The West Virginia legislature has passed a bill that adopts the learned intermediary rule for the state. This doctrine has major implications for liability in cases involving dangerous prescription drugs and defective medical devices. According to the learned intermediary doctrine, when a drug or device manufacturer provides a warning to the physician about the product, its intended uses, and its potential complications, and the doctor then interacts with the patient in regard to the drug or the device, the manufacturer cannot be held liable for damages arising from the consumer’s use of the drug or device.
Since its inception in 1995, the learned intermediary doctrine has been controversial. Opponents of the doctrine argue that it prevents consumers who have suffered severe harm due to a defective device or drug from recovering compensation from the manufacturer or distributor.
Proponents of the doctrine state that a physician who interacts with the patient after receiving instructions from the manufacturer or distributor is in the best position to inform the consumer. They also argue that manufacturers typically do not have direct routes to marketing their devices and pharmaceuticals to patients and consumers directly and that imposing a duty on the manufacturer would put an undue burden on the physician-patient relationship.
One recent exception to the learned intermediary doctrine that has gained notoriety is based on the recent uprise of direct-to-consumer advertising. Many drug and device manufacturers have started using TV commercials, radio commercials, pamphlets, and other marketing materials to sell their products and gain consumers’ attention. While some states have adopted a direct-to-consumer marketing exception to the learned intermediary doctrine, others have refrained from doing so.
Over 20 states have officially adopted the learned intermediary doctrine, while the doctrine has been applied by courts in at least 48 states.
If you have suffered injuries as the result of a dangerous pharmaceutical drug or medical device, you may be entitled to compensation. There are a number of claims that you can bring against a variety of potential defendants. In states where the learned intermediary doctrine applies, the injured victim can bring a claim against the treating physician for failing to warn about the dangers or side effects of the medical device or drug. The plaintiff can also bring a medical malpractice claim to the extent the physician was negligent in prescribing the pharmaceutical or recommending the specific medical device. A successful plaintiff will be entitled to recover compensation for his or her damages, including medical bills, lost wages, diminished quality of life, and pain and suffering.
At Moll Law Group, we have helped many victims seek compensation after suffering injuries and damages as the result of a defective medical device or dangerous pharmaceutical. We know how devastating this experience can be for you and your family, and we can fight to help you pursue the settlement or the judgment that you deserve. We proudly represent clients throughout the United States, including in Illinois, New York, Florida, and Texas. Call us now at 312-462-1700 or contact us online to set up a free consultation today.