This week, the Centers for Disease Control (“CDC”) issued a report that addressed, in detail, the threat of antibiotic-resistant organisms to our world. Dr. Todd Friedman, the director of the CDC, cautioned that, “[i]f we are not careful, we will soon be in a post antibiotic era.”
Antibiotic-resistant organisms account for 2,049,442 illnesses and 23,000 deaths each year. The estimated cost to society? $20 billion in additional healthcare spending and $35 billion in lost productivity. According to Wired.com, this report is unprecedented as the CDC has never before provided hard numbers “for the incidence, deaths and cost of all the major resistant organisms.” The report is also the first time the CDC has ranked drug resistant organisms by how much and how imminent a threat they pose.
So what can be done? Is there a legal solution to superbugs?
Four possible legal solutions, identified by The Houston Journal of Health Law and Policy include: (1) encouraging pharmaceutical companies to develop novel antibiotics with the use of intellectual property and patents as economic incentives; (2) passing legislation that imposes statutory guidelines on antibiotic usage in medical, hygiene, and veterinary settings; (3) tort remedies, such as punitive damages, as a way of stemming the overuse and abuse of antibiotics; and, (4) increased FDA regulation targeted at restricting the use of antibiotics in both humans and animals.
Of the four proposed solutions, item #3 – Tort Reform – would likely pose the most problems for practical application. Under this solution, the finger is pointed at healthcare practitioners, via a personal injury or mass tort lawsuit, who contribute to the perpetuation of drug resistant antibiotics. This solution largely ignores the traditional elements of negligence law including duty, breach, causation, and damages. For example, physicians probably do not owe a duty to the population as a whole not to misuse antibiotics. Physicians do however owe a duty to their patients to treat bacterial infections under a reasonable standard.
The CDC report is alarming and should prompt new scrutiny of the population’s overuse of antibiotic drugs. By addressing these issues now with viable legal solutions, it is the hope that we can roll back the trend and keep drug resistant organisms at bay.