Recent Developments in Health Law

In re Tobacco Litigation (Medical Monitoring Case) , No. 00-C-6000 (W Va. Cir. Ct., Ohio County, January 4, 2002) (order filed).

“Tobacco Companies Prevail in W. Va. Medical Monitoring Suit,” Andrews Mass Tort Litigation Reporter, 8, no. 9 (December 2001): 24.

“New Trial Rejected in Tobacco Class Action,” Mealey's Litigation Report: Tobacco, 15, no. 18 (January 28, 2002): 3.

“W Va. Class Action Against Tobacco Cos. Underway Again,” Mass Tort Litigation Reporter, 8, no. 7 (October 2001): 18.

Brown & Tobacco Williamson , Blankenship II Backgrounder, August 28, 2001, at <http://www.brownandwilliamson.com/index_sub2.cfm?Page=/APPS/LitigationArchives/Index.cfm%3FID%3D635>.

“Enhanced risk” claims, which demand lump-sum damages for the chance of a future disease, are to be distinguished from medical monitoring or medical surveillance claims such as the one here, which ask for the provision of future monitoring.

“Plaintiffs' Witness Admits Medical Groups Don't Endorse Medical Monitoring,” Tobacco Industry Litigation Reporter, 16, no. 23 (October 5, 2001): 7.

Brown & Tobacco Williamson , supra note 7.

“Tobacco Companies Prevail in W. Va. Medical Monitoring Suit,” Toxic Chemicals Litigation Reporter, 19, no. 16 (November 30, 2001): 13.

Read G.C. , “Medical Monitoring: The New Gold Rush,” Defense Counsel Journal, 68, no. 2 (April 2001): 141–42.

Brown & Tobacco Williamson , supra note 7.

Wire Reports, “Jury Turns Down Suit Against Tobacco Firms,” South Florida Sun-Sentinel, November 15, 2001.

“Tobacco Companies Prevail in W. Va. Medical Monitoring Suit,” supra note 12.

Blaner K.L. , “State Jury Demonstrates Deep Flaws in ‘Medical Monitoring,’” Legal Backgrounder, 16, no. 55 (December 14, 2001) (quoting “A Victory for Common Sense over W. Va. ‘Grievance Industry,’” Charleston Daily Mail, November 15, 2001, at A4.)

Daynard R.A. and Gottlieb M. , “Tobacco Class Actions Fire Up,” Trial, 37 (November 2001): 18–25.

“New Trial Rejected in Tobacco Class Action,” supra note 4.

Bower v. Westinghouse Electric Corp. , 522 S.E.2d 424, 430 (W. Va. 1999).

Daynard and Gottlieb , supra note 18, at 25.

Blaner , supra note 17, at 2.

Id. at 3.

“In Sickness and in Health,” The Washington Post, January 15, 2001, at A20.

Read , supra note 13, at 141.

Bower , 522 S.E.2d at 429–30.

Blaner , supra note 17.

Read , supra note 13, at 141.

Id. (quoting Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 442 (1997)).

DiPaola T.A. and Roberts G.W. , “Back to the Future: Recognition of ‘Medical Monitoring’ Claims in Florida,” The Florida Bar Journal, 74 (2000): 28–40, at 33.

“Plaintiffs' Witness Admits Medical Groups Don't Endorse Medical Monitoring,” supra note 10.

DiPaola and Roberts , supra note 33, at 33–34.

Id. at 34 (quoting Bower, 522 S.E.2d at 434).

Happel v. Wal-Mart Stores, Inc. , 766 N.E.2d 1118 (Ill. 2002).

Id. at 1120 n.1 (defining “contraindication” as “an indication, symptom, or condition that makes inadvisable a particular treatment or procedure”) (quoting Gove P.B. , eds., Webster's Third New International Dictionary (Springfield, Illinois: Merriam-Webster, 1993): at 495). See also id. at 1125 (“a contraindication is a serious limitation on a drug's use, necessarily implying grave consequences if it is ignored. As one court has noted, a contraindication refers to ‘a circumstance under which the drug must never be given.’”) (quoting Hand v. Krakowski, 453 N.Y.S.2d 121, 123 (N.Y. App. Div. 1982)).

