Is There A Doctor in the House? Using Failure-to-Warn Liability to Enhance the Safety of Online Prescribing

This Note argues that manufacturers can satisfy the duty to warn that is owed to consumers who purchase prescription medications from Internet prescribing sites by contractually obligating the websites to implement comprehensive patient information systems. Analyzing these systems under a traditional failure-to-warn liability framework will allow reputable sites to mature into reliable sources of prescription medications for consumers, while cutting off the supply of drugs to fraudulent sites without resorting to increased government regulation. Ideally, this framework wiIl force manufacturers to weigh patients\u27 health and safety with the commercial and practical advantages of Internet prescribing. Part I of this Note chronicles the rise of Internet prescribing and the increased access to prescription medications it offers the everyday consumer. Part II outlines the learned intermediary doctrine and discusses why it is inapplicable to current online prescribing practices. This Part also describes the unique difficulties pharmaceutical manufacturers face when trying to implement a direct warning system, but concludes by arguing that these difficulties should not dissuade manufacturers from exploring online prescribing. Part III presents a solution for conveying adequate patient warnings directly to the patient, taking into account the unique challenges that Internet prescribing presents. This Part proposes that the application of a traditional failure-to-warn analysis will enable manufacturers to use the Internet to create comprehensive patient information systems that satisfy manufacturers\u27 duty to warn in an online prescribing situation. There are two ways this might be accomplished: first, by enhancing the online physician-patient relationship so that it falls within the confines of the learned intermediary doctrine, or second, by implementing Individualized Patient Reports (IPRs) without increasing the physician\u27s role in the transaction, thus spurning the protection of the learned intermediary doctrine completely. Finally, this Part proposes that manufacturers, and not the government, must require web sites to implement either of these systems in order to ensure the success of these patient safety measures