The Physician as Private Attorney General

Abstract

A physician whose patient suffered permanent injuries due to a prescribed theophylline-based medication successfully sued the drug manufacturer under the Washington State Consumer Protection and Product Liability Acts. He claimed damages for injury to his professional reputation and for his personal physical and emotional distress. Evidence showed that the drug company had engaged in deceptive trade practices by concealing from physicians information about the risks associated with use of theophylline. On appeal, the Washington Supreme Court affirmed the physician's claim under the Consumer Protection Act but reversed the award of damages under the Product Liability Act. The court decided that, although the Consumer Protection Act normally applies to the ultimate user of a product, physicians are appropriate parties under the act in the case of medication injuries due to the special relationship between physicians and drug manufacturers, in which manufacturers deal directly with the prescriber, not with the patient. The prescribing physician may be a "private attorney general" under the act because the manufacturer caused harm to his professional reputation. The physician, however, could not recover damages for personal distress after injuries experienced by his patient because such damages are available only under the Product Liability Act, a law that applies to parties directly injured by a product, their relatives, and certain bystanders witnessing the injury.