What happens when a drug company fails to warn of the risk of the product and the prescribing doctor later learns of the risk and continues to prescribe the drug?
The 2nd Circuit took this issue in McElroy v. Eli Lilly. In this case, the plaintiff’s psychiatrist continued prescribing of Zyprexa – a drug that treats bipolar disorder and schizophrenia – even after being told of Zyprexa’s diabetes risk. In fact, the doctor even upped the dosage of the drug after March 1, 2004 (the date Eli Lilly sent a “Dear Doctor” letter to the medical community warning of the diabetes risks associated with the Zyprexa).
The 2nd Circuit found that the plaintiff”s “continued prescription of Zyprexa for more than two years after the medical community knew or should have known about the drug’s risks indicates that his prescribing decision was not affected by those risks.”
I get the court’s point, but the analysis might be a little broad. What if the doctors kept prescribing the drug because they figured that any harm done to the plaintiff had already been done? Maybe they would testify that they never would have given the patient Zyprexa but continued on the drug because it was working and they feared to change his prescription.
These folks on the 2nd Circuit are smarter than I am, which makes me wonder why the analysis, in this case, was so simplistic.