by Timothy A. Raimey, Jr., Esq.

Recent lawsuits against pharmaceutical companies alleging they are marketing powerful cancer treatment drugs for use in treating non-cancer pain have had mixed results. Pharmaceutical companies rejoiced after a 3rd Circuit Court of Appeals decision affirmed dismissal of a lawsuit against the makers of Actiq and Fentora, two powerful narcotics designed to help with breakthrough pain in cancer patients, but being prescribed for other diagnoses. Several workers’ compensation insurers filed the fraud lawsuit alleging the drug makers marketed the powerful drugs to doctors for use in non-cancer pain treatment. The Court of Appeals held that the insurers failed to specify the fraudulent statements or activities of the drug makers and therefore dismissed the lawsuit. However, in another case, the Oregon Attorney General recently reached a $1.1 million settlement agreement with a pharmaceutical company accused of marketing its powerful cancer drug for use in treating chronic back pain.

The debate and litigation over off-label drug prescriptions will continue for the foreseeable future. However, an insurer or third party administrator can take action to protect against rising drug costs and paying for expensive medications prescribed for off label use by carefully reviewing the medications the claimant is prescribed or sending the list of medications to in-house medical professionals or an independent physician for review. If there is an off label drug prescribed, perform a cost comparison, analyze whether there is a cheaper or more effective alternative and then challenge the physician by asking why the drug is being prescribed instead of the alternative. Sometimes a differing opinion from another medical professional can also influence the treating physician to make changes in the drug regimen, and sometimes denial of the off-label medication is in order.