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Montana became the first state to ban TikTok this month.  You no doubt have seen the press and have read the spirited discussion condemning foreign spies on the one hand and championing First Amendment rights on the other.  Litigation has already commenced.  But, while all that was developing, you may have overlooked that Montana

Personalized medicine is the wave of the future.  Whether treating disease or prescribing medical devices (or both), medical practitioners are taking individualized patient characteristics into account more and more as they treat their patients.  Cancer therapy can now be targeted at the genetic level, and some medical devices can now be created to match patient

A federal judge in DC has reminded us that the government does not operate in secret, at least not always and usually not completely in connection with prescription drug approval.  The case is Vanda Pharmaceuticals, Inc. v. FDA, No. 22-cv-938, 2023 U.S. Dist. LEXIS 51853 (D.D.C. Mar. 27, 2023), and the plaintiff was a

The federal government cannot compel pharmaceutical manufacturers to sell prescription drugs at a discount to unlimited numbers of pharmacies.  That is the takeaway from the Third Circuit’s recent opinion in Sanofi Aventis U.S. LLC v. United States Department of Health and Human Services, No. 21-3167, 2023 WL 1098017 (3d. Cir. Jan. 30, 2023) (to

We have not written much on data privacy lately, but it remains a hot topic and one that changes rapidly as governments around the world (including numerous U.S. states) enact new data privacy laws.  One thing that has not changed is the standard for proving a data privacy breach under California’s medical confidentiality statutes.  For

The idea that software can be a product (as in “product liability”) is not new, but gray areas remain with regard to when that should be and how courts should handle it.  Take for example a case that we wrote on a couple of years ago, in which a district judge in Virginia granted summary judgment for the manufacturer of an electronic health records (“EHR”) system.  A patient suffered severe complications after a doctor entered post-op instructions into the hospital’s EHR computer system, but the hospital implemented the orders at the wrong time.  Whose fault was that?  We don’t know, but the district court ruled that, even though the patient’s experts identified software changes that would have made the system safer, they did not identify a standard of care that the EHR system failed to meet. 

Well, a couple of weeks ago, the Fourth Circuit reversed and held that the experts had very well identified a standard of care and further that there was evidence sufficient to support a failure-to-warn claim.  The case is Lowe v. Cerner Corp., No. 20-2270, 2022 WL 17269066 (4th Cir. Nov. 29, 2022), and the facts are worth repeating.  Following surgery, the patient’s surgeon entered orders for “continuous pulse oximetry” into the EHR software developed by the defendant and deployed by the hospital.  However, although the surgeon intended for pulse oximetry—i.e., checking blood oxygen—to be continuous, she chose “once” and “daily” from the system’s dropdown menus, which defaulted to 10:00 each day.  The system correctly displayed that time on the order confirmation screen, but several orders were entered that day, and the surgeon did not scroll down to review them all.  She clicked through some version of “accept all.”  Unfortunately, checking blood oxygen at 10:00 was too late for this poor patient, who suffered severe and permanent disability.  Id. at *2-*3. Continue Reading Yes Virginia, Software Can Be A Product