Treaters and Prescribers: To Sue or Not to Sue

February 15, 2015 Published Work
IADC Drug, Device and Biotechnology Committee Newsletter, February 2015

For the most part, healthcare providers (e.g., treating physicians and prescribers) typically are not sued in products liability litigation involving patient injuries from allegedly defective medical devices or prescription drugs. This article discusses the considerations that influence the decision whether to sue the provider, including the potential consequences on the testimony of providers at depositions or trial.

The traditional script for medical device and prescription drug cases casts providers, treaters, and prescribers as non-party witnesses. The rationale is simple – neither plaintiff nor defendant want to risk alienating critical medical witnesses because their testimony could influence case outcome. Thus, even in cases where fair criticism of the provider's conduct could be made, parties generally tend to avoid adding such witnesses to the case as a defendant. Indeed, lawyers for manufacturers and patients often commence their depositions of the treating or prescribing physician by assuring him that their client does not intend to sue him, "You are not a defendant in this case and my client, at least, does not intend to sue you."

Other considerations also motivate the parties not to include the physicians as defendants. Plaintiffs risk losing their ability to speak ex parte with physicians to educate them about the increased risks that the drug or device manufacturer allegedly "hid" from the medical community, to show them the "scientific" basis for their claims, or to review with them sales representative "call notes" allegedly revealing inappropriate, lack of fair balance promotion. In other words, plaintiffs' opportunity to "poison the well" and create an advocate for his claims, "I never would have prescribed drug x if the company had told me about these increased risks," likely would be lost by suing the physician or provider.

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