Torchwood: Miracle Day Episode 3

The plot thickens! Or it tries to anyway. Turns out radical improbability does not work as a thickening agent unless you’re Douglas Adams, so this plot is still pretty soupy. Because, see, the legal side of things isn’t the only bit that’s getting increasingly implausible. Our heroes’ current theory is that the whole thing is an inside job so that… big pharma can make more money? Really? I mean, we’re completely okay with corporate executives as villains, but corporations absolutely need stability and order to survive—they’re legal fictions, after all—so the suggestion that a corporation would instigate a potentially society-ending cataclysm beggars belief. If this is what Davies has left in terms of plots, it’s a good thing for Doctor Who that he left.

Anyway, on to the law.

I. Prescription Regimes

So the big plot seems, at this point, to be a gambit by big pharma company PhiCorp to enable them to sell drugs by the boatload, not just by increasing demand because people aren’t dying, but by… eliminating prescriptions??!?

Seriously. Oswald Danes is co-opted by PhiCorp as part of a PR campaign to back legislation to end the need for prescriptions, making everything over-the-counter.

This is a terrible, terrible idea, for three related reasons. First, pharmacology is hard. There are literally thousands of drugs out there. Most Americans are probably familiar with about a dozen or so. Knowing which drug is useful for which disease or symptom is something people spend years in class trying to learn. Letting the public have full access to the pharmacopeia would, at best, result in lots of people taking drugs they didn’t need. But the more likely outcome is lots and lots of people getting really really sick, either because they aren’t taking the drugs that they do need, or they’re taking drugs which, either by themselves or in combination, are actually making them sick. Take too much acetaminophen (aka paracetamol or Tylenol), and you can absolutely destroy your liver in a matter of hours. And that’s just for starters. Digitalis is a common cardiac medication used to regulate heart rate in people with congestive heart failure. But the stuff is acutely toxic, and taking it when it isn’t needed will actually kill you. Of course, that isn’t true post Miracle Day, but this episode did establish that people can still become vegetables if oxygen to their brain is cut off, so heart block is still a bad thing. There’s a reason the stuff is prescription only.

And this is to say nothing about creating drug-resistant bugs. There are dozens of antibiotics, and physicians use them in combination and rotation to avoid treating the same bug with the same drug all the time, hoping that in so doing they’ll slow the rate at which bacteria adapt. The general population doesn’t know how to do that. Indeed, the general population tends to think that antibiotics are magic drugs that Make You Better, despite the fact that they have absolutely zero effect on viruses and not all antibiotics are effective against all bacteria. We’d probably see a run on antibiotics as people take them to ineffectively combat the common cold.

But this all leads into the second reason this is a bad idea, a reason with which even evil PhiCorp would agree. Namely, products liability. If a consumer is injured or made sick by a manufactured product, the manufacturer is potentially liable for the resulting injuries. Currently, pharmaceutical companies are significantly shielded from liability because prescription drugs can only be administered by a physician. Because prescribing drugs is a deliberate act, the act of prescription serves to break the chain of causation in cases where the physician prescribed the wrong drug, wrong dosage, etc. Eliminate that step, and the pharmaceutical companies are liable directly to the public for failing to adequately label their products in such a way that the average consumer will know how and when to take them. Right now, the main ways that pharmaceutical companies can be liable for their products is 1) there was a manufacturing defect, 2) they knew about serious side-effects they didn’t report, or 3) the label to the physician was somehow insufficient. Setting up a system where you can make more money selling drugs by exposing yourself to potentially unlimited products liability claims does not strike us as a great move.

And that leads into the third reason: writing labels for the general public is a lot harder than writing labels for physicians, who already know a thing or two about medications. The FDA would clearly get involved here, but exactly how is a problem, because right now, pharmaceutical labels for prescription medications don’t need to include information on when to take drugs, just how to take them. Selection is left up to physicians’ expertise. Which is great, because there’s no way in hell your average consumer is ever going to be able to deal with the kind of labels which would be necessary here. It being basically impossible to come up with such a label—essentially, to cram an entire pharmacology course into a single, easy-to-read label—labeling would likely not serve as an effective shield for liability. In effect, declaring open season on drug purchases is declaring open season on products liability lawsuits. While the plaintiffs’ bar would probably be okay with that, the rest of us, including pharmaceutical companies have compelling reasons to disagree.

