Lawsuits against pharmaceutical companies are big business, for lawyers and government agencies. When drug companies promote dangerous drugs for dubious indications, they often suffer serious penalties, such as when Eli Lilly paid $1.4 billion in criminal penalties and civil lawsuit settlements for illegally marketing its blockbuster antipsychotic Zyprexa. Just last year, Alpharma paid $42.5 million to close a case that it paid kickbacks to doctors to prescribe its painkiller Kadian.
However, the doctors who take the kickback money are often not pursued. In the Zyprexa case, a doctor who was allegedly taking kickbacks to add the drug to the prescriptions of nursing home patients faced no charges and never had to pay for his actions. In the Kadian case, not a single doctor was pursued.
According to the independent advocacy group ProPublica, at least 15 drug and medical-device companies have paid $6.5 million since 2008 to settle allegations of marketing fraud and kickbacks. But their supposed partners in crime, 75 doctors named as having taken the money and written the scripts, were never sanctioned, and in many cases were never even investigated by state medical boards, Medicare, and other possible disciplinary bodies.
Government entities seem less willing to pursue doctors, and often accept sealing the documents used in evidence as part of the conditions for a settlement. Drug companies, making a ready profit despite the lawsuit, are often happy to make a settlement for what appears to be a good chunk of change for Justice Department lawyers. That many zeroes make a fine appearance on a lawyer’s resume (not to mention their bank book, in the case of personal injury settlements).
Doctors, on the other hand, are much harder to pin down. Because they have so much more to lose, they will fight harder in defense against any medical malpractice lawsuit. Even in the case of a wrongful death or permanent disability lawsuit, the revenues are not the same as for lawsuits against pharmaceutical manufacturers. In states like Ohio, the compensation is limited still further by state laws designed to protect doctors. Doctors also have two built-in defensive positions: laws for them are more general and leave more leeway for a doctor to exercise judgment. It’s harder to prove that his judgment was swayed by pecuniary concerns. And juries are inclined to support a doctor. It’s a social bias: we trust doctors to do the right thing.
For lawyers, it’s a hard choice. With limited time and resources, it is often not in the client’s best interest to pursue a dubious suit against a doctor, especially when that lawsuit gives the pharmaceutical company a strategic position in which they can claim the doctor is a “learned intermediary,” who is responsible instead of the manufacturer. In the words of the proverb, “The man who chases two rabbits catches neither one.”
If you have been hurt or lost a loved one due to a dangerous drug, our product liability lawyers will use our best judgment and experience to guide your lawsuit to its best possible resolution because our goal is always to give you the help you need after your injury or loss. To learn how we can help in your case, please contact Robert W. Kerpsack, CO, LPA in Columbus, Ohio for a free case evaluation.