If you experience a serious injury as the result of a drug, you can only sue the pharmaceutical company if you took the brand name drug. If you took a generic version, the courts say no one is responsible for your injury. Did you know that? It was shocking news to me.
An article in The New York Times highlighted the differences in how patients can be affected by generic versus name brand drugs. There are two women–Debbie and Diana–in very similar circumstances: Both were treated in a medical setting…both received an injection of the anti-nausea drug promethazine…both had side effects that caused gangrene…and both had a hand amputated. Horrifying outcomes, which could have been prevented. In fact, the drug warns of this possible injury on the label—a label neither woman could see because they were treated by injection. Both women sued the manufacturer for failing to warn about the risks of the injection.
That’s where the similarities stop. But the differences are what make this story so tragic. Debbie had received the generic version of the injected drug; Diana received the brand name version, Phenergan. Diana won a $6.8 million judgment against the drug maker, Wyeth. Debbie’s case was thrown out of court simply because she received a generic drug.
The Supreme Court said that companies that make generic drugs aren’t liable for these kinds of injuries because the companies don’t have control over what was printed on the labels, and therefore cannot be sued by patients for the risks. As stated in The New York Times:
Now, what once seemed like a trivial detail — whether to take a generic or brand-name drug — has become the deciding factor in whether a patient can seek legal recourse from a drug company….
“Your pharmacists aren’t telling you, hey, when we fill this with your generic, you are giving up all of your legal remedies,” said Michael Johnson, a lawyer who represented Gladys Mensing, one of the patients who sued generic drug companies in last year’s Supreme Court case, Pliva v. Mensing. “You have a disparate impact between one class of people and another.”
Some organizations, including the consumer advocacy group Public Citizen, are petitioning the U.S. Food and Drug Administration (FDA) to give generic manufacturers greater control over their labels.
But what can the average person do? Really, not much. In an emergency situation, you may not be in a mindset to understand or even consent to taking specific drugs. And there are many times when an insurance company may only approve a generic drug, which means that consumers don’t have a real choice about which version of a drug they take. We always recommend that people become educated consumers, but that can be difficult—if not impossible—to do in the pharmaceutical world.
Still, this issue is important to keep in mind. Ask questions when you can…ask for brand name drugs when you can.
At HensonFuerst, we represent people who have been injured by drugs. To learn more about drug injury, visit our dedicated webpage at https://www.lawmed.com/DrugInjury/.
To read the full article in The New York Times, click here: Generic Drugs Proving Resistant to Damage Suits