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Tracy v. Merrell Dow Pharmaceuticals3/27/1991
H. Brown, J.
In this civil action alleging medical malpractice and products liability, we consider two issues: (1) whether a jury instruction on the learned intermediary doctrine was appropriate with respect to an investigational drug, and (2) whether the trial court abused its discretion with respect to alleged discovery rule violations. For the reasons which follow we reverse the court of appeals and reinstate the jury verdict.
In Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 322, 4 O.O. 3d 466, 469, 364 N.E. 2d 267, 271, this court adopted the Restatement of the Law 2d, Torts (1965), Section 402A. Comment k to Section 402A contemplates that a drug manufacturer will not be held strictly liable for injuries caused by an unavoidably dangerous drug, such as prescription drugs, if the warning is adequate.
The duty to warn depends, in the case law that has developed, upon the drug manufacturer's relationship to the user. Where a prescription drug has been prescribed for a patient by the patient's physician, the manufacturer has been held to discharge its duty to warn if the manufacturer adequately warns the physician. Reyes v. Wyeth Laboratories (C.A.5, 1974), 498 F. 2d 1264, 1276; Basko v. Sterling Drugs, Inc. (C.A.2, 1969), 416 F. 2d 417, 426; Williams v. Lederle Laboratories (S.D. Ohio 1984), 591 F. Supp. 381, 388; McKee v. Moore (Okla. 1982), 648 P. 2d 21, 24; Terhune v. A.H. Robins Co. (1978), 90 Wash. 2d 9, 13, 577 P. 2d 975, 977.
The rationale behind these holdings is that the physician stands between the manufacturer and the patient as a learned intermediary. The physician has the duty to know the patient's condition as well as the qualities and characteristics of the drugs or products to be prescribed for the patient's use. The physician is in the best position, therefore, to balance the needs of patients against the risks and benefits of a particular drug or therapy, and then to supervise its use. McKee, supra; Terhune, supra, at 978.
This shift in the duty to warn has been called the learned intermediary doctrine. In Ohio, we adopted the learned intermediary doctrine in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 21 O.O. 3d 121, 423 N.E. 2d 831. The learned intermediary doctrine achieves a proper allocation of responsibility since not all patients are alike and it is the physician who best knows the patient.
The learned intermediary doctrinsdoes not relieve the manufacturer of liability to the ultimate user for an inadequate or misleading warning; it only provides that the warning reaches the ultimate user through the learned intermediary. Alm v. Aluminum Co. of America (Tex. 1986), 717 S.W. 2d 588, 592; McEwen v. Ortho Pharmaceutical Corp. (1974), 270 Ore. 375, 386-387, 528 P. 2d 522, 529. If the product is properly labeled with the appropriate warnings and instructions to fully inform the physician (a learned intermediary) of the risks involved and the procedures for use, the manufacturer may reasonably assume that the physician will exercise his informed judgment in the patient's best interests. McKee, supra; Terhune, supra.
The issue presented to us in this case turns upon the relationship between Merrell Dow, Dr. Epstein and the plaintiff's decedent, Tracy. Was there a physician-patient relationship between Dr. Epstein and Tracy? Merrell Dow claims there was and that its duty to warn was satisfied (relying on the learned intermediary doctrine) by giving an adequate warning to Dr. Epstein. The plaintiffs-appellees claim that Dr. Epstein was acting as an agent of Merrell Dow rather than as a physician to Tracy, that the learne
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