Drug companies owe consumers a duty to assure that their drugs, medications and medical devices are reasonably safe when used as intended.
Drug Manufacturers' Responsibilities
Too often, a pharmaceutical company will create an unreasonably dangerous product by failing to properly research a drug's possible risks before placing it on the market. In such instances, without being warned in advance of using the drug, human beings serve as unwitting guinea pigs.
A drug's approval by the Food and Drug Administration (FDA)
is no guarantee of its safety and won't shield a drug manufacturer from liability.
Before selling pharmaceuticals to the public, drug manufacturers are obligated to:
- Understand the drug's dangers and possible side effects
- Assure that the public is informed of the risks
The means used to thoroughly inform the public vary with the nature of the pharmaceutical. With non-prescription drugs, the manufacturer's warning is conveyed to users by proper labeling and enclosures. Simple written warnings however, without a physician's intervention between manufacturer and consumer, will not render all pharmaceuticals safe. The use of certain medications requires a doctor's supervision.
Prescription drugs represent a class of pharmaceuticals, which require the supervision of a learned intermediary, such as a physician. With such drugs, the manufacturer has a duty to warn only the intermediary, not the consumer. In most cases, as long as the drug company properly informs the physician of the drug's dangers, the company has fulfilled its duty to the public.
Doctors' Responsibilities To Patients
Before a doctor prescribes a pharmaceutical to a patient, he or she is duty-bound to tell the patient of the drug's risks, so that the patient is capable of making an informed decision in determining whether or not to take the drug. If a doctor fails in his or her duty to relay the manufacturer's warning to you the patient, the doctor will usually be responsible, not the drug manufacturer.
Doctors know that when they prescribe drugs, their knowledge concerning the medication is generally far superior to the patient's. Consequently, a physician understands that the patient ordinarily relies heavily on the doctor's judgment. Once the doctor has been advised of a prescription drug's hazards, the doctor and not the patient, is in a position to understand whether the drug is appropriate for a particular patient.
Likewise, the physician should take precautions against over-prescription. Because the doctor is well aware that the patient normally relies heavily on the doctor's judgment in prescribing such drugs, the doctor should readily accept responsibility for the patient's safety with regard to the prescription drug.
Pharmacists' Responsibility to Consumers
Pharmacists are legally liable for mistakes made in filling prescriptions. With the volume of prescriptions increasing, many pharmacies are understaffed and exhausted workers make more mistakes.
As online pharmacies flourish, consumers can lessen the chances of getting a bad prescription by following these guidelines:
- Find out whether your state requires prescriptions prescribed only by a physician properly licensed in your state
- Check the website to see if it's registered with the National Association of Boards of Pharmacy (NABP), with the presence of a Verified Internet Pharmacy Practice Site (VIPPS) seal somewhere on the website.
- Be wary of websites offering their own physicians for consultation. You have no way of knowing the physician's record or practice, and the physician has no way of knowing about your pre-existing conditions and other factors which could affect what type of medication should be prescribed.
- Watch out for hidden charges such as a "consultation fee" and high shipping costs
- Don't agree to any "waiver of liability" waiving your legal rights against the pharmacy. You should never have to agree to such a waiver in order to purchase prescription drugs.
Suing for Drug Injuries
In suing a drug manufacturer for injuries caused by pharmaceuticals, the usual theories of products liability apply:
- Strict liability
- Breach of warranty
If the doctor's conduct is to blame, a negligence suit in medical malpractice is justified.
Drug manufacturers and drug-prescribing physicians hold positions of trust and should expect that if their negligence causes damage, they will be held responsible.