Id. at 1129.

Id. at 1130.

Id. at 1127.

Noah L. , “The Learned Intermediary Doctrine: A Sensible Duty Limitation or an Anachronism?,” Kansas Journal of Law and Public Policy, 10 (Fall 2000): 98–101, at 98–99. The following purposes support the learned intermediary doctrine: Preventing court intrusion on the doctor-patient relationship, which undermines the patient's trust in the physician; recognizing the superior position of physicians as information distributors; solving the problem that drug manufacturers lack effective means to communicate warnings directly to patients; and ensuring patient comprehension of complexities.

Matter M.R. , “Emerging DTC Advertising of Prescription Drugs and the Learned Intermediary Doctrine,” Defense Counsel Journal, 69 (January 2002): 79–87. Other rationales for the learned intermediary doctrine include: “(1) the physician's training and experience; (2) the physician's evaluation of the patient's needs and wishes; (3) the assumption that the physician is better situated than the manufacturer to convey the appropriate and applicable warnings to the ultimate user; (4) the fact that warnings to consumers might interfere with the traditional physician-patient relationship; and (5) that it is difficult, if not impossible, to convey appropriate warnings to the consumer in view of the highly technical nature of the information and the variations in the needs of individual patient characteristics.” Id. at 81.

Happel , 766 N.E.2d at 1126.

Id. at 1130.

Id. at 1122.

Id. at 1120.

Toradol is a “nonsterodial antiinflammatory drug manufactured by Syntex Laboratories, Inc.” Zaremski M.J. and Rothschild I.S. , Pharmacy Bears Some Liability for Prescription Danger, Amednews.com, at <http://www.ama-assn.org/sci-pubs/amnews/pick_01/prca0212.htm> (February 12, 2001); Happel, 766 N.E.2d, at 1121.

Happel , 766 N.E.2d, at 1120.

Id. at 1121.

Id. (noting Wal-Mart policy required its pharmacists to ask customers about drug allergies before filling a prescription order to avoid dispensing drugs to which customers were allergic).

Id. at 1122.

Id. at 1122 n.2 (“‘anaphylactic’ is derived from the term ‘anaphylaxis,’ which is defined as ‘hypersensitivity (as to foreign proteins or drugs) manifested in man in acute serum sickness and in severe or fatal reactions to second or later administrations of certain drugs’”) (quoting Gove P.B. , eds., Webster's Third New International Dictionary (Springfield, Illinois: Merriam-Webster, 1993): at 78).

Happel v. Wal-Mart , 737 N.E.2d 650 (Ill. App. Ct. 2000).

Happel , 766 N.E.2d at 1120.

Id. at 1129.

Id. at 1120.

Id. at 1123–24.

Id. at 1124.

Id. at 1125.

Id. at 1127 (quoting Eldridge v. Eli Lilly & Co., 485 N.E.2d 551, 553 (Ill. App. Ct. 1985). The Eldridge court held that a pharmacist does not have a duty to warn physicians or question dosage amount when quantity of prescription seems high).

Happel , 766 N.E.2d at 1126.

See, e.g., Jones v. Irvin , 602 F. Supp. 399 (D. Ill. 1985); Fakhouri v. Taylor, 618 N.E.2d 518 (Ill. App. Ct. 1993), app. den. 622 N.E. 2d 1204 (1993); Eldridge v. Eli Lilly & Co., 485 N.E.2d 551 (Ill. App. Ct. 1985).

Happel , 766 N.E.2d at 1130.

Id. at 1128.

Id. (quoting Happel, 737 N.E.2d at 656).

Id. at 1124.

Matter , supra note 8, at 81 (the list of recognized exceptions to the learned intermediary doctrine includes: “(1) mass vaccinations, (2) oral contraceptives, (3) contraceptive devices and (4) over-promoted drugs”).

