Physicians Increasingly Named in Drug Suits

OB/GYN News, Dec 1, 2000 by Greg Borzo

"How odd," the physician told his nurse. "This patient is coming in for a visit even though she's suing me."

This scenario is being played out across the country, as thousands of physicians are being named wholesale as codefendants in mass tort litigation against pharmaceutical manufacturers. Often patients don't know that their lawyer is suing their doctor as well as the drug maker.

Physicians have long been included in liability lawsuits, but until recently such suits were rare, were focused on medical devices, and were generally considered little more than a nuisance. Starting with the recent rash of diet drug cases, however, the practice has escalated, focusing on pharmaceuticals and becoming more ominous.

"The stakes of mass tort litigation have been rising year by year to the point where today physicians have a gun to their head," said Dr. Richard Anderson, an oncologist and board chair of the Doctors' Company, the nation's largest physician-owned malpractice insurer.

Emboldened by the multibillion-dollar tobacco settlement, the plaintiff's bar has widened its scope of litigation. Suits are piling up as "billboard lawyers" aggressively advertise for clients who have taken Redux (dexfenfluramine), Rezulin (troglitazone), or Propulsid (cisapride), all of which have been pulled from the market.

"Cases like these could implicate every physician in the country," said Dr. David Hall, a family physician in Natchez, Miss., who has been named in several drug suits. "Prescription drugs are regularly pulled from the market, so it's frightening to think that you may always be tangled up in one suit or another."

The latest tactic is to litigate over drugs that are still on the market, such as Stadol (butorphanol). And other suits, including one over Cytotec (misoprostol), have made physicians leery of prescribing off label. "A lawyer can get a" lot of mileage from telling a jury that the [Food and Drug Administration] 'did not approve' a drug for a particular condition," Dr. Anderson said.

Four lawyers who are suing hundreds of physicians in two mass tort cases did not return this reporter's phone calls, but physicians and defense attorneys cited several reasons why these lawyers indiscriminately name physicians in their suits. The tactic, which requires no homework on the lawyer's part, can pay off if it finds physicians who have misprescribed these drugs or who failed to inform patients about potential side effects.

But the main reason for casting a wide net is to secure a local venue favorable to mass tort litigation. Many defendants seek a change of venue to federal court, where it's tougher for plaintiffs to win. In a few states, naming a local resident such as a physician or a pharmacist allows the plaintiff attorney to lock in the case at a carefully selected local jurisdiction.

In forum shopping, lawyers seek favorable demographics as well as advantageous state laws. Blue-collar workers, low educational levels, and heavy minority populations are considered favorable to product liability.

Naming physicians in drug cases also pressures them to testify against pharmaceutical companies, Dr. Anderson said. "If they don't testify against the drug company, they could become a primary rather than secondary target of the suit."

Naming as many defendants as possible increases the stakes and cost of defending a case, thereby increasing the incentive to settle with the plaintiff, Dr. Anderson said. Most physicians named in mass tort litigation can expect to be excused eventually and will typically pay little in direct costs because their malpractice insurer will handle the case.

But the blot remains. From the time they are sued or forced to settle, many will have to answer "yes" to the question, "Have you ever been sued?" Hospitals, HMOs, and others who routinely ask this question "typically hear the 'yes' part of your answer but not the 'but' part," said Dr. Dwalia South, immediate past president of the Mississippi Academy of Family Physicians.

So far, most of the drug-related mass tort litigation involves fenfluramine, dexfenfluramine, and phentermine. In August, a federal judge approved a reportedly multibillion-dollar settlement of a class-action lawsuit involving these drugs, but that doesn't stop others from suing. Sleepy Jefferson County, Miss., is the home of two pending fen-phen cases, one of which names more than 75 doctors and the other about twice as many.

Dr. Lucius Lampton, a Magnolia, Miss., family physician who has been named in several fen-phen cases, wondered if physicians are safe prescribing any medications. "I wasn't pushing pills. I just prescribed Redux for a couple of obese patients, following the product label and standard practice guidelines."

A significant number of physicians in Sandra Perry, et al, v. Wyeth-Ayerst never prescribed any diet drugs and most did not prescribe the fen-phen combination, said Chuck Dunn, chief operating officer of the Medical Assurance Company of Mississippi, who represents Dr. Lampton and others in this case. "I'm amazed at the magnitude of the lack of professionalism and prior investigation. Furthermore, I'm not aware of any damages suffered by the plaintiffs. They're just suing to get money.