“Hey, kids, guess what we’re doing today! We’re going to spend three hours in the car driving to Proctorville and back to pick up Mom’s back-pain medicine and Granny’s mood stabilizers. We’ll make a day of it. It’ll be lots of fun!”
Folks in White Sulphur Springs, Shepherdstown, Morgantown, Wheeling, and Williamson won’t ever have such a long drive. They can always zip over to Virginia, Maryland, Pennsylvania, Ohio or Kentucky to get the medicines they need.
But people in Charleston and Clarksburg and Webster Springs had better be concerned. For them, it’s a hike to the border.
Why would anyone have to leave the state to purchase prescriptions?
Because a peculiarity of our state law, as interpreted by a recent federal court decision, creates an incentive for citizens from other states to file lawsuits in West Virginia to pursue complaints against drug companies for alleged injuries that occurred elsewhere.
The simplest solution for drug companies likely to be targeted is to remove themselves from West Virginia. In fact, that’s the advice offered by attorneys Jim Beck and Mark Herrmann in a recent post on their widely respected “Drug and Device Law” blog.
“A federal trial court has held that West Virginia public policy forbids applying the learned intermediary doctrine even to patients treated outside of West Virginia,” Beck and Herrmann explain. “West Virginia stands basically alone among the states in rejecting the learned intermediary doctrine. So drug companies don’t want to get sued in West Virginia.”
According to the “learned intermediary” doctrine, precription drug companies fulfill their obligation to consumers by providing warnings to prescribing physicians. In West Virginia, however, drug companies are expected to communicate directly to consumers – which makes it easier for the disgruntled and payday lawyers to challenge the adequacy of those warnings.
As a result of the ruling in Woodcock v. Mylan, people who don’t live here can circumvent the learned intermediary doctrine in their own states and file lawsuits in West Virginia instead.
The drug companies may soon be heading for the border. And so may you if this wrong-headed decision is not rectified.