When choosing between brand-name and generic, most of us are considering price and doctor recommendations. But what most of us don’t realize is that it will make the difference between winning and losing, if your drugs end up causing complications that lead you to take their manufacturers to court. According to the New York Times, dozens of lawsuits have been lost because the makers of generic pharmaceuticals aren’t held accountable for their drug labels. Times author Katie Thomas emphasizes how scary this is for people who’ve been debilitated because of insufficient warning on drugs, but what she doesn’t mention is how this could make health care even more difficult to navigate—and expensive—for the rest of us, too.
The Times article, “Generic Drugs Proving Resistant to Damage Suits,” outlines to story of two women who contracted gangrene caused by an anti-nausea drug injection, and had to have amputations as a result. Debbie Schork, who lost her hand, sued the drug manufacturer for failing to warn about the drug risks, and lost. Diana Levine, who lost her hand and part of her forearm, sued the drug manufacturer for the same reason, and won a $6.8 million settlement. The difference? The Schork was given a generic version of the drug (called promethazine), and Levine received the brand-name Phenergan.
This is because the Supreme Court decided last year that generic drug producers don’t have control over their labels, and therefore can’t be sued for failing to warn patients like Schork about the risks associated with their drugs. This is because, according to the legislation that makes it possible for generics to speed onto market, generic drugs are required to use the same labels—including usage and warning labels—as the brand-name drugs.
The result of their decision is devastating for patients like Schork, who now finds herself unable to return to her job at the deli where she once worked, and for a growing number of patients for whom drug complications are costing them more than just their health. But it’s not just an issue for one-off medical cases; the lack of legal recourse for someone using generic drugs could also make hospitals, insurance companies, and patients afraid to use them—and drive up health care costs.
Schork didn’t get a settlement in her lawsuit against the drug manufacturer, but she did win a malpractice claim against the hospital, winning an undisclosed sum. And, unless the rules are changed, the risk associated with generic drugs could become a pretty big deterrent, driving up the cost of health care for everyone.
This isn’t an issue of patient responsibility, and it shouldn’t be an issue of practitioner responsibility: But if patients have no recourse but to sue their hospitals for providing generic drugs without adequate warning about the side effects, then they will—especially if they’ve suffered consequences. And if hospitals start using brand-name drugs for fear of getting sued, and patients start demanding brand name prescriptions from their insurance companies (many of which just cover generics), all of us could end up paying a premium for the right to sue, should something go wrong.
According to the New York Times, legislators like Representative Henry A. Waxman, Democrat of California (who was involved in writing the original laws allowing generic drugs to get on the market) are working on ways to change the rules to better protect consumers. We hope they do.