalidomide victims with severe disabilities had to go through.
Victims of medication-related injuries face significant challenges in obtaining compensation. They include time barriers, difficulties proving the drug was responsible for the disability and obtaining sufficient evidence to prove a pharmaceutical company was negligent.
Compensation for victims of medication side effects isn't automatic. The law usually requires the affected person to prove their injuries were the fault of the manufacturer or distributor. Then they commonly use the legal argument of negligence on the company's part.
To prove fault, the person may argue she suffered injury because a company didn't adequately test the product before its release, didn't provide warnings, or didn't immediately withdraw a product once aware of its side effects.
Australian woman Lyn Rowe, who was born without arms and legs after her mother took thalidomide during pregnancy in the 1960s, used these arguments in a recently successful claim.
Lyn's lawyers argued inadequate testing by the manufacturer (Grunenthal) and that they and the distributor (Distillers) knew thalidomide was causing birth deformities but delayed withdrawing it from sale.
After Lyn's multimillion-dollar settlement was reached in 2012, Diageo (the parent company of Distillers) agreed to pay $A89 million to about 100 survivors in New Zealand and Australia. The settlement will hopefully be enough to cover their needs for the rest of their lives.
Despite its relative success, Lyn Rowe's case was difficult and serves to illustrate challenges thalidomide survivors face in obtaining compensation.
Statute of limitations
There are limits within law that set the maximum time after an event when legal proceedings may be initiated. Few, if any, legal systems permit claims 50 years later, without complex extension arguments.
Thalidomide victims in Spain have felt this all too recently. In 2014, a court ruled that Grunenthal should pay around 35 million Euros to 22 Spaniards affected by thalidomide.
On appeal, the decision was overturned on the grounds that the "statute of limitations" for the case had expired. Following a further appeal, the Supreme Court upheld that decision in September this year.
This trend towards short limitation periods may be reversing, at least in some circumstances. In Australia, for instance, we have seen recommendations to drop limitation periods for child abuse compensation altogether. These proposals stand some chance of becoming a reality.
Proof of causation
If they are to be compensated, a claimant must also prove their injury or disability was actually caused by the drug in question. This isn't always simple, considering the disability may have other causes.
It is now accepted knowledge that thalidomide largely affects the limbs, causing a rare condition called "phocomelia" (or flipper arms). When someone such as Lyn, who has no arms or legs, says thalidomide caused her disabilities, it may be easy for a court to accept that.
But it's not always that clear-cut, particularly for victims who don't have typical injuries.
An example of the difficulty proving causation is the case of painkiller Vioxx. Pharmaceutical company Merck withdraw the drug in 2002 following a clinical study showing the drug increased the risk of cardiovascular events, such as heart attack and stroke.
Australians claiming to be affected by Vioxx only received a modest amount of money. The settlement followed a finding of the Federal Court that the lead claimant's heart attack could have been caused by his other health conditions.
Thalidomide claimants need to prove in court that their mother actually took the drug while pregnant. But their mother may no longer be alive, doctors may have retired and records may have been lost. Indeed, there may be no records of a prescription written 50 years ago.
Compensation payments are not calculated simply because something happened, such as the use of a drug. Compensation payments focus on the effects – injury and its consequences.
So information about what a child went through is relevant to the amount of compensation they may be asking for. What operations did they have and how much did they cost? Were they able to get a job? Some of those issues can be difficult to prove, years later.
The risk of losing a claim at trial often sees claimants, as in the case of the Vioxx trial, accept a reduced amount of compensation, rather than risk getting nothing at all. In such cases, the compensation amount may be arbitrary, with little chance of meeting future needs.
In Lyn's case, the Australian court didn't rule whether there was negligence; the claims were resolved by negotiation. The case's lead lawyer, Peter Gordon, was quoted at the time saying:
"Diageo has behaved in a compassionate fashion… In fact, in my more than 30 years of personal injury litigation, I have never seen a company behave so constructively."
His comments show corporations may have better ethical standards than existed in the 1960s. But then again, the recent Volkswagen scandal, where the CEO said he was "shocked" and "stunned" that "misconduct on such a scale was possible", says otherwise.
Perfection in the skills and conduct of corporations still seems a long way off.
9 December 2015
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