I don’t think the modern world’s liability system works well enough for this. More importantly, I don’t think the cost-benefit of when and how to release medicines matches the revenue-risk of sales and liability well enough for this to be a useful incentive scheme.
Vaccines, even for non-pandemic serious diseases are literally life-changing. The calculus of any individual, or a population, reducing the risk of any major viral disease (pick any one—tetanus, shingles, hepatitus, HPV, even seasonal flu) in exchange for some risk of side effects is NOT something that maps cleanly to corporate liability. It does map pretty cleanly to doctors and patients (and governments, in case of attending public schools) publishing information and making the best decisions they can.
That’s pretty close to just legislating that “vaccines are unavoidably unsafe”. I wish more things were acknowledged to be so—the attempt at 100% safety at any cost is extremely harmful to the world. Driverless cars are another example where the bar should be closer to “safer than humans on average” than “safe”.
Some sort of aggregated liability for fraudulent claims about the impact (effectiveness or frequency/severity of side-effects) is absolutely necessary, and already exists—that’s a crime, and breaks the immunity. Likewise very severe regulatory penalties for manufacturing process failures.
BTW, I object to the framing “if it’s X, then why not accept unlimited liability”? “If you’ve not committed a crime, you shouldn’t need to keep secrets from the state” is the same form, and it’s bullshit.
Or a simple analysis: if you ask “what do they know and how do they know it”, obviously a judge and jury are going to have a high error rate on something like a low probability event involving complex medical information. Likely giving judgements that are not better than noise.
The liability system “worked” when it was obvious things like manufacturers bolting the bumper to the gas tank (though some studies show the pinto wasn’t actually less safe than similar cars of that era) or really more blatant things like coal mines without safety railings. When the risk is very high numerically and grokkable by non experts the system can work.
You also have liability asymmetries, for example with autonomous cars the manufacturer has far deeper pockets than individual drivers, so the relative cost of insuring the risk goes way up unjustly.
These assymetries create injustices, for example medicine for fatal diseases that can sometimes kill he patient is frequently not approved. The injustice is the patients are seeing a higher risk of death but it shields the FDA from criticism/manufacturer from liability. Obviously also the case for autonomous cars once they are even slightly better than the average human driver.
A further problem with a liability model for vaccines is that they must be relatively cheap to be useful. They usually have large measurable public benefits, but highly variable and invisible private benefits. So any given person doesn’t know whether or how much they benefited from a vaccination, but can easily attribute problems to it (correctly or not).
Under a product liability model the producer is getting only a small fraction of the positive value of vaccination to society, but is being stuck with costs plus penalties for most of the problems and legal risk of being incorrectly blamed for some other issues. The obvious response would be to build in a premium to the price of every vaccine, capturing more of the positive value to account for the risk. The higher price would reduce the prevalence of vaccination and greatly reduce the benefits to everyone.
So while product liability seems to be a ‘fair’ approach superficially, it’s not really a suitable model even given very safe vaccines, and would make people substantially worse off on net.
So any given person doesn’t know whether or how much they benefited from a vaccination, but can easily attribute problems to it (correctly or not).
I don’t think that negative side effect attribution is easy.
The more than doubling in infant deaths of DPT-vaccinated girls in Guinea-Bissau was not easily picked up.
If the side effect of a childhood vaccine would be a 5-point drop in IQ, it’s very unlikely that this would be picked up by current processes but it would still be a very clinically significant effect.
In general, most people who have head-trauma-induced depression don’t know about the causation as it takes months to develop afterward.
If the mercury that gets into the brain as a result of a thimerosal-based vaccine would produce inflammation that has effects similar to head-trauma in some patients it would likely be very hard to pick up given that it’s not an effect you would see directly after the vaccine is given.
The higher price would reduce the prevalence of vaccination and greatly reduce the benefits to everyone.
For most patients who decide whether or not to vaccinate, the price is zero because someone else pays for the vaccine. The price is paid by the government or health insurance companies.
Giving manufacturers liability would however make the vaccines more trustworthy for those people who are on the edge and thus likely increase vaccination rates.
