Supreme Court Closes Courthouse Doors to Patients Harmed by Generic Drugs

Karen Bartlett took a generic drug called sulindac that her doctor prescribed to her for shoulder pain.  About three weeks later,  her skin began to peel off due to a reaction to the drug.  She is now left with burn-like lesions over two-thirds of her body and she is nearly blind.   She spent months in a burn unit in a medically induced coma.  Her burn doctor described her condition as “hell on earth.”   She cannot read or drive or work, and she will likely lose all vision.  She sued the drug maker – Mutual Pharmaceuticals – and her case proceeded to trial and resulted in a New Hampshire jury returning a verdict of $21 million.  Many of us would applaud the good sense of a jury in returning this verdict to help this lady in such great need.  But the highest court in the land wasn’t so happy about Karen’s victory.

A majority of the United States Supreme Court reversed the jury’s verdict, leaving Karen with nothing.  Justice Sotomayor wrote a dissent that called the majority decision “frankly astonishing.”  Along with several other decisions from our highest Court, this decision prompted Andrew Cohen at the Atlantic to derisively refer to it as a “great day for corporations.”  The majority does seem to go out of its way – and well beyond the professed originalism of Scalia and others – to lend a helping hand to corporations.   Here’s a link to Andrew Cohen’s Atlantic article and a blog entry on the Pop Tort about the case.

But the majority’s loving embrace of corporations didn’t really surprise me – that is what the majority seems to do so often. It’s something else that frightens me:  this drug was allowed to be sold to patients despite evidence  – as reported in the Pop Tort’s blog post – that Mutual Pharmaceuticals knew that sulindac’s rate of life-threatening conditions was comparable to the rate for a drug that the FDA had recommended for removal from the market.  Why are drugs with these sorts of risks being sold to patients?  And why isn’t full information given to patients, at the very least?

One answer is provided in books like Overdosed America by Dr. John Abramson.  He shows that the research and approval process for drugs is often flawed, in large part because of the fact that much of the drug research is done by institutions or individuals with financial ties to the pharmaceutical industry.   Even many doctors unwittingly rely on studies that are flawed, as shown in his well-researched book.  With this sort of “fox guarding the hen house” situation, it is predictable that dangerous drugs will get FDA approval despite a lack of good research supporting their safety.  As corporate money continues to infiltrate universities and research groups, this situation get worse.  And it is magnified further when a majority of the Supreme Court moves in lockstep with corporate power.