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

Abstract

The ability to obtain prescription medications over the Internet without a proper prescription has inflamed regulators nationwide. Federal and state officials alike have proposed a host of new laws and regulations that attempt to limit this burgeoning phenomenon. Yet premature regulation of Internet prescribing could prevent consumers from realizing the tremendous benefits it might one day provide to the American health care delivery system. In this Note, Chester Chuang argues that subjecting Internet prescribing to a traditional failure-to-warn liability framework, rather than to additional regulations, adequately will ensure patient safety while allowing for the necessary innovations that will legitimize the distribution of prescription medications over the Internet. He suggests that pharmaceutical manufacturers can satisfy their duty to warn by contractually obligating websites that dispense prescription medications to implement comprehensive patient information systems. Chuang concludes that the proper application of this framework to these patient information systems will make certain that pharmaceutical manufacturers strike the proper balance between patients' health and safety concerns and the possibilities of Internet prescribing.

Keywords: Internet, on-line, prescription, failure-to-warn, medications, drugs, pharmaceutical, doctor, pharmacist, learned intermediary

JEL Classification: I0, I1, I18, K1, K2, K13, K32