An interesting double-standard

by Ted Frank on July 27, 2008

Justinian Lane crows: Pfizer fined by an Australian trade group! Indeed it was; drug reps went off the reservation of what they were supposed to talk about without telling managers, and exaggerated the health effects of a competing drugs for personal profit. (Note that there was no need for a regulator or plaintiffs’ attorneys to get involved; this was entirely an Australian free-market self-policing arrangement through contractual agreements that fined Pfizer. Lane forgets to mention that part.)

Lane thinks this is a just result worth noting. So let us consider that trial lawyers do the same thing every day: lie about or exaggerate health effects of drugs for profit (just Google the name of any prescription drug to get a lawyer’s ad)–and without the intermediating effects of doctors to assess the claims and correctly inform patients, so it is clearly worse. But the lawyers do so with impunity, with no consequences for the adverse health effects on patients. (E.g., POL June 2007; POL Feb. 12.) There’s no private cause of action; and the trial bar and its professional organizations lionize such tactics, rather than punish them. All we can do is criticize plaintiffs’ lawyers for putting profits before people.

{ 9 comments }

1 Justinian Lane 07.27.08 at 1:08 pm

I’m going to have to disagree with you about trial lawyer conduct being worse. These reps were lying to doctors directly. They abused their positions to influence doctors to write prescriptions for their own medicines. That’s a bit different than a lawyer putting up a web site to look for clients. Many lawyer web sites even state not to stop taking medication without first consulting with a doctor.

I have no double-standard with this. Lawyers aren’t telling patients “stop taking this drug and hire us now.” They’re telling patients “if you were injured and were taking this drug, hire us now.” If some patients as a result of such an ad stop taking their medication without consulting a doctor, that’s unfortunate. But no more so than if the same patient stops taking a drug because of a news story about the drug.

I know you often complain of “alarmist” news reports about prescription drugs, which you suggest are created for ratings. Do you have any suggestions on how to curb either these news reports or lawyer web sites without infringing on First Amendment rights?

2 Ted Frank 07.27.08 at 2:24 pm

Justinian’s factual predicates are, as they often are, fictional. The top three Google hits for Avandia lawyers have none of the disclaimers that Lane claims are common. Neither do the top hits for Zyprexa lawyers. After which I stopped looking: Lane’s simply making stuff up again, which he really needs to learn not to do if he wishes to have any credibility.

Studies show that doctors don’t rely on what reps tell them, and use the reps as a source for further inquiry in more reputable sources. What the Australian reps did was wrong (and against Pfizer policy), but there is no evidence anyone was actually misled or harmed. In contrast, what lawyers do is official policy and there is substantial evidence of adverse health effects.

It’s interesting that Lane raises the first amendment (which I agree protects the attorneys’ and journalists’ conduct); he’s perfectly willing to abridge the first amendment when it comes to manufacturer speech. And unlike attorneys, manufacturers only make money in the long run if their products promote health.

The solution is simple: stop giving attorneys the financial incentive to lie about drugs. There’s no evidence that private lawsuits do anything to promote public health, and substantial evidence that they are counterproductive.

3 Griffin3 07.27.08 at 2:43 pm

So, the reps were lying to the doctors, who are ‘knowledgeable in the field’ — isn’t that the legal standard that’s applicable? While the lawyers misrepresent drug (and other) aide effects directly to the people using them, and that’s supposed to be perfectly fine?

Here’s a great idea to curb lawyers’ web sites with this behavior: Make it actionable to publish false information, in the hopes of influencing people to stop taking medications they may need, with the goal gaining a financial benefit for yourself.

Gee, you wouldn’t even need new laws; you could just enforce the existing libel, malpractice and fraud statutes. And make it reasonable to take on lawyers who make such outright fraudulent statements.

How about this: any interested doctor can sue a purveyor of factually incorrect medical information on a website, can seek ludicrous ‘pain and suffering’ amounts for the entire class of similarly offended doctors, have virtual immunity to any reprisal from the law firm involved, and if they lost, they could just walk away … to laugh at the amount of time and effort the legal firm spent defending itself?

4 Justinian Lane 07.27.08 at 3:50 pm

Many attorneys do include the warning I mentioned. See William Berg, for example. He has the warning at the very top of his Zyprexa page and again in the text. And I’ve seen others, but I don’t want to link-spam Overlawyered to prove an irrelevant point: Regardless of which attorneys do or do not advise patients to consult with doctors before changing their medicine, attorneys reap no financial benefit if patients just stop taking their meds. The benefit only comes to them when injured patients hire them.

