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A Wisconsin jury has reached a defense verdict in favor of a physician who prescribed the diet drug combination fen-phen to a woman who developed serious heart valve problems as a result. According to attorneys involved, it is the only case in the United States against a physician for prescribing fen-phen that has come to a verdict. Dr. Gregory Gerber of Lake Geneva, Wis., began prescribing the drug combination of fenfluramine and phentermine in the spring of 1996 to plaintiff Barbara Jeffries, an elementary school principal. Jeffries participated in a class action against American Home Products (now known as Wyeth), the New Jersey pharmaceutical company that manufactured fenfluramine. The company settled the cases, including the litigation with Jeffries, for $3.75 billion in August 2000. Following the settlement with American Home Products, Jeffries continued litigation against her doctor on the theory that he should have monitored her more closely, said her attorney, Tom Basting of Milwaukee’s Brennan Steil Basting & MacDougal. The jury in the Gerber case was told there had been litigation against American Home Products, but was not told any details of the settlement. “We felt there was more responsibility on the part of this physician than most physicians,” Basting said. “Our position was he should have never prescribed the phentermine because she was hypertensive and he did not have that under control.” Basting noted that Gerber refilled fen-phen prescriptions monthly for 14 months for Jeffries, despite an advisory from the Food and Drug Administration that the drugs not be prescribed for more than 90 days. Gerber’s lawyer, Michael Malone of Chicago-based Hinshaw & Culbertson, successfully argued that Jeffries received reasonable care based on what was known at the time about the risks of fen-phen. In the spring of 1996, when Gerber prescribed the drug combination to Jeffries, the combination of fenfluramine and phentermine was being prescribed to an estimated 6 million obese Americans, with dramatic weight-loss results. Jeffries lost weight but, as with hundreds of other fen-phen patients, the drug combination damaged two of her heart valves. “It is true the FDA recommended fen-phen not be used for more than 90 days and she used it for 14 months,” Malone said. “But our counterargument was that there were 18 million prescriptions written in 1996 for fenfluramine and phentermine. It was in common use by primary care physicians and specialists for obesity management.” Malone added that “Dr. Gerber saw her every two to three months, checked her blood pressure and weight. What he was doing was entirely consistent with what primary care physicians were doing around the country and there was no way to know there was a risk of heart valve damage. The risk was unknown and unknowable.” Basting presented expert testimony that he believed proved Gerber had not met a reasonable standard of monitoring and could have done more to protect Jeffries as the risks of fen-phen were becoming public knowledge. “We didn’t dispute that millions and millions of these prescriptions were given out, but our case was that other physicians monitored their patients,” he said. Basting said Jeffries does not plan to appeal the verdict. Jeffries v. Gerber, No. 99-CV005386 (Milwaukee County, Wis., Cir. Ct.).

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