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Jeremy Overmyer Discusses Indiana’s “Right to Try” Law and What It Means for Health Care Providers


Indiana recently passed a “Right to Try” law that grants terminally ill patients access to unapproved medications when there are no other treatment options available. However, according to the Indiana Lawyer, attorneys who practice in the health care space say that the law, while well-intended, is no cure-all.

Interestingly, the pharmaceutical industry was neutral on the legislation throughout the lawmaking process. In a recent interview with the publication, BGD attorney Jeremy Overmyer said that’s likely because the law doesn’t compel companies to provide experimental drugs, nor does it impose additional obligations on them.

“The most significant point to note is that while the Indiana Right to Try law may adequately protect a provider from liability under state law, federal law may still impose a liability risk,” he said. “The law helps to clarify the specific protection afforded to providers under state law actions, but it does not clarify risks under federal law. The greatest risks here are in the uncertainties.”

As with many new health care laws, Overmyer explains that there are arguments taking place for and against Right to Try laws in the health care industry.

“Proponents of the law argue that these laws allow access to experimental drugs for terminally ill patients who would otherwise not have the opportunity, and the law gives more control to patients in their end-of-life decisions,” he said. “Opponents argue that the law may not benefit the terminally ill and could jeopardize the viability and integrity of clinical trials.”

During the interview, Overmyer noted that the FDA has approved 99.5 percent of compassionate-use requests since 2010, and that he and other attorneys agreed that the agency has made the drug approval process more accessible and timely.

Because of the uncertainty of conflict with federal law, Overmyer conclude that it seems likely that counsel will continue to advise providers to go through the FDA process to obtain experimental drugs for qualified patients.

Read “Weighing the ‘Right to Try’ law” on the Indiana Lawyer website.

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