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Tort Immunity for Big Pharmaceutical Companies in Texas?

This guest post is courtesy of the consumer organization Texas Watch.

The Texas Supreme Court has given Big Pharma a license to defraud Texas patients.

In its decision in Centocor vs. Hamilton, the Supreme Court ruled that big drug companies have no responsibility to directly warn patients about the dangers of powerful pharmaceuticals. With doctors and nursing homes already shielded from accountability, this decision completes the medical industry trifecta of immunity by adding drug makers to the list. The decision is not surprisingly being hailed by pharmaceutical conglomerates, medical industry lobbyists, and other special interests.

Texas Lawyer described the Court’s actions this way:

The pharmaceutical industry scored a big win on June 7 in the Texas Supreme Court. Not only did the court knock out a $3.6 million verdict against a Johnson & Johnson subsidiary that makes the drug Remicade, but it set a new, tougher standard in the state for bringing cases alleging failure-to-warn and fraud.

Broadly worded, the Court’s opinion, which ignores the decisions of a local jury and a lower appellate court, states that “a prescription drug manufacturer fulfills its duty to warn end users of its product’s risks by providing adequate warnings to the intermediaries who prescribe the drug and, once fulfilled, it has no further duty to warn the end users directly.”

In other words, so long as drug companies send doctors the right paperwork (or at least “adequate” paperwork), they don’t have to worry about whether patients are actually informed. Under the Court’s broad ruling, this immunity extends even when drug companies directly advertise to consumers.

And, what does this ruling mean in light of Texas’ draconian restrictions on medical malpractice lawsuits? In a nutshell, Big Pharma gets to hide behind doctors’ white coats. The Texas Supreme Court just shifted Big Pharma’s liability to prescribing physicians who are already shielded from accountability. So, now patients have to prove two cases at once. First, that the drug maker gave the doctor bad information. Then, that the doctor made a decision based on that information that harmed them. With this double layer of protection for Pharma coupled with the already exisiting medical malpractice shield, the idea that patients have legal rights in Texas is a ruse.

For years, the medical industry has been telling patients to be more informed and more active participants in the decision-making about their health care. Patients are expected to educate themselves about their treatment options in order to make informed choices. But, how are patients supposed to fulfill this obligation when the drug companies don’t have even have to tell them about the risks and side effects of their possible treatments?

Not surprisingly, this decision is being hailed by special interest outfits across the country who are backed by the drug industry and whose agenda is driven by a desire to restrict (eliminate?) legal accountability for their corporate backers. One crowed that the Court’s opinion was “a major step.”

Major step, indeed. This decision is a giant leap that will undoubtedly result in worse care, less informed patients, and less legal accountability when patients are inevitably harmed.

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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