HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, January 24, 2005

Thoughts on the Vioxx Litigation

Vioxx1 In this week's New Yorker, James Surowiecki has a short article on the issues surrounding the tort system and its role in determining which drugs are on the market.  He uses the Merck/Vioxx upcoming litigation to express his concerns about the tort system.  He states,

"Questions about Vioxx’s potential risks have been common since its introduction, six years ago, especially after a 2000 trial suggested that the drug increased the risk of heart disease. Merck did not hide these data, and beginning in 2002 the drug’s label included a warning about the possible cardiovascular risks. Some critics, however, have suggested that the company soft-pedalled the dangers. Internal company documents show that Merck employees were debating the safety of the drug for years before the recall.

From a scientific perspective, this is hardly damning. The internal debates about the drug’s safety were just that—debates, with different scientists arguing for and against the drug. The simple fact that Vioxx might have risks wasn’t reason to recall it, since the drug also had an important benefit: it was less likely to cause the internal bleeding that aspirin and ibuprofen cause, and that kills thousands of people a year. And there’s no clear evidence that Merck kept selling Vioxx after it decided that the drug’s dangers outweighed its benefits. . . .

Obviously, there’s something wrong with a system that discourages the careful weighing of costs against benefits—we want companies to learn as much as they can about the downsides of their products. But companies like Merck, which spend hundreds of millions on ads targeting consumers, have themselves to blame, too. Instead of getting people to think about drugs in terms of costs and benefits, these ads encourage people to think of medicine in the same way they think of other consumer goods. It would be one thing if Merck had marketed Vioxx only to people who really needed it—people who couldn’t take ibuprofen or aspirin safely. Instead, the company marketed it aggressively to everyone, so that some twenty million Americans had Vioxx prescriptions. That’s why the potential damages against Merck are so vast. If juries have a hard time accepting a risk-benefit trade-off when it comes to drugs, it’s in part because the drug companies have convinced them that no such trade-off has to be made."

The entire article makes for an interesting read.  As our nation considers tort reform, the question becomes should we cap damages or should we engage with manufacturers and the public to educate them about the trade-offs and the science behind certain pharmaceutical products.  In addition, the FDA may want to strenghen some aspects of its review of these products and their ads. [bm]

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