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Generic vs brand-name drugs: where does the victim stand?

Those interested in product liability should not miss this article, on The New York Times: Generic Drugs Proving Resistant to Damage Suits. It compares two very similar cases with different outcomes.

Debbie Schork had to have her hand amputated after an emergency room nurse injected her with an anti-nausea drug, causing gangrene. She sued the manufacturer named in the hospital’s records for failing to warn about the risks of injecting it. She lost the case. Conversely, Diana Levine, who had her hand and forearm amputated because of gangrene after a physician assistant injected her with the same drug, sued the drug maker and won. Reasons for the different outcomes? Shork had received the generic version of the drug, known as promethazine, while Levine had been given the brand name, Phenergan.

According to this article, dozens of lawsuits against generic pharmaceutical companies are being dismissed because of a Supreme Court decision last year that said the companies did not have control over what their labels said and therefore could not be sued for failing to alert patients about the risks of taking their drugs. Thus, choosing between a generic or brand-name drug may well become decisive regarding the patient’s right to seek compensation from the drug company. These different decisions are surprising since generic and brand name products are exactly the same thing, the only difference being the use of a brand and, in some cases, the company that produces them.

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