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Injured By A Defective Drug? New Case Reminds Plaintiffs Of Important Legal Hurdle!

Injured-by-a-dangerous-drug-or-defective-medical-device-200x300On December 22, the 11th Circuit issued a new opinion dealing with the Learned Intermediary Doctrine under Georgia law. Many states, including Alabama, follow the same or similar versions of this doctrine. The Learned Intermediary Doctrine is a key issue in personal injury cases involving dangerous or defective prescription medications. If you suffered a serious injury from a bad drug, this legal doctrine may decide whether or not you can recover damages for your injuries.

What Is The LEARNED INTERMEDIARY DOCTRINE? How The Doctrine Impacts Bad Medication Cases.

So, what is the learned intermediary doctrine? Let’s start with the new 11th Circuit case, Hubbard v. Bayer Healthcare Pharmaceuticals. The case involved a Georgia lady who suffered a catastrophic stroke while taking the prescription contraceptive Beyaz. Later, she sued Bayer claiming the company failed to warn adequately of the stroke risk.

This is the basis of most bad drug claims — The manufacturer failed to warn adequately of the risk. In recent years, our firm has handled numerous defective prescription cases in Alabama. Did the drug maker properly warn of the health risk? Did the drug maker conceal or fail to warn of some risk? The warnings are essential to patient choice.

Although the learned intermediary doctrine may vary somewhat from state to state, the statement by the 11th Circuit of the doctrine in Georgia gives you a pretty good idea —

The doctrine imposes on prescription drug manufacturers a duty to adequately warn physicians, rather than patients, of the risks their products pose. But a plaintiff claiming a manufacturer’s warning was inadequate bears the burden of establishing that an improved warning would have caused her doctor not to prescribe her the drug in question.

Drug makers have a duty to warn doctors, not patients. That’s key. In a typical warning case (or fraud case), the representations that you receive are key. What you rely upon in making your decision is essential. With most warning cases, it’s the warnings or words to you. Not so with bad drug cases. They are different. In these warning cases, it’s the warnings to doctors. Companies legally must warn doctors. Drug makers can typically rely on the doctors to counsel patients of the issues.

Would additional warnings have changed the doctor’s prescription decisions? Would additional warnings have caused the prescribing doctor to do anything differently? In this new 11th Circuit case, the prescribing doctor testified he already knew the additional risks at issue and additional warnings would not have changed his decision to prescribe the medication. Without some evidence the doctor would have acted or counseled his patient differently, the injured stroke victim does not have a claim. That’s why the learned intermediary doctrine is so important in these cases.

If you suffered an injury due to a dangerous drug, I’m not suggesting you should study or understand completely doctrines like the learned intermediary doctrine. But, you absolutely should hire a personal injury lawyer who understands the doctrine and how it operates with your local prescribing physician. Otherwise, you add to the risk you will lose your claim.

How Should The Doctrine Impact Your Choice Of Attorney? Why You Should Hire A Local Attorney With Experience Handling Serious Personal Injury Cases.

How should the doctrine impact your choice of injury attorney? We’ve all seen the ads. It seems like every other commercial on television wants you to call if injured by a defective drug. Now, the ads also appear on Facebook, Instagram, and other social media sites. You cannot escape them.

In recent weeks, I’ve even received spam cell phone calls asking if I suffer cancer from Zantac. Really! I’m representing several Huntsville area consumers injured by Zantac / Ranitidine. Unlike some anonymous call center, I know personally each of my clients. I know their histories, their records and their illnesses. I still believe lawyers should give personal, dedicated service.

How do most people find a drug or device injury attorney? Too often, people contact one of the many advertisers on television or social media. Most of the time, these ads are run by nationwide mass tort volume firms. These firms want to sign a huge volume of cases and then settle them. You are simply a number to them. You are not getting personal service. You most likely will not get the best settlement. Many people who hire these firms never even speak with an actual lawyer!

If you hire one of these large advertising firms and participate in some mass settlement, you may not be concerned with this doctrine. But, if you want to build your case for maximum value or your case is picked for trial, it’s a different story. You need a lawyer who possesses two things — An understanding of the learned intermediary doctrine in your state AND experience working with local physicians.

I’ve taken testimony from many prescribing physicians in these cases. While some doctors are familiar with giving deposition testimony, others are not. Many prescribing doctors are worried about the issues, worried about their decisions and unsure of the right course of action. That’s why you really need an attorney with experience in the local medical community.

This new 11th Circuit decision should stand as a caution to injury victims. The message is clear — These cases can be easily won or lost on a few short answers from the doctor. With the best lawyer, you can still lose these cases with the wrong response from the prescribing doctor. But, a good lawyer is much more likely to obtain favorable doctor responses. Why increase your chance of losing by hiring a lawyer unfamiliar with the rules or how to deal with local doctors? You need to prepare from the beginning by choosing the right attorney to best handle your case.

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From its office in Huntsville, the Blackwell Law Firm represents people in serious personal injury cases across Alabama. We are happy to answer your questions. Consultations are always free and confidential.

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