Market Share Liability and the Health Care Professional

Abstract

Attorneys practicing in the area of drug-products liability occasionally encounter a case in which there is no question that the drug taken was defective or that misrepresentations were made concerning the drug, but it is impossible to identify the particular drug company that manufactured the product taken by the patient. This problem undoubtedly will be encountered more frequently in the years to come in light of the almost uniform repeal of antisubstitution laws, resulting in generic products being dispensed far more frequently now than in the past. A pharmacist will be unlikely to remember, years or even months later, which company’s product was used to fill a particular prescription. To resolve this problem, pharmacists in the future may have a duty to create and retain detailed records concerning which manufacturer’s products were used to fill specific prescriptions. Such records, if properly maintained, would eliminate problems encountered in many cases in which defective generic drugs were dispensed.