In May, the United States Supreme Court denied a request by some of the largest drug companies in the world, to block a patient lawsuit about the size of eye drops. According to the Associated Press (AP): “The patients said that drug companies’ bottles dispense drops that are too large, leaving wasted medication running down their faces. The patients said they would pay less for their treatment if their bottles were designed to dispense smaller drops.” Also from the AP, the patients suing the drug companies “calculated that their out-of-pocket payments on wasted medication range at least from a few dollars to a few hundred dollars.”
The drug companies who made the request to the Supreme Court — including Merck, Allergan, Pfizer and Bausch & Lomb — tried to block the lawsuit, on various grounds including that if this case was allowed to proceed, that it would create a slippery slope allowing people to sue manufacturers for trivial matters such as: “peanut-butter producers that sell their wares in traditional jars, rather than jars that unscrew at both ends (thus leading to less wasted peanut butter),” according to the lawyer, Kannon Shanmugam, who represents the drug makers.
I am pleased the Supreme Court decided to let the lawsuit proceed, because it sends a message that people in this country have a right to be treated fairly. It also rebukes the arrogant argument made by Mr. Shanmugam — a partner at one of the nation’s top law firms — who is probably compensated millions of dollars a year but makes light of the financial strain that wasting costly eye drops put on patients and their families.
As someone who spent most of his adult his life in politics in South Mississippi — one of the poorest parts of the country — I regularly hear from friends, family and former constituents asking for help to pay for their medications. Recent data found that one in four Americans refuses medical treatment because they cannot afford it. Being unable to afford eye drops that could prevent your child from going blind is not the same as failing to get the last of the peanut butter out of a jar.
Besides the slippery slope argument, another reason the drug makers asked the Supreme Court to block the lawsuit, is because they asserted that no such eye dropper — that could dispense smaller drops — exists. Which is clever, but a soon to be flawed argument. One company, called Eyenovia, is likely to get approval from the Food and Drug Administration to begin selling their product that uses laser printer technology to dispense the correct amount of the drug in the patient’s eye. They are seeking to treat glaucoma, dry eye and even myopia, which is a growing problem among young people that currently lacks an effective pharmacological treatment.
Eyenovia’s technology is an important advancement, because the human eye can only hold 6-8 microliters of medication, yet the typical eye dropper dispenses 30-50 microliters. Each drop from an eye dropper contains as much as five-times the amount of medication your eye can hold. That’s why even if you were able – on the first try – to get a single eye drop of medication into each eye, you are still wasting a majority of the product.
But anyone who has ever used eye drops knows that getting a single drop in each eye, on the first try, is unrealistic. Recent research: “found that among experienced hypertensive and glaucoma patients, the average number of drops put in the eye per successful instillation was 1.8 — almost twice the correct amount. Even more amazing, the patients used an average of seven drops in each attempt.”
Wasting such a large portion of the eye drops is problematic. If a doctor prescribes eye drops for three weeks, and you run out in two weeks, you aren’t being medicated for as long as the doctor instructed. Also, if you run out of eye drops prematurely, your insurer may refuse to cover a new bottle until a later date. That means you can either pay out of pocket or wait until your insurance company will cover your eye drops. Both are unacceptable.
The president recently announced that bringing down drug prices is going to be a priority for his administration. This is good news. Going forward, we should reward pharmaceutical companies that develop innovative treatments to accomplish goals like curing cancer or more effectively delivering drugs like Eyenovia. But, as healthcare spending in this nation continues to skyrocket, the government should block practices like drug companies intentionally selling eye droppers that waste money and jeopardize the wellbeing of patients.
Ronnie Shows is a former Democratic member of the United States House of Representatives from Mississippi.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
