One of the many things the “government shutdown crowd” asked for and didn’t get was repeal of the 2.3 percent tax on “pricey medical devices.”

This major medical device industry defeat, despite spending “about $30 million a year lobbying lawmakers since Congress began work on the [health care] overhaul," couldn’t have happened to a more deserving bunch. In today’s New York Times, the Center for American Progress’ Topher Spiro catalogues some incredible advantages from which this industry benefits, showing how their anti-tax argument – that the tax “will stifle innovation and increase health care costs” - is a bunch of bull-crap. Writes Spiro,

This argument is doubly disingenuous. Not only can the medical-device industry easily afford the tax without compromising innovation, but the industry’s enormous profits are a result of anticompetitive practices that themselves drive up medical-device costs unnecessarily. The tax is a distraction from reforms to the industry that are urgently needed to lower health care costs.

Actually, it’s “triply disingenuous.” What he forgot to mention is one more major reason this industry can afford the tax. It has immunity for killing and injuring patients with its most dangerous devices.

In 2008, in the case Riegel v. Medtronic, the U.S. Supreme Court immunized the medical device industry for marketing unsafe, high risk Class III medical devices. These are among the most dangerous types of devices, specifically ones “that supports or sustains human life or is of substantial importance in preventing impairment of human health or presents a potential, unreasonable risk of illness or injury,” like heart pacemakers and implanted defibrillators.

The case arose when, in 1996, Charles Riegel’s doctor performed an angioplasty and inserted a Medtronic Evergreen Balloon catheter into his blocked coronary artery. During the procedure when the catheter's balloon was expanded to restore blood flow to his heart, it burst requiring an emergency heart bypass to save his life. Riegel sued Medtronic, the maker of the catheter, over the design, manufacture and labeling of the device.

Riegel died in 2004, but his widow pursued his case to the U.S. Supreme Court, where it decided that medical device companies were immune from liability. More specifically, the Court found that state common law claims were expressly preempted by the Medical Device Amendments of 1976 with regard to Class III medical devices even though Congress made no mention whatsoever of state tort law claims in the law or even discussed it.

The impact of this case was immediate. In January 2009, a federal court dismissed over 1,000 lawsuits brought by victims of another Medtronic defibrillator flaw, this one involving the defective Sprint Fidelis lead (the wire that connects the heart to the defibrillator) that fractured causing electrical shocks in patients. The judge said, “The court recognizes that at least some plaintiffs have suffered injuries from using Sprint Fidelis leads, and the court is not unsympathetic to their plight [but] the court simply cannot provide a remedy.”

In February 2009, the Wisconsin Supreme Court reluctantly dismissed a case brought by a man with a Medtronic defibrillator – this one with a failing battery. In dismissing the case, concurring Justice Ann Walsh Bradley wrote:

I write separately in order to express my concern that the United States Supreme Court's interpretation of the 1976 Medical Device Amendments does not adequately protect the safety of the citizens of Wisconsin. With one stroke of a pen, it has diminished the states’ traditional authority over the development of the common law and substituted instead mandatory adherence to a regulatory standard that may be substandard. I do not believe that such adherence was mandated by the express language of the amendments, although I acknowledge that I am bound by the Supreme Court’s interpretation.

In June 2008, the U.S. House and Senate introduced identical bills titled “The Medical Device Safety Act of 2008” to reinstate the right of injured victims to bring state tort claims for Class III device defects. Congress has not voted on this bill to date. And I suspect with $30 million in lobbying money comin’ at them, they won’t anytime soon. But pay a measly 2.3 percent tax? Yeah, the industry can do that.