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Jamie Sheller
Jamie Sheller
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NY Times: Courts Dismissing Cases Involving Generic Drugs

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If you buy a generic drug, you might save money on the purchase. But if a generic drug harms or kills you because it is dangerous, buying a generic drug could cost you your legal rights to hold the drug manufacturer responsible for your injuries.

An article in The New York Times article is highlighting how courts are dismissing cases of people who have been catastrophically injured by dangerous drugs based on the U.S. Supreme Court’s 5-4 decision in Pilva v. Mensing, which held that generic drug manufactures are not responsible for updating drug labels — even to warn of known dangers — as brand-name drug manufacturers are. To date, at least 40 judges across the country have dismissed cases against generic drug manufacturers since June.

Consider the story of Debbie Schork, an Indiana supermarket worker, who had to have her hand amputated after she was injected with an anti-nausea drug, which caused gangrene. She sued the manufacturer of the generic drug promethazine. An Indiana court dismissed her case, according to the Times article, “Generic Drugs Prove Resistant to Damage Claims.”

But when Vermont musician Diana Levine was forced to have her hand and forearm amputated because a drug with the same chemical makeup caused gangrene, she sued the manufacturer Wyeth and won $6.8 million.

What was the difference between Ms. Levine receiving fair compensation for her loss and Ms. Schork, who was turned away from the court with nothing? Ms. Levine was given the brand name drug Phenergran, and Ms. Schork was given the generic version of the same drug. Now what most patients view as an insignificant question – whether or not to take a generic or name brand – is the deciding factor in whether a person has a right to bring suit for injury caused by the dangerous drug or not. Frequently, pharmacists and doctors make those decisions without discussing with the patient.

According to the Times’ investigation, dozens of cases brought by people injured by generic versions of drugs have been dismissed across the country in light of the Pilva decision. The Supreme Court’s 5-4 decision was split down ideological lines, with conservative justices making up the majority.

The Court’s analysis was based on a 1980s law that brought generic drugs onto the market. Generally, the law required that generics use the same label as the brand-name drug it copied. The court held that generic manufacturers should not be held liable for a warning label they are required to follow.

But Justice Sonya Sotomayor, writing for the dissenting justices, argued generic companies still have a responsibility to report dangers to the FDA and should not be let off the hook for failing to warn patients about those dangers, the Times notes.