Thursday, June 22, 2017

OF LAWYERS, PHARMACEUTICALS, AND THE FIRST AMENDMENT





I am a trial lawyer and have been for 45 years. I have tried many cases, some of which I would dearly like to forget, some bearing fond memories, because of the lives I have touched and, in manyrespects, made a difference in.

When the vigor of my youth was in service and as a young member of what I thought to be a noble profession, state bar associations forbade lawyer advertising.  The playing field did not belong to leviathan firms devoting enormous amounts of resources to luring potential injury clients through their oak or glassed doors by marketing devices that have become so sophisticated a net, even clients with some modicum of intelligence could not resist their allure.  A list of large verdicts on their websites and circulars imply great success, and how much money will eventually wind up in the client’s pocket. Of course, this is a fiction and the bar does not allow ads that guarantee results, but still, the implication is there, perhaps a bit more nuanced.

This type of advertising is, according to court decisions, permissible in the United States because of the first amendment.  But clearly something is amiss.

“Mesothelioma patients have many questions,” endlessly droning on CNN and the other daytime broadcasts, “call us at 800 …...”   “If you were injured by a medical device,” call us,    “If you took drug X and suffered serious side effects, call us.”  “If you suffered poor medical care, call us….”   "Top Lawyers" magazines, supported by lawyers who seek esteem and more importantly, increased revenues pay to be listed as a "Top Lawyer"  Ambiguous requirements for listing in such publications betray their pecuniary motivations for listing a lawyer.  And if one does not have a sophisticated website, one exists only to loved ones, presumably if he makes it home for dinner.

You get the picture.   Millions of dollars lavished to corner the market, marginalizing lawyers who do not devote their resources to advertising.    Bear in mind that lawyers who prolifically advertise, are not necessarily more competent than lawyers who do not.  Very often lawyers who do not advertise are better at what they do, devoting time to their clients, not to market share, and relying on word of mouth of satisfied clients over years of building a reputation.  Of course, the consumer should make educated choices on who will represent them.  But often they are hoodwinked into believing that the bigger the ad the better the lawyer.   This notion misguided.

Many lawyers who run huge marketing operations have never seen the inside of a courtroom, operating their firms as referral mills, obtaining associate fees on cases they do not even work on.  Ok, some lawyers do perform a valuable service in a case and deserve a referral fee, but many do not.  The bar makes no distinction, the rationale being that the referring lawyer provides value to the hapless client in search of good representation.  Or he had done work on the file and needed a team to help with the complexities of the case and an army of defense lawyers against him, if he or she is a sole practitioner.


Much worse, pharmaceutical companies advertise prescription drugs on television, in print media and now in social media.  “Ask your doctor about Viagra.” A beautiful woman glides down the porch on her way to the bedroom, a come hither look on her face.  A couple sit in adjoining bathtubs, holding hands, “when the time is right, why wait?”  Cialis for daily use.   And by the way, if you see yellow or go blind or die of low blood pressure because you take some other medication that interacts badly, stop taking it immediately and call your doctor (or 911).  I am not making this up. Ask your doctor about almost every newly minted drug.  “If you have cancer and have low platelets, ask your doctor, ask your doctor, ask your doctor….”   Following a rustic scene about a poor soul staring out a window suffering from heart failure, an ethereal smile on his face, the ad promises a brighter tomorrow accompanied by “The Sun Will Come up Tomorrow,” for someone who is soon to die or get on the transplant list.  Then the ad proceeds to list a litany of hastily announced side effects (small print) that would frighten Superman.  The old dad or mom, in the nursing home, a happy smile on their face, could have their dementia slowed, but the drug might kill them or cause them to commit suicide? Or not stop the progression of the disease.  No help at all.  Who would take that medicine after hearing that?  Consumers circumventing medical advice because they have been brainwashed because of marketing?   Some of us are old enough to remember “More doctors smoke Camels than other brands, because it is better for your “T Zone.” We do not see those ads any more.

Meanwhile the courts allow this commercial speech as though it were a preciously guarded first amendment right.  The same as a right to political speech.  This type of pharmaceutical advertising is banned in the European Union and in most other countries and for good reason.  Consumers are not qualified to evaluate medical prescriptions.  If they were we could all stroll down to Walgreen’s or CVS and write our own.

