This just in, courtesy of Bruce Hamlin of Martin Bischoff, an intermediate appellate court in Washington State has rejected an attempt by plaintiffs to expand the duty to warn under the learned intermediary rule from the current “adequately warn a prescribing physician” standard to “warn every health care provider.” Falsberg v. Glaxosmithkline, PLC, No. 68264-4-1, slip op. (Wash. App. Sept. 9, 2013) (unpublished).  Why such a ruling is “unpublished,” we can’t speculate.  

The court rejected the proposition that “if a warning to the prescribing physician is good, then a warning to all health care providers everywhere is better.”  Falsbergslip op. at 10.  Here’s the relevant holding:

[S]trong policy considerations support Washington’s focus upon the prescribing physician in applying the learned intermediary doctrine.  Our Supreme Court has emphasized that in examining the nature of the relationship between a drug manufacturer, a prescribing physician and a patient, the prescribing physician plays a unique and important role.

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Here, [the prescriber] was both the prescribing physician and the treating physician when symptoms first appeared.  [He] was aware of the manufacturer's warnings and, when he prescribed the drug, he advised [plaintiff] to discontinue use if he developed [those symptoms].  As to the emergency room physicians . . ., the record before us is minimal, and it appears to be speculative whether a more simplified . . . warning would have been of any significance.

Id. slip op. at 9-10 (quotations from Terhune v. A.H. Robins Co., 577 P.2d 975 (Wash. 1978), and Restatement §402A, comment k omitted).

As this discussion suggests, the warning in question (quoted in full at slip op. at 6-7) was rock solid and detailed – so much so that the plaintiff actually argued that it should have been “simplified.” Falsberg is thus also of note because of the holding that the warning was adequate as a matter of law.  Id. at 8.  Finally, Falsberg is the latest addition to our collection of cases,see here and here, for the proposition that there’s no duty to tell a trained physician how to practice medicine:

[Plaintiff] contends that the label should offer diagnostic advice because of the known risk of misdiagnosis.  But [plaintiff] does not present a compelling argument. . . .  Neither the Restatement nor [Washington precedent] support the proposition that a label must go beyond the warnings given to include diagnostic tips, or otherwise instruct a physician on how to practice medicine.

Falsbergslip op. at 8.

We’ve been blogging since 2006.  This is our first post ever about a legal development from Washington State.  We’re thankful that it’s a victory for our side.