Archive for November, 2011

Selling health

Sunday, November 20th, 2011

Anybody who watches the evening news has seen them—advertisements for prescription drugs of all sorts to ease chronic pain, lighten depression, make things that won’t get up get up, and make things that won’t stay in stay in.  Each comes with a soothing voiceover noting that the drug in question “is not for everyone” and that serious side effects can occur.  The litany of admonishments ends with sage advice to “ask your doctor” and a repetition of the slogan that started the whole ad.   End scene.

In Centocor, Inc. v. Hamilton, an appeal from the Corpus Christi Court of Appeals, the Texas Supreme Court now wades into the issue of whether a drug manufacturer can still rely on the “learned intermediary” defense that has long been a staple of any drug or medical device manufacturing defendant’s legal arsenal.  The defense essentially says that, if you give appropriate warnings about the dos and don’ts of using a particular drug or device to a patient’s doctor—the one who is actually prescribing the use of the drug or device in question—you are insulated from telling the patient, himself.  The law assumes that the doctor will pass on any necessary warnings to the patient because the doctor himself has a duty to the patient.

Does this make sense?  Well, yes and no.  On the one hand, a doctor does have a duty to his patient—both in the form of prescribing medications where the potential risk is outweighed by the reward and of educating himself and informing his patient of the potential side effects.  On the other hand, no doctor can be expected to read his patient the entire entry on a drug from the Physicians’ Desk Reference (PDR)—which exhaustively details the results of every study on a particular prescription medication.  If you read those full descriptions any time the doctor gave you a prescription, you’d never agree to take anything again, as they read like a catalogue of disaster akin to something from the Old Testament.  (No arthritis treatment has ever been connected to a plague of locusts, but just wait.)  Moreover, with drug companies now taking it upon themselves to advertise directly to consumers, do they have a duty to give all sides of the story?  And not just the one that makes their product look like a miracle cure?  (Notably, these drugs that are being advertised still can be prescribed only by a physician, so a physician’s involvement and approval is still very necessary.)

In Centocor, set for oral argument on December 8, the Court will likely consider the effect of all those ads on the nightly news.  Does the direct marketing of drugs to consumers create a greater duty for the manufacturers of those drugs, and is it a duty that they cannot fulfill by merely providing warnings to an intermediary?

It’s a good question.  Right now, patients get all the spin but very little of the real information.  Even so, it seems like manufacturers should be able to tell prospective buyers that their product exists and that it might be helpful.  One thing is certain though:  if the Court makes inroads on the “learned intermediary” defense, those voiceover warnings in the TV ads are going to be longer and louder.  Either that, or expect a free copy of the PDR any time you visit the pharmacy.

Tip o’ the hat to the Supreme Court of Texas Blog.

UPDATE:  Surprise!!!  They held for the drug manufacturer.

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Texas justice

Sunday, November 6th, 2011

I often think that we in the legal community do a poor job of educating the general public as to what our system of justice is all about.  Few times has that been more obvious to me than in the recent case of Mary Ann Rivera, a woman accused of murder.  Rivera allegedly murdered her husband by dousing him with hot grease in 1970.  She was indicted the same year but was never served with an arrest warrant and never actually arrested until last month—41 years after the event in question.

There’s no statute of limitations for murder in Texas (or anywhere else in the U.S., that I’m aware), but the Constitution requires a speedy trial after indictment.  Rivera’s indictment happened in 1970, and, this week, a Harris County judge held that trying her at this point would violate her right to a speedy trial and required dismissal of the charges against her.

To read the comments on virtually any online account of the case, you’d think an enormous travesty had occurred, rather than the upholding of a basic Constitutional right.  They scream that there’s no limitations period for murder and that this woman is skating, scot-free, from a killing that she obviously committed.  Rarely does anyone call the state to task for failing to exercise diligence in its prosecution of her in a timely manner, while evidence is fresh and recollections could serve to either condemn or exonerate her.

Internet message boards are, admittedly, a very bad place to check the pulse of the general public, but it’s disturbing to think that there are so many people who obviously are sufficiently engaged to read and comment on a subject but, simultaneously, are so misinformed.  The decision in Rivera’s case had nothing to do with limitations but was about her Constitutional rights.  The statute of limitations—even if it existed—ceased to be an issue when the state indicted her.  At that point, her right to face her accusers and review the evidence against her in a timely fashion became the issue, and it was a point where the state failed miserably.

Whatever the evidence against Rivera might have shown, that evidence is now hopelessly stale.  There’s a reason why statutes of limitation and the right to a speedy trial exist.  Memories fade, and physical evidence gets lost or deteriorates.  But that doesn’t matter to those who have already convicted Rivera by the mere fact of her indictment 41 years ago.  (Don’t get me started on the fact that many of the same people who would convict Rivera will tell you that a civil suit filed last week is meritless.  Apparently the state’s burden is nothing as compared to a civil plaintiff’s burden, contrary to everything our justice system has ever said.)

It got me thinking about the whole modern concept of justice in Texas, which I’m convinced has much more to do with the Old Testament than with the Constitution or anything the Texas Legislature has ever passed—at least, to a subset of the public.  We, as lawyers, need to do a better job of educating the public as to what exactly justice means in our system.  It’s no longer about “an eye for an eye” or vengeance.  That notion went out the window long ago.  Of course, this mission might be helped if certain of our elected representatives didn’t proclaim the opposite by their words and deeds.

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