DRUG company under scrutiny as pharmacist faces charges of diluting cancer treatments

Monday, August 27th 2001, 12:00 am

By: News On 6

KANSAS CITY, Mo. (AP) _ As a pharmacist battles federal charges that he adulterated cancer drugs, drug maker Eli Lilly and Co. faces increasing scrutiny amid allegations it missed an opportunity to stop him.

Robert R. Courtney was expected to appear before a federal judge Monday to plead innocent to charges that he diluted chemotherapy drugs. Federal authorities say the wealthy pharmacist has admitted tampering with the medications in an effort to increase profits.

Meanwhile, an attorney for relatives of Courtney's patients said he will file nine lawsuits in state court Monday against Courtney, his pharmacy and Eli Lilly. According to the attorney, Michael Ketchmark, the suits claim the Indianapolis-based drug maker had reason to believe Courtney was diluting the drug Gemzar but failed to notify authorities.

Courtney, 48, has been charged with eight counts of tampering with consumer products, six counts of adulteration of a drug and six counts of misbranding a drug. He is being held without bond.

The new allegations follow a Kansas City Star report on Sunday that Lilly salesman Darryl Ashley became suspicious of Courtney in early 2000 and at some point told superiors of his concerns.

The newspaper reported that the company acknowledged not telling authorities about Ashley's concerns. The company did its own investigation and determined that problems with Gemzar did not originate in its factory, the paper said.

In May 2001, Ashley told a physician, Dr. Verda Hunter, about a discrepancy he noticed between Courtney's purchases of Gemzar and what he billed Hunter. Hunter ordered tests to determine the drugs' concentrations and notified the FBI, triggering an investigation.

A spokesman for Lilly declined to confirm the Star's report when reached by The Associated Press on Sunday. But he said the company has acted responsibly.

``At Lilly we are committed to patient safety,'' Edward West said. ``Keeping the facts in mind, if our sales representative had not done what he did this unfortunate situation might still be gong on.''

Still, Ketchmark said his clients want Lilly to disclose what exactly the company knew and when.

``What they haven't talked about is the 18-month time period between their salesman's concerns and the investigation,'' he said. ``In that time period, people are receiving diluted drugs.''

While federal law doesn't require Lilly to go beyond its internal investigation, Ketchmark said state law requires the company to do more.

In four of the lawsuits that attorney Ketchmark planned to file Monday, family members of cancer victims allege that Lilly's silence contributed to a relative's death. In the other five cases the patients are still alive.

Ketchmark previously filed another wrongful death lawsuit on behalf of the family of Adelia Atwood.

Federal authorities have said that at least one person who received Courtney's drugs has died. But Courtney's attorney, Jean Paul Bradshaw II, said authorities have not linked the pharmacist's weakened medicines to any deaths.

``There's no allegation in the criminal case that anything (Courtney) did caused a death of any sort,'' Bradshaw said. ``We haven't pulled out and looked at all the individual medical records, but I do not believe from what I know about the case that there will be any credible cause for a wrongful death.''

Authorities say Courtney _ who allegedly saved hundreds of dollars per dose _ was motivated by profit to dilute the expensive drugs. He also faced $600,000 in tax bills.

Court records said Courtney has admitted diluting cancer drugs from November 2000 through May 2001. The FBI says samples of drugs tested after being prepared by Courtney's Research Medical Tower Pharmacy generally contained less than half of the medication prescribed.

Prosecutors have said they have evidence of at least 150 instances of dilution, which could have affected hundreds of patients. But Bradshaw has said Courtney's dilutions affected only about 30 to 35 patients. Many of Courtney's patients used multiple doses.