Friday, April 30, 2010

Thoughts on the "learned intermediary doctrine"

In a comment on whether the ban on "off label marketing should be eliminated (available here), the blog Tort Deform makes the case for abolishing the "learned intermediary doctrine:"

 . . . I would . . . end the learned intermediary doctrine. The learned intermediary doctrine traditionally prevents consumers from suing pharmaceutical companies for failing to warn consumers of the dangers of a prescription drug. Instead, a consumer has to sue the pharmaceutical company for failing to warn doctors of the dangers of a specific drug. Because consumers can’t just buy a prescription drug on their own, they have to get a prescription from a doctor[, the] doctor acts as an intermediary between the consumer and the pharmaceutical company. And it is the doctor’s responsibility to ensure that the patient is a proper candidate for the drug. I believe if we abolished the learned intermediary doctrine, pharmaceuticals would be more forthcoming in their disclosures about specific drugs. Warning consumers about the dangers of a drug is different than warning doctors. Pharmaceutical companies would have to do more to educate the public than release a study in a medical journal, for example. More importantly, abolishing the learned intermediary doctrine would take into account how drugs are actually prescribed. In reality, many patients see a drug on TV and then decide they want that drug. They then get an appointment with their doctor, ask the doctor for a prescription, and the doctor writes the prescription with few if any questions. Instead of acting like a “learned intermediary,” many doctors act like nothing more than a middleman, happy to collect an office visit fee in exchange for a prescription for just about any drug a patient wants. Abolishing the learned intermediary doctrine would force pharmaceuticals to actively attempt to warn consumers about the dangers of specific drugs. This can only improve patient safety. 
 I agree.

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