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A Bad Idea Whose Time Has Passed

By James M. Beck and Mark Herrmann

About a month ago, we posted about a really bad idea - legislative abolition of the learned intermediary rule - that had surfaced in California. We've just been informed by a regular reader from the state (you know who you are) that this bill was defeated yesterday. Here's what we've been told (the text reads like something an industry-side lobbyist would write):

AB 2690 (Krekorian), which sought to legislatively repeal the learned intermediary defense failed to pass the Assembly last night. The trial attorneys worked the bill on the Assembly Floor until the end but could not garner the necessary votes for passage.

The bill was lobbied as an anti-marketing bill by the trial attorneys but our arguments showed the bill for what it really was: an attempt by the trial attorneys to directly sue pharmaceutical companies. Because of California?s MICRA (Medical Injury Compensation Reform Act) which limits non-economic damages to $250K for medical malpractice suits, many legislators viewed the learned intermediary legislation as a way for attorneys to duck around MICRA and therefore make more money off of the health care system.

Hopefully this failure will help prevent the trial attorneys from introducing this legislation in other states.

Full post as published by Drug and Device Law on May 30, 2008 (boomark / email).