See Morgan v. Wal-Mart Stores , 30 S.W.3d 455, 465 (Tex. Ct. App. 2000) (a pharmacist dispensing a drug in accordance with a valid prescription need not warn of adverse side-effects absent unusual circumstances)

Hornish M.L. , “Just What the Doctor Ordered — Or Was It? Missouri Pharmacists' Duty of Care in the 21st Century,” Missouri Law Review, 65 (Fall 2000): 1075–1100, at 1076.

Id. at 1092 (noting most courts follow the traditional view; however, this view is changing as scholars adopt a new perspective regarding pharmacists' role in health care).

Noah , supra note 7, at 99 (critics argue that the learned intermediary doctrine “reflects an anachronistic and excessively paternalistic model of the doctor-patient relationship. It fails to take account of the recent changes in the delivery of health care services. In particular, some critics argue that the emergence of managed care organizations has constrained physician autonomy so substantially that prescribing decisions may no longer reflect an informed medical judgment”). See also Hornish , supra note 42, at 1079–80 (“Two approaches toward this duty have evolved in the law: the traditional approach and the modern approach. The traditional approach imposes a duty only ‘to accurately fill valid prescriptions as directed by the treating physician.’ Under the traditional view, a pharmacist is a ‘technician,’ whose duty is simply to accurately dispense the drugs themselves. The modern approach, however, more fully recognizes pharmacists' knowledge and training.”).

‘ Hornish , supra note 42, at 1091–92.

Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc. , 808 So. 2d 243 (Fla. Dist. Ct. App. January 23, 2002).

Fla. Admin. Code Ann. r. § 64B8–9.009 (2001).

See Fla. Admin. Code Ann. r. § 64B8–9.009(4)(b) (stating that to perform a level II surgery, physician must have either staff privileges with a hospital or a transfer agreement with a hospital); Fla. Admin. Code Ann. r. § 64B8–9.009(6)(b) (stating that physician must have staff privileges at a hospital that performs the same type of procedure the doctor performs in an office setting).

See Fla. Admin. Code Ann. r. § 64B8–9.009(6)(b)(1)(a) (stating that before a surgeon can perform level III office surgery, the surgeon must be able to prove that he or she is qualified to engage in such a procedure through board certification, staff privileges with a hospital, or comparable experience and that surgeon has knowledge of the principles of anesthesia. A licensed M.D. or D.O. anesthesiologist must be present if the surgeon does not have knowledge of the principles of anesthesia.)

Florida Board of Medicine , 808 So. 2d at 249–50.

Florida Academy of Cosmetic Surgery v. Department of Health, Board of Medicine , No. 00-1058RX, 2000 Fla. Div. Adm. Hear. LEXIS 5307 (September 7, 2000).

Fla. Acad. of Cosmetic Surgery v. Dep't of Health, Bd. of Med. , No. 00-0951RP 2000 Fla. Div. Adm. Hear. LEXIS 5295 (November 16, 2000).

Florida Board of Medicine , 808 So. 2d at 251.

Fla. Stat. § 120.52(8) (1999).

Fla. Stat. § 458.331(v) (1999) (“The board may establish by rule standards of practice and standards of care for particular practice settings, including but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, [and] transfer agreements….”).

Florida Board of Medicine , 808 So. 2d at 254.

Fla. Stat. § 120.52(8).

Florida Board of Medicine, 808 So. 2d at 255 (citing Board of Clinical Laboratory Personnel v. Florida Ass'n of Blood Banks, 721 So. 2d 317, 318 (Fla. Dist. Ct. App. 1998)).

Id. at 255–56.

Id. at 256.

Fla. Stat. § 120.52(8)(f).

Florida Board of Medicine , 808 So. 2d at 257.

Id. at 258.

Florida Board of Medicine , 808 So. 2d at 260.

Id. at 261.

Douglas D. , “Appeals Court Reverses ALJ's Ruling on Hospital Privilege in Office Surgeries,” BNA's Health Care Daily Report, 7, no. 25 (February 6, 2002).