So thus far, we’ve got a major plot point premised on a completely insane legal move. Way to go, guys.

II. We Totally Called It

Now for some self-congratulation. We totally called the issue of immortality being an issue for life sentences. And we had a post on the implications of functional immortality on homicide crimes back in December. One is tempted to ask whether the writers were reading the blog, because production of Miracle Day doesn’t seem to have begun until January 2011. Hmm…

12 responses to “Torchwood: Miracle Day Episode 3

  1. The theory I’m going with is that the pharma thing is some sort of fund-raiser for the real evil plot, which we aren’t seeing yet.

  2. Jamas Enright

    Yeah, that is incredi-stupid, and I’m hoping something else will arise…
    But, question legally, can this new SuperBill of EvilCo be worded so not only that all drugs are OTC, but also responsibility for selecting the right drug is solely on the buyer (which would get around the liability issue, yes?)?
    (The law is already flying out the window, why not erect a few more panes of glass to send it through?)

    • Will "scifantasy" Frank

      That would be a hell of a bill…it would have to preempt a lot of state tort law, and I think there’s a good argument that it actually can’t do that–federalism strikes again.

  3. Martin Phipps

    Removing the need for prescriptions is not the end of the world. In fact, in third world countries where people may live hours if not half a day from the nearest hospital it would be disastrous if people were required to get prescriptions because it would be too difficult for people to get the medicine they need when they need it. In the Philippines, all ads for Tylenol, for example, have a disclaimer saying “The generic name of Tylenol is paracetamol. Please use as directed.” This is to prevent people from buying Brand X drug from a pharmacist and having no idea what the drug did, taking a whole bottle and getting sick. It also would prevent local pharmaceutical companies from selling sugar pills as medicine because they would legally have to say “The generic name of Brand X is sugar” in their ads and, of course, nobody would buy it.

    Of course, that being said, I was just told yesterday by a medical researcher that this part of the world is the worst when it comes to drug resistant bacteria. This is because people were, in fact, taking antibiotics like they were candy. I don’t know if they still do but I would hope that the word has gotten out and people are only taking them to fight infections.

    That being said, ordinary people in the Philippines do know a lot about medicine because they have to make their own decisions every time they buy drugs from a pharmacist. In Taiwan, the opposite is true: people know very little about Western medicine and only get such medicine through prescriptions, even if all they have is a cold. I tell people that this places a burden on the health system because you are keeping doctors occupied whereas you could just buy over the counter medicine from a pharmacy but they tell me that they would have no idea what medicine they should buy. It’s the complete opposite to the situation in the Philippines!

    Anyway, i am sure that drug companies would prefer NOT to have the general public make these decisions because every time they bring out a new drug they would have to advertize to the general public and convince the general public that the drug works which would be a lot more trouble than just having to convince doctors that a drug works.

  4. No comment on the question of whether police could still arrest people for murder or attempted murder post-Miracle Day?

    • Scratch Martin

      Commonsense would say you’d have difficulty prosecuting someone for attempted murder, but I think most case law doesn’t really see a distinction in these circumstances. It is commonly accepted that pointing a gun at a person’s head implies intent to kill, because there is a substantial likelihood of death or serious injury. The “reasonable person” is supposed to understand this. One could argue that in a world of immortality the “reasonable person” test must change, or that there is *no longer* a substantial likelihood of death resulting from pointing a gun at a person’s head. I have no idea whether such an argument would work, of course.

      Note– police could *arrest* people for murder or attempted murder just fine. Police arrest people because they suspect a crime might have been committed, but then it’s up to prosecutors to analyze the facts and determine whether there truly was a crime. Whether the police would get permission to charge, or whether such charges would stick, is another matter.

      • “police could *arrest* people for murder or attempted murder just fine”

        That’s not necessarily true. If the prevailing legal theory is that attempted murder is no longer possible, then there’s no such thing as probable cause for an arrest for attempted murder, which means that (except for one tiny caveat) the officer would run afoul of a false arrest suit for trying.

