Free Prozac in the Junk Mail Draws a Lawsuit
By: Adam Liptak
NY Times, July 6, 2002
FORT LAUDERDALE, Fla., July 3 — The unsolicited
Prozac arrived in a hand-addressed manila envelope. It came from a
Walgreens drugstore not far from here, and there was a "Dear
Patient" form letter inside.
"Enclosed you will find a free one month trial
of Prozac Weekly," it said. "Congratulations on being one step
to full recovery."
The mailing infuriated one recipient, a 59-year-old
home caregiver who filed a class-action lawsuit this week in state court
here.
"They're going after me because I have a
problem," said the caregiver, who agreed to an interview in her
lawyer's office here on the condition that her name be withheld. "It
bothers me to think that somebody could get into my medical records and
start sending me dangerous medications."
The suit says Walgreens, a local hospital, three
doctors and Eli Lilly, which makes Prozac, misused patients' medical
records and invaded their privacy. It also accused the drugstore and Lilly
of engaging in the unauthorized practice of medicine.
The plaintiffs' lawyers said they did not know how
many people received the mailings. "It could be anywhere from several
dozen to several thousand," said Gary M. Farmer Jr., one of the
lawyers.
The suit seeks an unspecified amount of money and an
injunction to prohibit further mailings.
Legal experts said that sending drugs through the
mail could be criminal if the recipient does not have a prescription. How
privacy law applies to medical records used in marketing is an open
question.
A Lilly spokeswoman said that sending unsolicited
drugs through the mail was against company policy and inappropriate.
"While Lilly supports informing people about new treatment options
and encouraging them to discuss these options with their doctor, what
occurred in Florida appears to go beyond this," the spokeswoman,
Debbie Davis, said.
Experts in medical privacy have been critical of
mailings of targeted marketing materials based on information in patients'
pharmaceutical and medical records. They say the mailing of drugs is an
unwelcome innovation.
"This is appalling in every possible way,"
said David L. Pearle, a professor of medicine at Georgetown University.
"It's an escalation of a deplorable practice."
Joy Pritts, senior counsel at the Health Privacy
Project in Washington, said that "this is one step beyond what we
normally see." On the other hand, Ms. Pritts continued, the Prozac
mailing was part of "the increasing trend for the commercialization
of health care information."
"It's being bought, sold and used like any other
commodity," she said, referring to patients' medical information.
"This has nothing to do with treating the patient. This has
everything to do with generating profits."
Aggressive marketing tactics, experts said, are often
linked to plummeting sales. Lilly's patent for Prozac expired last August,
and the drug's sales have dropped more than 80 percent as generic
equivalents have become available. But Prozac Weekly is still under
patent.
John Newton, a Florida assistant attorney general,
said that a whole range of pharmaceutical marketing practices was legally
problematic.
"We are looking at these practices," Mr.
Newton said. "The office of the attorney general believes many of
these practices violate Florida unfair and deceptive practices laws."
The Prozac mailing, he said, may have been unlawful
for reasons unrelated to privacy.
"The safety concern is a legitimate
concern," he said, referring to the danger that the drugs would be
found by children or used inappropriately.
"Another concern," he said, "is, if
she doesn't have a current prescription for Prozac, it's an illegal
distribution" of a prescription drug.
The form letter that accompanied the Prozac was
apparently prepared by a sales representative for Lilly; it was signed by
the caregiver's doctor and two other local doctors.
"We are very excited to be able to offer you a
more convenient way to take your antidepressant medication," the
letter said. "If you wish to try Prozac Weekly, stop your
antidepressant one day before starting Prozac Weekly, then take Prozac
Weekly once a week thereafter."
Stephen A. Sheller, a Philadelphia lawyer who also
represents the plaintiffs in the lawsuit here, had a suggestion for drug
companies inclined to mail unsolicited samples.
"What they should be doing is developing a drug
to diminish their greed," Mr. Sheller said.
The lawsuit says the lead plaintiff, the caregiver,
identified only as S. K., has had a diagnosis of depression, "which
she maintains in the strictest of confidence due to potential public
embarrassment and employment repercussions." It says she did not have
a prescription for Prozac.
"I hadn't been using Prozac for seven years or
better," she said in the interview. "It was a matter of a few
months. It didn't agree with me."
She was living in Massachusetts when she tried the
drug. She said her doctor here, Lise Lambert, had not discussed Prozac
with her, much less prescribed it.
Dr. Lambert, one of the doctors who signed the
"Dear Patient" letter, is a defendant in the suit. She did not
return calls for comment. Her medical group referred questions to Holy
Cross Hospital, which is also a defendant.
A hospital spokeswoman said the hospital did not
comment on matters in litigation. In early June, however, the hospital
issued a statement to The Sun-Sentinel in South Florida.
"This particular effort," it said,
"was the result of well-intentioned, respected physicians being given
an opportunity to arrange for some of their patients to receive sample
medications, at no cost, through proper, licensed pharmacy channels."
The plaintiff here said Dr. Lambert admitted signing
blank letterhead, which the Lilly representative added text to and
delivered to the drugstore for mailing.
Whether or not Dr. Lambert reviewed the letter before
signing, Dr. Pearle said, the mailing was improper.
"It's highly unethical," he said,
"because it's clear that the letter is not an outgrowth of the
doctor's relationship with the patient."
The plaintiff said the packaging that Lilly uses for
the samples worried her, too.
"They were very attractive because they had
little beads inside a capsule," she said. "If my grandchildren
were there and they got a hold of this little package, they would have
thought it was candy."
Michael Polzin, a spokesman for Walgreen Company,
said the drugstore did nothing improper.
"We received a valid prescription from the
doctor," Mr. Polzin said. "All of the prescriptions in this
program were faxed by doctors' offices. It was our understanding that it
was going out to people who are on Prozac."
Mr. Polzin said Lilly reimbursed the pharmacy for the
samples. It is not clear whether the doctors who signed the letter were
compensated for doing so.
Mr. Polzin said that prescription drugs were
routinely sent through the mail and that the practice did not pose any
safety hazard.
Ms. Davis, the Lilly spokeswoman, apologized for the
mailing.
"It is inappropriate for Lilly sales personnel
to support programs in which medicine is mailed to patients without the
patient's request," she said in a statement.
"We understand why people should be concerned
about receiving unsolicited prescriptions in the mail. To the extent Lilly
personnel may have participated in this program, Lilly apologizes to those
patients affected by it."
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