I’m not going to argue with you about whether anyone was harmed by the sales rep lies, because you acknowledge that the conduct was inappropriate.

Can I ask what evidence you rely upon to claim that I want to “abridge the first amendment when it comes to manufacturer speech”?

5 Ted Frank 07.27.08 at 7:59 pm

Berg is one attorney, not “many.” And Berg isn’t in the top forty search results for Zyprexa attorneys: the only reason you’re aware of him is because he was quoted in the AP story on the subject.

It’s not true that attorneys reap no benefits from their advertisements.

Lane has repeatedly praised the prosecution of off-label marketing, and called for increased regulation of it, without regard to whether the off-label claims are true. For more on the first amendment implications of this, see the AEI event on the subject.

6 Justinian Lane 07.27.08 at 8:52 pm

I didn’t say attorneys reap no benefits from their advertisements. I said they reap no benefits from convincing people to stop taking medications, which is true. Attorneys are actually better off if individuals keep taking their medications, as that increases the likelihood of the person having an adverse event and thus being a potential client.

When I’m an attorney, if I decide to do mass torts, rest assured I’ll have that disclaimer all over my site.

Do you believe pharmaceuticals should be liable in failure to warn lawsuits if they promote off-label and thus not FDA-approved uses of a drug?

7 Ted Frank 07.27.08 at 8:59 pm

I didn’t say attorneys reap no benefits from their advertisements. I said they reap no benefits from convincing people to stop taking medications, which is true

Except it isn’t true: advertisements usually don’t include disclaimers because many lawyers benefit from controlling the flow of information to their potential client without regard for the health consequences. You’re trying to change the subject: the issue is that attorneys benefit from advertisements that, without consequence, are known to mislead potential clients into doing things that are bad for their health.

Do you believe pharmaceuticals should be liable in failure to warn lawsuits if they promote off-label and thus not FDA-approved uses of a drug?

Note that Justinian has changed the subject again, since we were talking about his willingness to impose first-amendment restrictions on manufacturers. Stop trolling, Justinian. And maybe you can actually read what I’ve written on the subject before asking questions I’ve already answered; if you want to talk about why the learned intermediary doctrine should protect pharmaceutical companies from failure-to-warn liability, do it in the the many posts I’ve made about the learned intermediary doctrine instead of trying to derail this comment thread by posing interrogatories when you still haven’t honestly addressed your willingness to abridge manufacturers’ first-amendment rights to discuss off-label uses of their products at the same time you are defending the first-amendment right of lawyers to do what Pfizer was punished for in Australia.

8 gitarcarver 07.28.08 at 2:04 am

attorneys reap no financial benefit if patients just stop taking their meds. The benefit only comes to them when injured patients hire them.

Assume for a moment that 100 people are taking a drug of which 1 has an adverse effect. The 100 people see an ad for the horrible effects the drug has on people (not knowing that there is only a small percentage of people affected.)

Seventy five of them stop taking the drug for no other reason than the ad they saw. The lawyer now stands up in front of a jury and says “one in twenty five people have an adverse effect from this heinous drug that was callously rushed to market by the money hungry, greedy drug companies.”

Do you think that the difference between 1% and 4 % is not significant? Do you think that the same lawyer will not argue that the 75 people that stopped taking the drug suffered emotional trauma from the drug and have to endure a lifetime of never knowing whether adverse effects of the drug will strike them.

All the while an unscrupulious lawyer will say “look how I am keeping the public informed of the horrors and evils of the evil drug corporations,” who have done nothing but make a legal drug, that was perscribed correctly, taken correctly and the effects are within the studies and approval by the FDA.

There is money there for the lawyer to “encourage” or “scare” people into not taking or stop taking a certain drug.

9 Ted Frank 07.28.08 at 7:19 am

If a drug adversely affects only 1 in 100 people, a reduction in the number of people taking the drug shouldn’t affect the rate at which the drug has adverse effects.

But because the doctors already considered the adverse side effects when prescribing the drug, and thus concluded that the benefits of the drug exceeded the risk of the side effect, what will happen is that the people who are persuaded by the lawyer’s scare tactics to stop taking the drug will be worse off. No pharmaceutical company would be allowed to make an advertisement that said what an attorney’s advertisement said — not even William Berg’s advertisements, not all of which have Lane’s disclaimers.

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