Blue Cross and Blue Shield of Massachusetts, Inc. took an unusual step last week when it filed multiple lawsuits seeking to recoup money from pharmaceutical giants Takeda and Eli Lilly & Co. The lawsuits stem from the ongoing Actos litigation, which is seeking compensation for patients who allegedly developed bladder cancer as a result of taking the diabetes medication.
Could it be sign that they see Actos as inherently flawed, or that Takeda knew about the dangers before the drug was approved and is guilty of particularly egregious acts?
Blue Cross, it seems, wants to get the drug companies themselves to cover the cost of health coverage linked to Actos. The company has filed more than 10 cases, claiming that the medical expenses of Actos patients should be subrogated (i.e., paid for) by Takeda. As justification, Blue Cross argues that since the Takeda either knew or should have known that Actos can cause bladder cancer, the company should be required to reimburse Blue Cross and Blue Shield for the insurance claims submitted by people who developed bladder cancer after taking Actos.
Blue Cross also claims that Takeda knew about the risk of bladder cancer in Actos patients following the results of an animal test carried out before FDA approval was sought. That’s a claim echoed by more than 6,000 patients who took legal action against Takeda. Plaintiffs point out that epidemiological studies have shown a link between Actos and bladder cancer, but say Takeda chose to ignore these findings and failed to let consumers know about the drug’s potential side effects.
Either way, when $9 billion was awarded in punitive damages in Louisiana federal court recently (along with $1.5 million in actual damages for two plaintiffs), Takeda had to know their troubles weren’t over. There are still lawsuits in state courts across the U.S., while the company has got into serious trouble with judges for failing to preserve, or actually destroying, key evidence relating to the development of Actos. Blue Cross’ decision to file these lawsuits, though, is still unusual. Insurance companies do not often seek to recover money directly from drug manufacturers. Could it be sign that they see Actos as inherently flawed, or that Takeda knew about the dangers before the drug was approved and is guilty of particularly egregious acts? It will be interesting to see how Takeda fights these charges.
It’s not too difficult to see why Blue Cross has made this move. The number of patients potentially affected by Actos is large, and if the company can set a precedent for claiming Actos costs back from Takeda, they stand to save a considerable amount. On the other hand, will a judge be happy to set such a precedent? Drug companies and insurance companies are powerful players in modern America, and changes that would allow insurers to seek healthcare costs associated with a faulty drug from that drug’s manufacturer would require tight regulation and be vulnerable to challenges and lengthy delays. If that ever impacted the coverage offered to patients themselves, it would be unacceptable.
For Actos patients right now, though, the wind is definitely in their favor. Takeda, it can be said, is not popular with the courts after the evidence destruction debacle. Legal action continues in state courts and the federal MDL. As for Blue Cross’ requests – we’ll have to see what the courts decide.