From 'Hellhole' to 'Point of Light;' Texas drops from tort reform report

Marilyn Tennissen Dec. 14, 2012, 3:22pm

Once considered a “Judicial Hellhole,” the state of Texas is now listed among the “Points of Light” in the latest report from the American Tort Reform Association. 

The group recognized the adoption by the Texas Supreme Court of the “learned intermediary” doctrine in its annual report released Dec. 13.

In June, the Texas high court adopted the defense doctrine that states that a manufacturer of a product has fulfilled his duty of care when he provides all of the necessary information to a “learned intermediary,” who then interacts directly with the consumer of the product.

The doctrine is primarily applied to pharmaceutical companies and medical device makers in defense of civil torts.

In other words, a prescription drug maker has a duty to accurately educate physicians on the potential risks and benefits of its drugs, but it is then up to the doctor, the “learned intermediary,” to discuss the information with his patient according to the patient’s condition and medical history.

In most states, the courts have accepted the doctrine as a liability shield for pharmaceutical companies.

Since 2002, the American Tort Reform Foundation’s Judicial Hellholes program has published an annual report of what is sees as various abuses within the civil justice system and jurisdictions where courts are radically out of balance.

For years, Jefferson County and other parts of Texas ranked among the worst courts, but since the state implemented major tort reforms in 2003, it has moved from the Hellhole list, to the Watch List, to finally being off the list altogether.

But, Texas remained the largest state not to have a clear law on the application of the learned intermediary rule, according to the report.

The state Supreme Court adopted the doctrine, in part, “Because patients can obtain prescription drugs only through their prescribing physician or another authorized intermediary and because the ‘learned intermediary’ is best suited to weigh the patient’s individual needs in conjunction with the risks and benefits of the prescription drug, we are in agreement with the overwhelming majority of other courts that have considered the learned intermediary doctrine and hold that, within the physician-patient relationship, the learned intermediary doctrine applies and generally limits the drug manufacturer’s duty to warn to the prescribing physician.”

 The report noted that by adopting the learned intermediary doctrine, the Supreme Court reversed a “poorly-reasoned” appellate court ruling that would have made Texas, “which has made great strides to improve its litigation climate, an outlier in product liability law.”

“West Virginia, a perennial Judicial Hellhole, remains the only state that wholly refuses to apply the learned intermediary doctrine,” according to the report.

The state of California made the No. 1 spot as the state with the worst judicial climate on this year’s report, followed by West Virginia; Madison County, Ill.; New York City and Albany, N.Y.; and Baltimore, Md.

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