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Update on NY Learned Intermediary Bill

By James M. Beck and Mark Herrmann

We've already commented on what a bad idea the pending NY bill to abolish the learned intermediary rule is. Of course every defense lawyer who frequents this site already knows that, but if anybody out there needs persuading, here's some more information.

Or you can just go read the package insert for just about any prescription drug out there (just Google "package insert"), and think about what the average joe who needs a prescription drug is going to think if s/he tries to read that.

The excuse for the bill is that the drug manufacturer engaged in DTC (that's "direct-to-consumer" now, or "direct to court" if the bill passes) advertising - which is supposed to be bad. See "Justification." (go here and type in "S3157").

But what's abolishing the learned intermediary rule supposed to accomplish?

All it would do is increase DTC advertising - the supposed evil - since companies will henceforth be forced to deal directly with patients in each and every case, even where the patient never saw the ad.

Also the "justification" suggests that DTC information isn't all that reliable - but abolishing the learned intermediary rule would only take the most knowledgeable person, the doctor, out of the equation altogether. Again, what's proposed as a "cure" would only aggravate the supposed symptoms of the hypothetical disease.

In short, the "justifications" are incoherent, and in all likelihood they only serve as a fig leaf for what's really just a hand out to the plaintiffs' bar.

Remember that pledge to cut the costs of healthcare that the President extracted earlier this week? Those savings will never exist if legislation like this passes. There's no such thing as a free lunch - or free liability. It just gets passed along as a cost of doing business. If folks want what amounts to national health insurance, they can do a whole lot better than tort litigation with its 33%+ contingent fee administrative costs.

Anyway, we've been told by a source we consider unimpeachable that this monstrosity is up for a vote before the Consumer Protection Committee of the NY State Senate on Monday. If you know one the committee members, give him/her an earful before now and then.

Full post as published by Drug and Device Law on May 15, 2009 (boomark / email).