Medical Device Makers and the Games They Play

It is old hat in the medical device and drug industry; do not ask for permission—simply deal with the fall out of asking for forgiveness.

The US Attorney’s Office announced indictments against a number of Stryker executives for lying to the Food & Drug Administration. Apparently, Stryker was given permission for “limited humanitarian” use of its bone growth products, OP-1 implant and OP-1 Putty, used in spinal and long bone surgeries.

The Stryker products were only supposed to be sold in limited quantities and were only approved for use in treatment of certain rare diseases. It may be hard to believe that Stryker reportedly invented a number of other uses for these products and promoted them to physicians.

Stryker is one of the companies, together with Breg and IFlow, who are being sued over doing this same thing with pain pumps. It has become clear in the pain pump litigation that manufacturers knew that the FDA would require clinical trials (and resulting cost overhead for the manufacturer) in order to promote the use of pain pumps directly into joint spaces. Although manufacturers knew that use of the pumps in the joint spaces was prohibited without prior clinical trials, they promoted that use to physicians anyway. In fact, some of the manufacturers went so far as to promote the use and also promote methods that would allow for higher charges if the pain pump was used the way manufacturers were promoting it.

Now, these same manufacturers are trying to argue in the pain pump litigation that no good scientific studies exist that supports the causal relationship between pain pump use in joint spaces and a devastating condition called chondromalacia. Effectively, manufacturers are trying to convince judges to dismiss lawsuits based on their violation of the FDA requirements and their failure to conduct the scientific studies which the FDA would have required had the manufacturers complied with the law.

So, when selling potentially dangerous drugs and medical devices, apparently the theory is do not ask for permission; reap the profits; and pay for forgiveness later.