I don’t think the modern world’s liability system works well enough for this. More importantly, I don’t think the cost-benefit of when and how to release medicines matches the revenue-risk of sales and liability well enough for this to be a useful incentive scheme.
Vaccines, even for non-pandemic serious diseases are literally life-changing. The calculus of any individual, or a population, reducing the risk of any major viral disease (pick any one—tetanus, shingles, hepatitus, HPV, even seasonal flu) in exchange for some risk of side effects is NOT something that maps cleanly to corporate liability. It does map pretty cleanly to doctors and patients (and governments, in case of attending public schools) publishing information and making the best decisions they can.
That’s pretty close to just legislating that “vaccines are unavoidably unsafe”. I wish more things were acknowledged to be so—the attempt at 100% safety at any cost is extremely harmful to the world. Driverless cars are another example where the bar should be closer to “safer than humans on average” than “safe”.
Some sort of aggregated liability for fraudulent claims about the impact (effectiveness or frequency/severity of side-effects) is absolutely necessary, and already exists—that’s a crime, and breaks the immunity. Likewise very severe regulatory penalties for manufacturing process failures.
BTW, I object to the framing “if it’s X, then why not accept unlimited liability”? “If you’ve not committed a crime, you shouldn’t need to keep secrets from the state” is the same form, and it’s bullshit.
Or a simple analysis: if you ask “what do they know and how do they know it”, obviously a judge and jury are going to have a high error rate on something like a low probability event involving complex medical information. Likely giving judgements that are not better than noise.
The liability system “worked” when it was obvious things like manufacturers bolting the bumper to the gas tank (though some studies show the pinto wasn’t actually less safe than similar cars of that era) or really more blatant things like coal mines without safety railings. When the risk is very high numerically and grokkable by non experts the system can work.
You also have liability asymmetries, for example with autonomous cars the manufacturer has far deeper pockets than individual drivers, so the relative cost of insuring the risk goes way up unjustly.
These assymetries create injustices, for example medicine for fatal diseases that can sometimes kill he patient is frequently not approved. The injustice is the patients are seeing a higher risk of death but it shields the FDA from criticism/manufacturer from liability. Obviously also the case for autonomous cars once they are even slightly better than the average human driver.
A further problem with a liability model for vaccines is that they must be relatively cheap to be useful. They usually have large measurable public benefits, but highly variable and invisible private benefits. So any given person doesn’t know whether or how much they benefited from a vaccination, but can easily attribute problems to it (correctly or not).
Under a product liability model the producer is getting only a small fraction of the positive value of vaccination to society, but is being stuck with costs plus penalties for most of the problems and legal risk of being incorrectly blamed for some other issues. The obvious response would be to build in a premium to the price of every vaccine, capturing more of the positive value to account for the risk. The higher price would reduce the prevalence of vaccination and greatly reduce the benefits to everyone.
So while product liability seems to be a ‘fair’ approach superficially, it’s not really a suitable model even given very safe vaccines, and would make people substantially worse off on net.
So any given person doesn’t know whether or how much they benefited from a vaccination, but can easily attribute problems to it (correctly or not).
I don’t think that negative side effect attribution is easy.
The more than doubling in infant deaths of DPT-vaccinated girls in Guinea-Bissau was not easily picked up.
If the side effect of a childhood vaccine would be a 5-point drop in IQ, it’s very unlikely that this would be picked up by current processes but it would still be a very clinically significant effect.
In general, most people who have head-trauma-induced depression don’t know about the causation as it takes months to develop afterward.
If the mercury that gets into the brain as a result of a thimerosal-based vaccine would produce inflammation that has effects similar to head-trauma in some patients it would likely be very hard to pick up given that it’s not an effect you would see directly after the vaccine is given.
For most patients who decide whether or not to vaccinate, the price is zero because someone else pays for the vaccine. The price is paid by the government or health insurance companies.
Giving manufacturers liability would however make the vaccines more trustworthy for those people who are on the edge and thus likely increase vaccination rates.