Kaiser May Be Liable for Gabapentin Prescription
By PHILIP A. JANQUART
Courthouse News (CN)
June 28, 2012
Kaiser Permanente cannot dismiss claims over the suicide of a patient taking anti-seizure medication, which occurred six months after the medical consortium won $142 million from drugmaker Pfizer over such dangerous side effects, a federal judge ruled.
Pfizer introduced Neurontin to treat epilepsy in 1994, selling about $200 million worth of the product to Kaiser over the next decade. But in 2004, Pfizer paid $430 million to settle federal charges over its marketing of Neurontin for off-label uses that were actually ineffective.
By March 2010, a jury awarded Kaiser $142 million for Pfizer's fraudulent marketing.
Six months later, Kaiser patient Charles Borreani killed himself. He had been prescribed up to 3,200 mg a day of gabapentin, the generic form of Neurontin, to treat neuropathy, a loss of sensation in the hands and feet.
Borreani's family sued Kaiser in Alameda County Superior Court, claiming that the hospital giant knew about the dangerous side effects associated with Neurontin but still pushed the drug to patients.
They say Kaiser knew that patients taking Neurontin in high doses suffered from feelings of suicide, and that it promised the court after winning the $142 million verdict that it would re-educate its doctors about Neurontin over the next 60 days.
Kaiser removed the case to U.S. District Court for the Northern District of California, claiming that federal jurisdiction arose under the Employee Retirement Income Security Act (ERISA). It moved to dismiss on the same basis since Section 502 of ERISA pre-empts any claims that might otherwise be brought under the federal law.
But U.S. District Judge Richard Seeborg called Kaiser's logic flawed last week and remanded the case to state court.
Borreani bought his Kaiser health care plan through his employer, but his family's claims do not relate to plan administration, the court found.
"Plaintiffs could not have brought this action under § 502 because they do not seek to recover benefits, to enforce their rights, or to clarify future opportunities under the plan," Seeborg wrote. "Rather, they simply assert state tort claims arising from defendants' alleged negligence in maintaining their drug formularies and in educating Kaiser physicians."
"At base, the conduct underlying the FAC does not relate to ERISA plan administration," he added, abbreviating first amended complaint. "Rather, the behavior is grounded soundly in allegations of negligence, fraud, and misrepresentation."