Study Set Content:
Restatement (Second) of Torts, Negligent Misrepresentation Involving Risk of Physical Harm , which states
“One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information[…] Such negligence may consist of failure to exercise reasonable care in ascertaining accuracy of the information, or in the manner in which it is communicated.”
Drug information may be faulty for one or more reasons
it may be dated;
it may simply be wrong;
it may be incomplete and, therefore, misleading;
or none may have been provided because of an incomplete search or incompetent searcher.
may occur because references are updated differently
Inappropriate quality information
are updated differently some monthly, others weekly.
electronic references
Checking a DI response in several references is the
standard of practice
failure to consult the correct source
Parameter negligence
consulting the correct source, but failure to locate the correct answer[s]
Omission negligence
Inappropriate quality information may be the result of
ghostwriting or publication marketing.
occurs when a pharmaceutical company develops the concept for an article to counteract criticism of a drug or embellish its benefits, hires a professional writing company to draft the article, retains a health professional to sign off as the author, and finds a publisher to unwittingly publish the work.
Ghostwriting
An unskilled searcher or one with insufficient searching knowledge may not find correct or complete information, which can lead to the
wrong answer.
The fault can lie anywhere in the
information dissemination chain, publication, collection, storage, retrieval, dissemination, or utilization.
Errors are often encountered in DI databases; DI pharmacists are constantly finding errors and reporting the errors to the
vendor or publisher
where a nursing student was injured after consulting and relying on a nursing textbook that recommended hydrogen peroxide enemas for the treatment of constipation.
Jones v. J.B. Lippincott Co
a misprint in a medical textbook resulted in the injection of 25% rather than 2.5% sodium chloride solution, injuring a patient. Again, the court rejected strict liability for the publisher on the basis that any medically educated person should have noticed the misprint
German case,
the plaintiff sued for an alleged misstatement in a booklet distributed by a Planned Parenthood organization that resulted in a “wrongful conception.” The court found that “a publisher cannot assume liability for all misstatements, said or unsaid, to a potentially unlimited public for a potentially unlimited period.”
Roman v. City of New York
two people required liver transplants after collecting and eating poisonous wild mushrooms. They had relied on an Encyclopedia of Wild Mushrooms in choosing to eat the mushrooms that caused this severe harm. The court refused to hold the publisher liable and found that a publisher has no duty to investigate the accuracy of the information it publishes.
Winter v. G.R Putnam’s Sons
the plaintiff claimed lost sales because of the publication of erroneous information in the Merck Index. The court considered the duty of a publisher to a reader to publish accurate information in a compendium. The court noted a publisher’s right to publish without fear of liability is guaranteed by the First Amendment and societal interest. It further held that even if it had a duty to publish with care, the plaintiff could not claim it suffered damages because of reliance on this information.
Delmuth Development Corp. v. Merck & Co
were sued for defamation by a device manufacturer where the publication compared and opined on the performance of devices for compounding sterile products. The court granted the defendants motion to dismiss stating lack of actual malice (a necessary element of defamation). In this ruling, the court protected the First Amendment rights of scientists to report product comparisons and the rights of publishers regarding the peer review process and publication of such comparisons
pharmacy journal publisher and article author
the plaintiff became addicted to diazepam (Valium ®) and sued the publisher of the Physician’s Desk Reference (The claim was based on the absence of warnings in the PDR regarding the addictive nature of the drug. The court dismissed the case against the publisher.
Libertelli v. Hoffman La Roche, Inc. & Medical Economics Co.
Under a long line of cases, a publisher is_____ for matters of public interest if it has no knowledge of its falsity
not liable
