Vioxx Recall and Compensation/Subrogation Issues

Saturday, October 9, 2004 | 0

On September 30, 2004, the pharmaceutical giant, Merck & Co., pulled the pain killer, Vioxx, from the market. The much prescribed medication for back and other joint pain/injuries has been linked to patients taking this medication to be twice as likely to have a heart attack or stroke. The ramifications for the workers' compensation insurance industry could be significant because any claims of heart attack or stroke resulting from the use of Vioxx while treating for an already compensable injury would in all likelihood also be compensable. There is likely to be an influx of compensable consequence claims for individuals who have been taking this medication.

While each case needs to be carefully evaluated to see if it meets the criterion for linking the Stroke or Heart Attack to the use of Vioxx, there is the potential for recovery through a subrogation action against Merck & Company.

Vioxx is a widely prescribed drug with over 100 million prescriptions having been written since it went on the market in 1999. It is believed approximately 2 million patients are presently taking Vioxx. Vioxx comes from a class of painkillers called Cox-2 inhibitors to which Celebrex and Bextra belong although neither of those has been linked to heart problems.

The decision to withdraw the drug from the market was based upon a large three year clinical trial at first used to see if Vioxx could be used in treatment of precancerous growths. It was found that patients taking Vioxx for 18 months or longer compared to those taking a placebo were twice as likely to have a heart attack or stroke. The trial involved 2,600 patients, half of whom were prescribed 25 milligrams and the other half given a placebo. Approximately 15 out of 1,000 patients who took the Vioxx suffered the heart attacks or strokes versus 7.5 who took the placebo. It is believed Merck & Co. had earlier indications of this danger.

In one state, Alabama, an attorney has already filed 58 separate actions seeking recovery from Merck. It is anticipated that a full class action may be filed against Merck & Co. by the first quarter of 2005. It could be easily imagined that a state as litigious as California will see numerous court cases as well as additional workers' compensation claims resulting from workers who have been prescribed this medication.

As indicated initially, payments made to a claimant may not be lost money and recoverable in a subrogation claim against Merck. Although in California, there can be no subrogation claim made for medical malpractice; any claims made against Merck & Co. would be for strict products liability which is permissible under California law. Further, a carrier or employers claim may also be included in any class action potentially made against Merck.

By Michael Jonescu, Managing attorney of Adelson, Testan, and Brundo & Popalardo Subrogation Department; (714)245-8888 or michaeljonescu@atblaw.net.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.