Why should two people who took the same medication and were both injured by pharmaceutical companies receive dramatically different awards? One of the patients received $6.8 million, and the other received nothing.
A recent case in the U.S. Supreme Court (PLIVA, INC., ET AL. v. MENSING) decided that patients who take generic medications cannot sue the manufacturers of the drugs even if they suffer a bad outcome as a result. Lawsuits against manufacturers of generic drugs are being dismissed because of the ruling.
Why is this happening?
A major component of many product liability lawsuits is whether or not the label of the product adequately warned the consumer of possible adverse effects. Brand-name drug companies are responsible for changing their labels in the event of a problem. Generic brand drug companies are supposed to also change their labels if there is a problem, but generic brand drug companies aren’t enforced the same way.
According to a recent article in the New York Times, Diana Levine was able to sue the Wyeth Company after being injected with the anti-nausea Phenergan and losing her hand and forearm to gangrene. The company failed to properly warn of the risk of Phenergan, and didn’t warn about the improper administration of Phenergan. She won $6.8 million.
Debbie Schork, a supermarket clerk from Indiana, was given the generic equivalent of the anti-nausea drug Phenergan and had to have her hand amputated because the injection was faulty. Her case was thrown out of court last fall. Why? Because the generic branded company was not required to make the changes.
Close to 80% of all prescriptions in the US are filled using a generic instead of a brand name. A consumer advocacy group called Public Citizen has asked the FDA to let generic drug companies have more control over their labels. A spokesman for Public Citizen pointed out that Congress and the FDA could counter the Supreme Court ruling, but with this being an election year it’s unlikely that anything will change very soon.
If you or someone you know has been injured as a result of a medication error, you can call Krause Law Firm for a free consultation. We’ve handled these cases before and we can advise you whether or not you have a case.