Investigator: Generic drugs immune to lawsuits

10:10 AM, Apr 27, 2012   |    comments
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MADISON -- Lawsuits against generic drug makers are being tossed out of court, even while similar suits against brand names continue.

For the last seven years, Larry Crouch says that he has spent every day caring for his wife, Verna, after she suffered irreversible side effects from a prescription drug she took for chest pain.

"It's taken one hell of a toll," says Larry Crouch, who is disabled himself, after having steel rods surgically implanted in his back.

The doctor prescribed her a brand name drug called Reglan, but the insurance company sent her the generic equivalent instead. Larry Crouch says debilitating symptoms appeared within a few weeks of her taking the drug.

"Her face was sagging. She was twitching real bad. She even got to the place where she couldn't walk," he says.

While brand name and generic drugs are nearly identical, there is one big difference as Verna and Larry Crouch found out.

You can sue a brand name manufacturer for an undisclosed side effect, but not a generic drug manufacturer.  

"I'm angry," says Verna Crouch. "I've been saying from the beginning, I just don't want it to happen to anybody else."

Last year, the U.S. Supreme Court ruled that generic drug companies can't be sued for failing to warn patients about the hazards of taking their drugs.

"I'd like to have the Supreme Court judges in front of me and explain it to me -- why," says Larry Crouch.   

Unlike brand name drug manufacturers, generic companies don't have control over what warnings go on the drug labels they place on bottles. As a result, the court noted, it would be unfair to make them susceptible to lawsuits.

"We're seeing lawsuits being tossed out every day," says Peter Brodhead, an attorney with the Cleveland law firm Spangenberg Shibley & Liber.

The ruling has huge implications, given that nearly 8 in 10 prescriptions are filled with generic drugs. Pharmacies in Ohio and other states can substitute a brand name with a generic, even if the customer doesn't ask for it.

There are good reasons to buy generics. They're cheaper, saving insurance companies up to 85 percent, compared to the brand name equivalent.

But consumer advocates say there's a hidden cost -- not being able to sue if something goes wrong.

"The sad fact is that most consumers don't know this," says Brodhead. "They don't know there's a difference in their legal remedy."

Take the case of Diana Levine, a professional musician from Vermont. She sued drug maker Wyeth over a brand name drug that was injected into her arm, causing gangrene.

Doctors had to amputate her hand and forearm.

A jury awarded Levine nearly $7 million. But a woman from Indiana got nothing for her amputated hand. Because she took a generic form of the drug, the court tossed her lawsuit out.  

Nora Kelly, of Stow, was taking Fosamax so she wouldn't develop osteoporosis. Within a few weeks, the insurance company switched her to alendronate, the generic equivalent.

After taking it for a while, Kelly knew something was wrong when she began experiencing a pain in her thigh while doing even simple tasks.

Doctors found a stress fracture. They pounded a metal rod into her thigh bone to keep it from snapping in two.

Kelly wanted to sue. Then she learned of the court ruling.

"If the generic drugs are supposed to work the same way, have the same effects, why wouldn't they also be held responsible in the same way?" she says.


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