“Only you and your doctor can make that decision.”
You’ve seen and heard those nine words – in prescriptiondrug commercials. To medical researchers they acknowledge the complexity of the human body, the fact that different people can react to the same medicine in different ways. To physicians they reflect the essence of the doctor-patient partnership and their oath: “To practice and prescribe to the best of my ability for the good of my patients.” To you, a patient, they emphasize a special bond that means much to your quality of life.
But to California personal injury lawyers, those words represent a barrier in their hunt for more big money lawsuits against pharmaceutical companies. So it would seem, looking at a bill their lobbyists recently brought to the Legislature in Sacramento.
The lawyers’ Assembly Bill 2690 would repeal drug companies’ basic protection against lawsuits over prescription medicines. We’re not talking about a defective drug. We’re talking about properly made andtested medicine that produced an unusual harmful outcome.
What if the lawyers’ bill became law?
It would bring a new duty to prescription drug manufacturersto directly warn consumers he same way they do doctors about possible prescription drug side effects.
A company’s legally safest course would be to give consumers the information that doctors get. Get a glimpse of that by Googling “drug package inserts” and discovering phrases like: “the influence of hepatic insufficiency on pramipexole pharmacokinetics.”
Even if you curled up with a medical dictionary and translated, you still wouldn’t know how the medication you’re considering might interact with something you’re already taking.
Another idea: make drug companies buy everyone a copy of the Physician’s Desk Reference. You can read about all the drugs there, more than 3,000 of them. The “PDF” runs 3,500-plus pages and weighs about the same as a small Dachshund.
Some warnings in the PDF might cause patients to overreact, to stop taking their prescriptions or quit following their doctor’s orders. We’d see lawsuits over that, too.
Litigation spawned by AB 2690 could cause some useful drugs to be pulled off the market altogether.
Lawyers behind AB 2690 contend that drug companies should face lawsuits over perfectly good prescription drugs because the companies advertise directly to the public. What’s wrong with you asking your doctor about a medicine you learned about on television? Isn’t talking with your doctor about drugs and treatments just as much a part of taking personal responsibility for your health as talking with your doctor about diet and exercise? Promoting personal responsibility for health is a major mission these days. We should not let the lawyers undercut it.
Prescription drug ads don’t send people running out to self-prescribe medicine any more than lawyer ads drive people into filing lawsuits on their own.
Prescription drugs can be sold only with authorization from physicians, whose training equips them to apply complex scientific risk/benefit data to each of their patients. Doctors’ crucial role in examining patients and choosing medicines has been the key to the successful development of complex pharmaceuticals.
No legislature has changed its law the way California personal injury lawyers want to. Courts – including federal – have for decades almost uniformly reinforced this prescription medicine rule. Over the past 10 years two state supreme courts (New Jersey and West Virginia) sided with plaintiffs lawyers in quirky split decisions that were more anti-advertising screeds than analyses of the facts in their cases.
The current law protects your health. A 2002 Wake Forest Law Review article observed that arguments like the trial lawyers’ collapse when you consider that the law “is primarily intended to ensure that information about prescription drugs is transmitted to the ultimate consumer in the most effective manner.” So until your health plan, insurer, or your own common sense tells you to see a lawyer instead of a doctor when you’re sick, the doctor-patient partnership law should not be repealed.