GSK before disputes tribunal over Marevan recall

30 June 2010

By Rajesh Kumar

Auckland pharmacist Albert Jordaan has taken GlaxoSmithKline to the disputes tribunal to recover payment for the work he did on the consumer level recall of Marevan 3mg in January.

The tribunal, in its order of 22 June, has dismissed GSK’s request to either delay the case or transfer it to the Manukau District Court due to the complex nature of the nation-wide recall.

It has decided to go ahead with adjudicating the matter at a date to be decided soon.

The pharmaceutical giant is already facing legal action in the district court from Otara pharmacist Ian Johnson over payment for administering the same recall.

The disputes tribunal case involves an invoice for $438.76 which Mr Jordaan sent to GSK in March. He itemised the work done on the recall including calling relevant patients, collecting recalled tablets from them, counselling, dispensing replacement tablets and repacking them in blister packs.

GSK, however, offered to refund him only $33.76 towards direct costs such as replacement packaging and redelivery.

“Reimbursing pharmacists for their time in administering the recall and patient counselling is a separate challenge,” GSK general manager Geoff McDonald wrote in his reply to Mr Jordaan.

He said the company sought external advice when reimbursement was first requested and determined there was no regulation or legislation under which such payment could be made.

Mr Jordaan refused to accept GSK’s cheque for $33.76. In an irate written reply, he said there was no “service fee” involved in the recall and the government did not pay the pharmacy anything in such cases.

“Even if I could somehow claim a government fee, I see no reason why the taxpayer should pay for (GSK’s) mistakes,” he said.

In the subsequent application before the tribunal, Mr Jordaan said his case was quite straightforward: GSK asked him to manage the recall of Marevan tablets and his Golf Road Pharmacy complied and subsequently invoiced GSK for the work done. Since the matter involved a small amount, he said, the tribunal should adjudicate.

The GSK, in its response to the tribunal, gave a detailed reasoning for the recall and its process and requested the matter either be delayed or transferred to Manukau District Court because the dispute relates to a nationwide recall of Marevan in which hundreds of pharmacists like Mr Jordaan were involved.

GSK’s Mr McDonald said a decision in the tribunal had wide-reaching implications for all pharmacists who had an interest in the outcome. Referring to Mr Johnson’s case in the district court, he said: “…the proceedings essentially relate to the same claim being made by Mr Jordaan. On that basis, we consider it appropriate that this dispute await the outcome of the district court proceedings (or alternatively be consolidated with the district court proceedings).

“In order to provide a degree of comfort to Mr Jordaan I would like to suggest that, because GSK will be legally bound by the outcome of the Manukau District Court proceedings, this will provide an answer to his claim.”

Since there are currently two formal claims against GSK, the company said there was potential for inconsistency in either the reasoning for a particular outcome or the outcome itself.

Mr McDonald said the health ministry review of recalls was already focussed on providing guidance to the sector on recall procedures and compensation for pharmacists.

Mr Jordaan argued he is a small, neighbourhood pharmacy whereas the GSK is a big company that can afford legal costs in a district court proceeding.

The disputes tribunal, in its 22 June order on the question whether the case needed to be transferred to the district court, said while remuneration to pharmacists was an industry-wide issue:

“The tribunal makes decisions on each claim before it based on the facts presented during that hearing and the law that applies to the particular matter in dispute. Unlike court decisions, all decisions have no appreciable precedent value.”

Referee TRJ Jeffcott said the extra cost and delay the transfer of the case would result in was unnecessary.

“The law that applies to this dispute is no more complex than the law that the tribunal is required to consider on a daily basis. [Therefore] there is no good reason why the applicant’s right to have [his] claim against the respondent heard by the tribunal should be compromised by the interests of third parties.”

The matter is scheduled to come up again before the tribunal shortly.

 

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