Pa. Court Rejects Patient's Negligent Promotion Claim

The Pa. Superior Court in Pierce v. Northwstern Human Services, Inc. (Pa. Super Sept.22, 2005) rejected the plaintiff’s claims. This tragic case involves a plaintiff, Pierce, who suffers serious psychiatric problems. He was prescribed a medication which, according to the warning label, had to be maintained at proper levels to control his psychotic behavior. The manufacturer of this drug decided to promote a new, similar drug and gave the plaintiff’s prescribing physician a coupon for 100 free pills of the new medication, which the doctor gave to Pierce. Pierce attempted to use the coupon several times and was unable to get the new medication or his old medication to control his psychotic behavior. Unfortunately the medication levels went below therapeutic levels and the plaintiff attempted suicide with a gun causing severe facial injuries.

The Superior Court upheld the dismissal of the Plaintiff’s claim that the drug company negligently produced coupons for one of its products that was not redeemable, despite knowing and advising physicians of the adverse effects that a patient experiences when not on the drug. The Court chose not to apply the analysis used in Incollingo v. Ewing to Pierce because, in its opinion, this case was not premised on a duty to warn. They held “Contrary to the plaintiff’s assertions, there exists no duty to ensure that a prospective patient is provided accessibility to a drug.”

This is, in my opinion, a harsh result when a drug company’s promotion to a physician has him stop a prescription for his patient in reliance on the company providing a free coupon for the new medication (which is actually not available to a psychotic patient to control his known suicidal ideations). The company did not simply fail to provide accessibility to a drug; they removed the patient from the drug he did have access too and prevented him from getting the new drug to replace it. Promotion gone horribly wrong……I think so!