Patients Can Sue Drug Companies for Fraud, Arizona Court of Appeals Rules

Chalk one up for patient rights: the Arizona Court of Appeals has opened the door for people to sue prescription-drug companies under the state's consumer fraud act.

Previously, the court held pharmaceutical companies liable for warning doctors about dangerous side effects -- but not the people who were actually taking the meds, said Adam Chodorow, a law professor at Arizona State University. The idea was that physicians acted as "learned intermediaries" between patients and drug manufacturers.

"At some point this made sense," Chodorow said. "You could only get the medication through your doctor, and your doctor should know the risks."

But that was back when manufacturers peddled prescription drugs exclusively to doctors, he said. For more than two decades now, they've been targeting the public directly through television, radio, and Internet ads.

In 2013, the top 20 pharmaceutical companies spent $3.2 billion on direct-to-consumer advertising, according to the latest Cegedim Strategic Data audit. And, based on research from the Kaiser Family Foundation, it's money well spent. About a third of Americans said they had approached their physician about a specific drug after viewing an ad. Eight out of 10 times, they reported, the doctor wrote a prescription. Oftentimes care providers complied with patient requests even if an older, more proven drug would have been a better fit.

Consumers are regularly prompted to "ask, encourage, and even pressure their medical providers to prescribe these brand-name medications," wrote Judge John Gemmill, in the court opinion. Pharmaceutical companies should be held responsible because a doctor's advice may be "undermined or negated" by flawed or incomplete advertisements.

In this case, Amanda Watts alleged that Scottsdale-based Medicis Pharmaceutical Corporation failed to tell her about the long-term risks of the acne medication Solodyn.

Under a doctor's care, Watts used the drug for 20 weeks in 2008 and again in 2010. In literature provided to the physician, Medicis warned that "long term" use of minocycline, the drug's active ingredient, may be connected to lupus-like symptoms and autoimmune hepatitis. However, the informational publications provided to Watts made no such disclosure.

Watts was hospitalized with drug-induced lupus and drug-induced hepatitis in late 2010.

A trial judge threw out the complaint, but an appellate panel unanimously revived it January 29.

The court's decision to hear the case has broad implications, Chodorow said. Easing the path for patients to bring suit against pharmaceutical companies may motivate them to "think long and hard about what they claim and what they disclose."

"It creates a greater incentive for companies to look out for patients' safety," he said. "That's a really great thing."

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Elizabeth Stuart
Contact: Elizabeth Stuart