State lawmakers are considering new legislation that would limit North Carolinian’s ability to sue pharmaceutical companies for harm caused by drugs.
By Rose Hoban
Members of a senate judiciary committee heard testimony yesterday on proposed legislation that would make it harder for people to successfully sue pharmaceutical companies for harm caused by prescription drugs.
In what were at times emotionally recounted personal stories, state senators heard primarily from people opposed to the legislation. The language in the proposed bill was removed from a larger tort reform bill that became law last year after legislators overrode a gubernatorial veto.
“I’m a Republican and a conservative, and I’m worried,” said Doctor Wayne Welsher, a cardiologist who practiced for more than a decade in Fayetteville. Welsher recounted giving his cardiac patients Trasylol, a clotting drug routinely given to surgical patients until it was withdrawn from the market in 2008. Welsher said at the time, he didn’t understand why many of his patients ended up having multiple post-operative problems,
The drug made billions for manufacturer Bayer, even as the company withheld data indicating it had adverse side effects on surgical patients, including kidney failure and death.
“The representatives of this company were excellent salesmen, and told us of its values, of its virtues and always discounted any side effects,” said Welsher.
Whitney Phipps also testified against approving the bill. His 64-year-old father was one of Welsher’s patients, and died after Welsher performed open heart surgery on him, giving him Trasylol in the process.
He recalled Welsher telling his family ” ‘for the life of me, I cannot figure out why his organs are starting to shut down,’ ” Phipps said.
“Lawsuits were incurred and during those findings, evidence was that Bayer had suppressed significant information,” Welsher argued. “The lawsuits allowed for states to recover many millions of dollars of Medicare and Medicaid and allowed for some recompense and restitution of losses by the patients.”
The ability to recover money for Medicare and Medicaid is behind North Carolina attorney general Roy Cooper’s opposition to the bill.
A similar law exists in Michigan, where, for example, it prevented the attorney general and patients in that state from suing drug maker Merck over the harm caused to Michigan residents by the painkiller Vioxx.
Cooper argued that language in the proposed bill is similar to the Michigan law, and would also ultimately prevent North Carolina from participating in litigation against drug companies.
“It would not be in the best interests of the State to limit the legal tools available to Attorney General’s Office,” Cooper told the committee in a letter.
Drugmakers eager for the bill
“The adoption of the language would illustrate North Carolina’s commitment to bioscience and to a culture of innovation,” said Gary Salamido, vice president of governmental affairs for the NC Chamber of Commerce.
Salamido told the panel that creating ‘favorable legal climate’ can be a major factor in attracting new business, a point echoed by GlaxoSmithKline vice president for government relations, John Del Giorno.
“Unfortunately, litigation costs make a state’s legal climate a factor in business investment decisions, particularly when attractive expansion opportunities occur overseas,” Del Giorno said.
“This law does not give drug companies a free pass,”Del Giorno reassured the committee. “Prescription drugs are more regulated than any other consumer product.”
Laurie Sanders from the NC Coalition for Patient Safety pointed out that often, suppressed data about a drug’s potential dangers has only been revealed during the discovery process of a lawsuit.
One worry expressed by Sanders and other patient advocates is that even if the law would not give drug companies total immunity from prosecution, it would raise the bar so high it would be hard to convince an attorney to handle a potential case.
“When you start going to an attorney and they’re looking at going aganst Glaxo, or going against Pfizer or Merck, and they have to be able to go through this entire discovery process, using their own law firm’s bank account, they’re gonna sit there and say, ‘I can’t afford to go up against the big guys,’” Sanders said.
Del Giorno laughed that idea off.
“We have not found that there is a lack of willing attorneys to sue us. In fact, there is an overabundance,” Del Giorno said.
Representatives of out-of-state drugmakers have been attending committee meetings around the proposed bill. A representative from NJ-based Johnson & Johnson attended yesterday’s session. A February committee meeting found representatives from Pfizer, Lilly, Bristol Meyers Squibb, J&J, and representatives from the Pharmaceutical Research and Manufacturers of America, an industry group.