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What is the learned intermediary doctrine, and how your implanting surgeon's knowledge of the risks might result in summary judgment against you on a failure to warn claim

   Learned intermediary is a defense doctrine. This doctrine states that a manufacturer of a product has fulfilled his duty of care when he provides all of the necessary information to a "learned intermediary" who then interacts with the consumer of a product.

   The three basic rationales articulated in support of the rule are:

• the prescribing physician is in a superior position to give the warning and can provide an independent medical decision as to whether use of the drug is appropriate for treatment of a particular patient;

• manufacturers lack effective means to communicate directly with each patient; and,

• imposing a duty to warn upon the manufacturer would unduly interfere with the physician-patient relationship.

   The learned intermediary doctrine is not available as a defense in West Virginia. Continuing challenges to the learned intermediary doctrine abound. For example, a 1999 New Jersey decision adopted an exception to the learned intermediary doctrine for cases in which the manufacturer engaged in direct-to-consumer advertising.

   What started as a simple doctrine is no longer so simple and cannot be taken for granted - especially in the age of direct-to-consumer marketing. Although the majority of state and federal court opinions continue to enforce the learned intermediary doctrine, continuing challenges and a growing number of exceptions impact the manner by which the courts will consider the doctrine in the future.

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