Doctors go to medical school presumably to learn about which drugs to prescribe, not to be bombarded by brainwashed patients asking questions over some obviously hyped up medication, fueled by advertising dollars, often in the billions.  Clearly this has a chilling effect on what doctors actually prescribe, because even they are very often not sure and must read studies and do research, following strict protocols.   These ads are dangerous and people should be made aware by the FDA or a compulsory fund paid by the drug companies, which could run ads warning people not to believe drug advertisements or take them at face value.  But no such counter advertising exists, because the funding is not there.

Very often studies show that the new medication, costing more, is no more effective than an older medication sold over the counter, costing far less.   Health care costs rising?  Ask your pharmaceutical company.  Or ask your congressman who could draft some new laws were they not lunching with drug company lobbyists.
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4 comments:

  1. Big Data will soon mitigate both the lawyer and pharmaceutical advertising issues. Convincing a diagnosing physician to prescribe a medicine will be useless when most diagnoses and individualized treatment decisions are performed by Artificial Intelligence. Similarly, AI can will soon provide essentially every legal precedent and will estimate accurately the probability of establishing a new precedent. There will be fewer lawyers, medical diagnosticians, and drug marketers, and fewer reasons to advertise the current nonsense.

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  2. Not to worry, Melvyn. The AMA will never let that happen. Neither will the drug companies. Both of them thrive on ambiguity and, you know, clinical judgment.

    In fact, as David sort of describes, the drug companies play both ends against the middle. They suggest patients "ask their doctors..." and they tell doctors patients are benefiting from, or studies (that the drug companies concoct) show, or the doctors' colleagues are reporting... And then they send the hapless patients to the hapless doctors, and the result is the desired (by the drug companies) prescription. It's all built on nothing, and it relies on the stupidity of all concerned.

    As for the fine print, David, have you ever had to represent someone who was injured? You might have done this as a plaintiff's attorney, or you might have been a prosecutor. Either way, the trick is to present overblown images of the damage. The goal is to make the jury so sympathetic that it will be clamoring for someone to punish for such a horrible injury. And of course, in the proceeding at hand, there is only one person offered who can be punished. The jury will be more interested in exacting punishment than in being careful if the defendant is really at fault (or if the plaintiff or victim is really that injured). So it is with the fine print: the list of possible side effects. Once the audience is seduced into feeling a need for the relief, whatever it is, suggested by the ad for the medicine, no one will be listening to or reading the fine print.

    Fred

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  3. Yes, Fred, the jury system is imperfect. Unless there were a battery of AIs considering the evidence. And there is an aspect of theatre when trying a case. But what you paint is a false equivalency. Juries consider comparative negligence in an atmosphere of two competing versions of the case in the same arena. That is not true of drug ads, and that is why I proposed a multi drug company governmentally mandated counter advertisement block on media to support a more balanced view.
    And Mel's idea that AIs will replace lawyers and doctors may be eventually correct, as I had told him long ago when he dismissed liberal arts education as a benefit to undergraduates. But all homo sapiens will eventually be replaced by more efficient algorithms. Humans are simply not as efficient as machines and perhaps sentience is not necessary in decision making.

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  4. David, it happens before you see the ad. Drug studies are presented to the FDA. But 1) the rules the FDA uses are arrived at by Congress, which includes people who are paid by the drug companies, and 2) one of the rules is that any study that does not show effectiveness and safety of the drug (the competing ad you don't see) does not have to be reported to the FDA. All drug ads are in that sense phony, because they reflect a phony process. Which is why neither doctors nor patients knows anything about a drug when the drug is first released, and for some time thereafter. Doctors who prescribe new drugs are not on the cutting edge of anything. They're experimenting blindly with their patients. And patients who ask for the drug about which they were supposed to "ask [their] doctor" are not taking the newest, most effective, safest... They're guinea pigs. And best of luck to all of them.

    I will assert that in law, and perhaps especially trial law, there is never an agenda to find the truth. It is only about winning a case, as the drug business is about selling drugs. I always say that in boxing, if you kill your opponent, you win. In law, if a guilty person is acquitted, the lawyer wins his case. Both are horrible bastardizations.

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