The first issue that you and your attorney will want to cover is who can be sued. Patients who have taken Vioxx and have a heart attack or stroke probably have a cause of action against Merck Pharmaceutical, the manufacturer of Vioxx. Evidence indicates that Merck was aware that Vioxx might cause coronary problems even when Vioxx was approved. Subsequent studies showed that people who took Vioxx were at twice the normal risk for heart attack or stroke.
Another possible party to a lawsuit may be the doctor who prescribed the Vioxx. Several studies were available shortly after Vioxx first became available showing the increased risk of heart attack and stroke. In 2001, the FDA required Merck Pharmaceutical to notify health professionals that health risks had been minimized and, in some cases, false claims had been made about the drug. If your health care professional prescribed the drug, particularly after that letter came out, you may have a medical malpractice claim. This may especially be true if you had a preexisting condition that your doctor knew about that made it more likely that you would have a heart attack or stroke.
Other possible plaintiffs may include the pharmaceutical sales representatives who worked with your clinic or the pharmacist who filled the prescription. To sustain a claim against the sales rep, you would need to show that the sales rep either shielded doctors from information about Vioxx or provided some type of incentive that was sufficient to persuade doctors to prescribe Vioxx in cases where they should not have done so. This information would probably be available from your doctor or clinic, but it is highly unlikely they would share this information with you. A case may be brought against the pharmacist if he or she did not properly warn you of the side effects of taking the drug; however, the pharmacist’s defense is going to be that it was the duty of the doctor to determine whether it was appropriate to prescribe the drug in the first place. Therefore, these are not the strongest parties to go after in a lawsuit.
Your case will most likely be brought as a product liability case – in other words, the manufacturer of the drug put the drug on the market even though it was unreasonably dangerous. It is well-documented that even when Vioxx was first put on the market, Merck Pharmaceutical’s own studies showed that there was some type of increased risk of cardiovascular problems. The FDA also sent several warning letters to Merck and finally required that (a) Merck notify the doctors who were prescribing the drug and (b) Merck change the label on the drug, and (c) that Merck take the drug off the market altogether.
Merck will argue that you had a preexisting condition that made the use of Vioxx inappropriate or that your preexisting condition caused the heart attack or stroke rather than the Vioxx use. This may result in your doctor being sued in a malpractice action for the failure to properly safeguard your health. You would argue that your doctor was negligent in allowing you to take Vioxx, given your past medical history, or that your doctor did not sufficiently monitor you while you were taking the Vioxx.
In most cases, however, Merck will probably be held liable to some degree for allowing Vioxx to be on the market. An action against your doctor may also be warranted, depending on the facts of your case and your medical history.