NEJM Issues Strong Editorial Against Preemption

The Supreme Court next fall will hear a landmark case that could rob consumers of the right to sue drug manufacturers in state courts when the Food and Drug Administrations fails to protect them from unsafe drugs. Drug manufacturers are claiming in Wyeth v. Levine that federal regulation preempts state product liability laws, even though the Food, Drug and Cosmetic Act -- unlike the Medical Devices act, which the court has already ruled preempts state laws -- contains no such language.

A few weeks ago, I was critical of the New England Journal of Medicine for failing to take a strong stand against federal preemption. Well, that blog post is no longer operative. In Thursday's edition, the top editors of NEJM authored a strong editorial warning "Why Doctors Should Worry About Preemption."

In stripping patients of their right to seek redress through due process of law, preemption of common-law tort actions is not only unjust but will also result in the reduced safety of drugs and medical devices for the American people. Preemption will undermine the confidence that doctors and patients have in the safety of drugs and devices. If injured patients are unable to seek legal redress from manufacturers of defective products, they may instead turn elsewhere.

Only that last sentence, which hints that injured patients might turn to suing their doctors, rang false. I'm sure that a Supreme Court willing to rewrite laws to give drug manufacturers a "but the FDA said it was safe" defense, will be more than happy to legislate from the bench giving doctors something similar to ward off malpractice suits.

No, it's the patients who will be the real losers if the high court invalidates state efforts to protect their citizens from unsafe prescription drugs. But it is nice to know that the prescribers -- or at least the leading editorial voices who speak on their behalf -- are on their side.