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Physician’s Liability When Using New or Experimental Drugs

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Abstract

THE recent publicity given adverse and unanticipated physical reactions of patients who have received new or experimental drugs, and the new statutory regulations, have caused some physicians to question the legal propriety of “clinical trials.” While many courts have spoken around this issue, few have faced it directly. This whole field of law is rather complex and may not be condensed into a simple unqualified statement, but a few recent cases do somewhat clarify the issue.

Before determining the extent of the physician’s liability for harmful reactions resulting from administration of drugs, one must review the statutory and case law of product liability as it applies to drugs and medicines. In broad terms, liability for harmful reactions produced by a drug can rest on four bases:

  1. The negligence of the druggist or the manufacturer in the compounding or in the labeling of a drug.

  2. The breach of any warranty,* expressed or implied, by the manufacturer that the drug or medicine is merchantable and fit for the purpose for which it is intended.

  3. The breach of an implied warranty by the druggist that the drug is wholesome and that the prescription was compounded accurately.

  4. Any fraud or deceit of the manufacturer or of the druggist who sells the drug or medicine which caused the injury.

The Druggist

When the druggist fills a prescription and then sells the compounded medicine to the patient, this constitutes both the exercise of his professional ability and the sale of a product.


 

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