Panic as the basis of lawmaking

From Flu: The Story of the Great Influenza Pandemic of 1918 and the Search for the Virus That Caused It by Gina Kolata.  Page 162. 

A reminder that there is the science of medical discovery.  There is the commerce of vaccine production.  And there is the legislation of risk.  Successful public health involves the Venn diagram intersect of all three.

Even in the Department of Health, Education, and Welfare, which wanted to indemnify the companies, there was dissension in the ranks. One staff member, who worked for Cooper, the head of that department, told Neustadt and Fineberg why he and others objected to having the government rather than the vaccine makers be held liable for vaccine-related injuries: “Behind these arguments for indemnification, there were a number of assumptions which were untested and unsupported by facts. For one, it was contended that if the manufacturers were not indemnified, they would all stop making vaccine. But the number of companies in this business had been diminishing for a long time for reasons totally unrelated to liability. We just couldn’t buy this—that continued liability would drive them out. And then there were other unsupported assumptions, just sort of out there, loping across the plains.”

As the vaccine makers met repeatedly with lawyers for the Department of Health, Education, and Welfare, they became increasingly frustrated. One company lawyer explained: “We would open every meeting with a heartfelt refrain for the HEW lawyers: ‘We need legislative relief. Nothing short of that is going to do it. Chairman Rogers [Paul G. Rogers, chairman of the House Subcommittee on Health and the Environment] is willing to put it in a bill. We need legislative relief.’ That was our first paragraph at every session. It fell on absolutely deaf ears.”

Inevitably, vaccine production was delayed.

On May 21, a leading vaccine maker, Merrell National, told the chief lawyer for the Department of Health, Education, and Welfare that the company would not provide the swine flu vaccine unless the federal government provided indemnification. On June 10, the insurers for Parke-Davis and for Merrell National told the companies that their liability coverage for the swine flu vaccine would expire on July 1. The only solution would be for Congress to pass a law requiring the federal government to insure the vaccine makers.

On July 15, Merrell said it would be stopping its vaccine production entirely and that it would not even purchase eggs after July 20.

Congress held hearings. The insurance companies did not budge. They simply could not assume the risk for the vaccine makers, they insisted.

The vaccine manufacturers, in the meantime, were making the swine flu vaccine in bulk but were not putting it in vials so it could be distributed. It “would take weeks to package the vaccine, delaying even further the start of an immunization campaign that now was beginning to seem hopelessly mired down.

The impasse lasted until August 1, when a swine flu scare spurred Congress to act.

At an American Legion convention in a Philadelphia hotel a group of people fell ill and twenty-six died of a mysterious disease. It seemed to be a respiratory disease. It looked, in fact, like the flu, and some doctors said publicly that the men might have died from swine flu. For four days, while television stations showed funerals of the Legionnaires and the new disease made headlines, it seemed that the predicted flu epidemic had begun.