RealClear Policy: Let’s Focus on the Real Issues Limiting Patient Access to Care

By Kasia Mulligan, Patients Come First’s National Spokesperson

Year after year, election after election, voters consistently rank health care as one of the country's most pressing issues. Yet despite hearing endless platitudes from politicians about what they will do to improve our nation’s healthcare system, voters continue to be disappointed in our leaders' solutions.

Part of the problem is that politicians seem to have forgotten that health care is supposed to be about promoting patient well-being. If we hope to improve access to health care and patient outcomes, we need to move beyond tired talking points and instead focus on real obstacles. For instance, one issue that is unlikely to receive much discussion this year is the role costly litigation plays in preventing patients from receiving high-quality care.

Over the last decade, mass tort lawsuits have exploded in the U.S., with many cases being brought against companies operating in the healthcare sector. According to a Wall Street Journal news report, the number of federal civil cases increased almost a quarter from the year prior. Litigation of this nature has sometimes served to hold bad actors accountable and ensure just compensation for victims. However, the unfortunate reality is that the recent surge has largely been driven by frivolous lawsuits, with some private-equity firms and hedge funds joining in on the action, loaning out billions to law firms to fund litigation and for ad time with the expectation of a return on their investments. While these cases may intend to benefit patients, they end up hindering progress, causing patients to ultimately bear the brunt of lost innovation.

Despite the tremendous progress made in recent years, many diseases and conditions still have inadequate or nonexistent treatment options. When it comes to cancer, Alzheimer's, and other debilitating chronic illnesses, continued innovation is necessary to develop effective therapies and medicines.

Patients are downstream from the delicate research and development ecosystem. When innovation slows down or pauses for any reason, patients and consumers experience delays in accessing new products. In some cases, patients may never be able to access them.

It is widely acknowledged that preventing innovators from delivering novel and cutting-edge treatments can lead to worse patient outcomes. However, many do not fully understand how widespread, costly, and frivolous litigation can prevent innovators from bringing new therapies to market.

Unnecessary litigation hinders innovation in several important ways. The most obvious is the significant drain on time and resources protracted litigation can impose on a defendant.

As anyone who has ever been involved in litigation knows, lawsuits can get expensive.

When a business is forced to defend itself in court, it must spend vast sums of money on legal fees. The funds used for these purposes could otherwise have gone towards the research and development spending necessary to produce innovative cures and treatments.

A less obvious but no less significant way litigation hinders innovation is by forcing investors and innovators to focus on lower-risk projects. Companies may avoid pursuing novel—but potentially revolutionary—medicines and therapies out of fear that they could result in unforeseen lawsuits.

To better understand litigation's chilling effect on innovation, one must remember that bringing a new treatment to market is often an expensive and lengthy affair. For example, it is commonly estimated that getting a new medicine to market can take around 12 years and cost over $2 billion, with only about 10 percent of treatments ever making it to market.

Given the effort required to discover new treatments, developers are naturally skeptical of investing in projects that they fear could be derailed by costly litigation. The threat of litigation alone can thus significantly hinder researchers’ ability to innovate, reducing their capacity to provide new and effective treatments for patients. This was evidenced by a 2021 study demonstrating that a reduction in the threat of litigation leads to increased innovation.

Read the full op-ed in RealClear Policy here.