by: Gregory L. Laker , Attorney
Pharmaceuticals and medical devices have a huge impact on the health and quality of life for millions of people. Companies spend billions of dollars in research and development seeking to create the next blockbuster drug or groundbreaking medical device that will allow patients to live fuller, happier lives. A problem happens when these
companies choose profits ahead of people by allowing dangerous drugs and medical devices to be used in treatments.
Consumers often view the FDA as the first line of defense in protecting patients. The agency not only oversees the approval of drugs and devices that enter the market, it also monitors the safety of these products through adverse event reports and additional post-market studies.
Physicians receive marketing information regarding pharmaceuticals and medical devices directly from the manufacturers. Sales representatives from these manufacturers provide physicians with information such as clinical studies, methods of use, and other data to persuade them to use their products.
So what happens when a person becomes seriously injured by a dangerous medical device or pharmaceutical prescribed by their doctor? Who is responsible for the injuries or death of the patient? Typically, the injured patient files a lawsuit against the manufacturer of the product to seek compensation for their damages. In defending these lawsuits, these manufacturers have resorted to suing the very doctor whom they had just encouraged to use their product, in an attempt to spread blame, and to reduce their own Comparative Fault.
A recent case in the United States District Court of Oregon has allowed a medical device manufacturer to sue a physician in a third-party claim. In one case, the manufacturer of the On-Q PainBuster medical device, filed a third-party claim against the surgeon for using the I Flow Pain Pump, claiming that the surgeon was a responsible party due to her own medical negligence, for using the I Flow product.
The Court held that Oregon law authorizes a non-patient third party to assert claims against a physician based on that physician’s negligent care of a patient. What’s interesting about this case is that similar claims by I Flow in other states have not been upheld.
One concern is that the Oregon decision may encourage similar claims by manufacturers against other physicians. By filing a third-party claim for comparative fault, the manufacturer is in essence seeking to spread the blame for the injury to the physician and get them to share in the expense of settlement.
If more states follow in Oregon’s footsteps, doctors who rely on pharmaceutical and medical device manufacturers to honestly educate them about the use of specific products may be putting themselves at risk for legal action if a product is found to be defective. If a physician cannot rely on the manufacturer of the product to provide them with accurate information, patients may suffer. This is yet another example of the harm that comes from companies who put profits ahead of people.