Today, generic prescriptions represent between 55 and 80 percent of the drugs we consume in the U.S. Choosing a generic option generally saves patients hundreds and possibly thousands of dollars annually on drugs they need for treatment of certain conditions.
What’s problematic, however, is who is held liable when those generic drugs are defective and cause injury. Answer: generally no one. That’s because most claims regarding defective drug injuries are brought under a theory of negligence called “failure to warn.” That is, the company knew the drug was dangerous in some way, but failed to convey that to doctors or consumers. Because of the way generic drugs are regulated, though, their warning labels must mirror those of the brand name producers.
But here’s where it gets troublesome: Courts have generally held generic drugmakers can’t be liable for warning labels they didn’t create. However, neither can brand name drug manufacturers be held liable for illnesses or injuries caused by generic drugs they didn’t produce or sell.