        That caveat, of course, is that it’s still assault, which the officer is perfectly free to arrest a suspect for and leave the details up to the prosecutors.

  5. The law tends to move pretty slowly — we’re only a couple of days into Miracle Day. A few trial courts might have ruled on motions to dismiss charges, but probably not. Prosecutors might be issuing guidance to police, but again, this is very quick for any sort of organized and thought-out response. (As we see from the viewpoint doctor wrestling with the medical folks).

    I’d expect an arrest for assault — no problem there, with attempted murder charges added until the appellate courts start ruling (which will take months or years). I understand the need to telescope time for sake of story, but it might have made more sense for the officer to have said “why bother” as if it was his decision, not suddenly implemented policy. And aggravated assault is nothing to sneeze at — 10 years, plus whatever other charges can be added on.

  6. You wrote:
    “Letting the public have full access to the pharmacopeia would, at best, result in lots of people taking drugs they didn’t need.”

    Actually the more likely outcome would be that most people would still depend upon their doctor, some other trained professional or thorough independent research before purchasing and consuming what are currently prescription drugs. The idea that people would simply guzzle down with little thought products which are known to be potentially dangerous borders on the absurd. Would there be some such cases? Probably. But there would also be plenty of cases where experimental drugs would be used to save lives. There would also be much more open information and research on what is currently called “off-label use.” In other words, plenty of lives would be saved.

    I am not familiar with the liability regimen. But it doesn’t seem absurd that laws might evolve to say that popping Digitalis like candy is not something that a reasonable person would do and so the manufacturer would be liable for such an absurd use of their product. After all, plenty of companies manufacture products which are designed for use during dangerous activities and yet as long as they meet certain standards which may or may not be explicitly established outside of case law or common industry practices, they are generally free from excessive liability when a consumer does something they should know to be dangerous.

    • Melanie Koleini

      The problem with your assertion is twofold. First, it’s harder to diagnose yourself than you are assuming. I was diagnosed with cancer after a trained medical professional felt a lump in my neck and I had a biopsy. I thought was feeling run down because of allergies.

      The second problem with self medicating is monitoring the results. A lot of useful medication can cause liver damage. If you wait until you have symptoms, you can have permanent damage. If you have a heart problem, Digitalis could help a lot. However, Digitalis could be fatal (well cause a heart attack anyway) if you have certain types of heart problems.

      • PrometheeFeu

        I am not assuming that it is easy to diagnose yourself. In fact, I assume that it is very hard. What I am assuming is that just like when making other important decisions with a high loss potential, people would seek professional advice and only resort to self-help if they either could not get professional advice or had reason to believe they could make the decision themselves.

        Consider what you do when your car breaks. Do you hire a mechanic or simply pull out a screw-driver and give it a shot? Most people will hire a mechanic because they realize they don’t really know what they are doing and they don’t want to mess up their car. Yet there is no law against attempting to fix your own car.

        The big difference is that there would likely be some alternatives to doctors which would crop up. Some expert systems might be developed which could be operated by a person with minor training to diagnose and treat many ailments while doctors would be called upon only for more complicated conditions. Some people might specialize in follow-up only basically helping you by evaluating the effect of the treatment originally set by a doctor and recommending revision, continuation or termination of the treatment. Maybe a certain subclass of pharmaceuticals would be created which would be specifically designed such that they could be taken relatively safely by patients with minimal training or information. Perhaps pharmaceutical products would come with detailed information to help you determine whether the drug in question is a good choice for you. Perhaps the role of doctors might be split into several roles where a person might specialize in examination sending a report to a diagnostician who would determine likely diagnostics and allow a third individual to make the best judgement as to the best course of treatment. Nobody knows exactly what would change. But there is one thing of which I am sure: No significant number of people would start taking drugs such as Digitalis without professional assistance and/or advice.

  7. (As no ep 4 summary yet, just leave this comment here to ask: hope you address the point about the guy suing because he can still work after his heart attack.)

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