David G. Owen

Document Type



The healthcare debate raging in this nation largely ignores the role of private law in healthcare reform. One aspect of private law occasionally included in the discussion is how medical malpractice litigation may raise healthcare costs, by increasing the cost of liability insurance for medical providers and encouraging them to practice “defensive medicine.” Yet, another aspect of private law affecting health care in America remains outside the current debate—the responsibility of makers and sellers of prescription drugs for harm caused by the dangers such drugs contain. Closing this gap in the healthcare debate, this Article proposes that the law ban design defect litigation against manufacturers of pharmaceuticals, and, further, that it abolish the “learned intermediary doctrine,” thereby imposing full-bodied duties on both manufacturers and pharmacists to warn consumers. These changes should promote the central goals of healthcare reform—maximizing consumer choice, increasing quality, and reducing costs of health care in America. While these proposals are bold, the current healthcare crisis demands bold solutions. Together, these reforms should motivate drug companies, pharmacists, and patients to partner together to reduce the harmful effects of unavoidable dangers in prescription drugs while exploiting the many benefits of pharmaceuticals for human health.