Written by GAP Executive Director Mark Cohen. Versions of this op-ed also appeared in: The Roanoke Times (VA), Springfield News-Leader (IL), KC Community News (KS), Mountain Mail Newspaper (CO), Athens Messenger (OH), Daily Republican Register (IL), Portsmouth News Herald (NH), Fall River Herald News (MA), Hugo Daily News (OK), Seacoast Online (ME), and Aventura News (FL)
Congress recently missed an opportunity to make meaningful changes in the way drug-makers peddle their often dangerous products. Wooed or intimidated by pharmaceutical corporations’ lobbying might, the Senate and House passed an FDA reauthorization bill that caters to the marketing interests of drug manufacturers and broadcasters, virtually ignoring public safety. Fortunately, not all courts are as willing as Congress to turn a blind eye to the distorting impact of direct-to-consumer (DTC) advertising.
The issue facing state Supreme Court justices this summer in West Virginia v. Johnson & Johnson was whether drug manufacturers are subject to the same duty as other manufacturers to warn consumers about their product risks. The traditional view was that they were not. Courts reasoned that prescription drugs are unique because they are taken at the direction of a “learned intermediary,” a licensed physician. The manufacturer need only inform physicians of risks; drug-makers have no legal obligation to warn the patient whatsoever.
But as the West Virginia Supreme Court concluded – and New Jersey’s highest court before it – this doctrine is an anachronism, borne of a completely different epoch in American medicine. In a 1948 wrongful death suit, the trial court noted that the manufacturer never advertised or made any representations about the product to the patient. How then could it be liable? The drug’s use was solely the choice of a doctor – the “learned intermediary.”