August 31, 2017
Written by: Anthony Ivone
Product Liability, Medicine, and the Failure to Warn in Illinois
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Back in June, we wrote a post about strict product liability in Illinois. Today, we’re going to take a closer look at a particular type of product liability case—a pharmaceutical company’s failure to warn about the potential side effects of using its prescription medicine.

Imagine this scenario: You go to the doctor, complaining of some ailment. The doctor prescribes a drug that is supposed to help you get better. Because your doctor is a good one, he or she informs you of a long list of side effects so that you know what risks are involved.

Yet, after taking the drug, you begin to experience some other negative side effect that sends you to the hospital.

Can you sue the pharmaceutical company that manufactures the drug for failing to warn you about that side effect?


Failure to Warn Definition

A products-liability claim alleging that a product is defective because of its inadequate warning.

Failure to Warn Review: Marketing Defects

As we explained in June, strict product liability cases in Illinois involve one or more of three different types of defects. One of those is known as a “marketing defect.” A marketing defect exists when the manufacturer of a product fails to disclose an unreasonably dangerous condition associated with that product, or when the manufacturer fails to instruct on the proper use of the product.

Exception: The “Learned Intermediary”

However, there is a wrinkle in the law for failure-to-warn cases that involve prescription medicines. That wrinkle is known as the “learned intermediary” doctrine. Under this doctrine, a pharmaceutical company does not have to warn a patient directly about the risks associated with one of its drugs. Instead, so long as the company informs the prescribing doctor of a risk, it has fulfilled its duty to warn.

The idea behind the “learned intermediary” doctrine is that prescribing physicians are in the best position to understand the risks of using a drug and assess those risks in light of a specific patient’s circumstances. As a consequence, Illinois law puts the legal burden on doctors rather than drug manufacturers.

What happens if the pharmaceutical company doesn’t warn of a particular risk? In such cases, the “learned intermediary” doctrine wouldn’t generally apply to relieve the company of liability. However, if the physician knew from other sources about a risk, then the doctrine may still shield the manufacturer.

What About Pharmacists?

At this point, you may be wondering, “What about the pharmacist who dispensed the drug?” In general, pharmacists are as protected by the “learned intermediary” doctrine as pharmaceutical companies—even though they enter the picture after the prescribing doctor. Normally, they have no duty to warn the patient of the potential risks of using the drug.

However, Illinois courts have recognized two exceptions to the “learned intermediary” doctrine as applied to pharmacists. First, when a pharmacist “voluntarily undertakes” to warn a patient of potential risks, the pharmacist’s warning must be accurate. If the warning is not accurate, then the pharmacist may be subject to liability

In addition, when a pharmacist knows of a condition of the patient that could interact negatively with the drug—such as drug allergies—he or she must inform either the physician or the patient of the danger.

Closing Thoughts

As you can see, strict product liability cases involving prescription drugs raise several unique legal issues. If you’ve been injured by using a prescription drug or medical device, contact the knowledgeable attorneys at Costa Ivone, LLC, for help in pursuing your claim. They can help you understand your legal rights and guide you through the process of obtaining compensation for your injuries.

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