Adding insult to injury: the breast-implant settlement falls short.

• Author: Burton, Thomas M.

When he Dow Corning Corporation suddenly unveiled a $4 billion plan late last year to settle thousands of silicone breast-implant lawsuits, it seemed a surprisingly happy ending to a rancorous medical tale. Negotiators promised that the tentative agreement--the largest mass-injury deal ever--would pay individual women between $200,000 and $2 million each. Negotiators also claimed that the right of a plaintiff to drop out of the settlement and pursue her own litigation would be completely preserved. The plan is "like a health-insurance policy for women with implants," Dow Corning proclaimed.

But the proposal, which will be considered in August by a Federal judge for possible final approval, is hardly the simple and generous solution described. In reality, the payout to each woman would depend on the total number of claims filed and could decrease dramatically as the number of plaintiffs climbs. And the rights of women to drop out of the plan and seek their own settlements would actually be sharply curtailed. What's worse, thousands of sick women could lose their legal access to any compensation altogether.

"This is not insurance," says Norman D. Anderson, a Johns Hopkins University medical professor, who has treated hundreds of patients with problems related to silicone implants. "This is pennies-on-the-dollar reimbursement."

The agreement is scheduled to be considered soon by U.S. District Judge Sam C. Pointer Jr. of Birmingham, Alabama, who supervises implant litigation. The judge may accept, reject, or alter the plan after holding hearings in August to evaluate its fairness. The companies expected to be part of the deal are the Dow Corning Corporation, the Bristol-Myers Squibb Company, Baxter International, Inc., the Union Carbide Corporation, the Minnesota Mining and Manufacturing Company, and a number of smaller concerns.

A close look at the settlement plan illustrates the high stakes involved for women with implants. The million or so US. women with silicone implants, and the hundreds of thousands of women abroad who have them, will have to make a series of decisions beginning this summer that will determine their legal rights forever on this issue. If they make the wrong decision, or fail to act, they may lose out entirely.

The agreement sets out slightly more than $4 billion to compensate, over thirty years, all implant recipients with certain symptoms and disabilities. Of that amount, $1.2 billion would compensate women who are currently ill; an additional $520 million in initial funds would be set aside for specific purposes including surgical removal of implants, diagnosis of illness, and compensating women with ruptured implants. The settlement likely will greatly reduce court-clogging litigation. It also has an innovative feature that would compensate a woman more than once if her illness worsens over time.

But the plan is at once extravagantly generous to some women and exceedingly stingy to many others.

For instance, even women who got sick before receiving implants could collect money if their...