By: Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations
What would you do if you saw a TV ad about a lawsuit against a drug company over a medication prescribed by your physician that you were currently taking? In 2017, the U.S. Chamber Institute for Legal Reform (ILR) asked that question of 1,335 adults—500 of whom were currently taking or had taken one of 12 prescription drugs frequently targeted by personal injury lawyers. Nearly half of the survey respondents said they would definitely or probably stop taking the drug immediately after seeing the ad. When shown an actual TV lawsuit ad about a drug they or a household member had taken, more than half said they would reduce the dosage to below the prescribed amount.
Problems with litigation advertising are not new. The ILR study reinforces the findings of an earlier survey commissioned in 2007 by the National Council for Community Behavioral Healthcare. Its poll of 400 psychiatrists found that 97 percent had patients who stopped taking their medications or reduced their dosages. More than half of the respondents believed that their patients had reacted to litigation advertising. Another ILR poll found that, in 2003, one-third of surveyed physicians had prescribed drugs to patients who then refused to take them because of litigation.
The malignant effects of attorney advertising are significant enough that the American Medical Association (AMA) House of Delegates adopted a policy during its 2016 annual meeting: The AMA would advocate to require warnings in attorney ads, cautioning patients to not stop taking their medicines without discussing it first with their healthcare providers.
Predictably, attorneys have a different view. When interviewed about the AMA’s new policy, Philadelphia plaintiffs’ lawyer Max Kennerly told Legal Newsline (an ILR publication) that the warnings are unnecessary: “Attorney advertisements are one of the primary ways that the public learns about new dangers of drugs and medical devices.” Although Mr. Kennerly lists medical malpractice and drug class actions among his areas of special expertise, he also stated, “I don’t know of a single instance of a patient stopping a medication and being hurt because they saw an attorney’s advertisement.”
Contrary to Mr. Kennerly’s statement, ILR’s study notes that MedWatch, the U.S. Food and Drug Administration’s Safety Information and Adverse Event Reporting Program, received reports that 31 patients quit taking prescribed blood thinners after seeing litigation advertising and then suffered injuries that included stroke, pulmonary embolism, paralysis, and death. These incidents occurred between September 2014 and December 2015. Another 61 reports through December 2016 described patients who had stopped taking blood thinners in response to attorney ads and suffered injuries that included cardiac arrest, stroke, deep vein thrombosis, transient ischemic attack, and death.
In an informational hearing on the subject in June 2017, the U.S. House of Representatives Judiciary Committee heard from practicing physicians whose patients had been negatively affected by attorney advertising—including one moving example of a patient who died because she stopped taking her prescribed anticoagulant after receiving a pamphlet in the mail from a plaintiffs’ attorney targeting the medication. The committee also heard from a law professor who explained that much of the drug litigation advertising is funded by so-called “aggregators”—law firms that do not try cases but merely recruit plaintiffs. The aggregators then pass the plaintiffs to other law firms, often in jurisdictions far from the patients and their healthcare providers, where courts and juries are sympathetic to class action plaintiffs. The committee’s final witness was a lawyer who counsels other lawyers on their ethical responsibilities. This witness felt that regulation of attorney advertising on drug litigation is unwise and unnecessary.
In Texas, the Senate passed SB 1189, Deceptive Advertising Practices. The bill precludes legal advertising from being presented as a medical alert, health alert, consumer alert, or public service announcement. It also prevents ads from using federal or state government agency logos to suggest an affiliation and prohibit ads from falsely claiming that a product has been recalled or is under investigation by the FDA. The legislation mandates specific warnings and disclosures—including a warning that patients should consult a physician before stopping a prescribed medication. The governor is expected to sign this bill. Similarly, the California State Assembly passed AB 3217 with bipartisan support, only to see it die in the California State Senate under pressure from the trial attorneys’ opposition. Although it will be difficult to enact this kind of important legislation, it is essential that the healthcare community join us in supporting these measures when they are introduced at the state level.
Lawsuit advertising continues to grow. The American Tort Reform Association issues periodic updates on trial lawyer ad spending. While not all of the ads are related to drug litigation, the expenditures are staggering. In the third quarter of 2018, trial lawyers spent $226 million to air ads on local broadcast networks, up $50 million from the second quarter of 2018. That figure includes 23,000 ads in New York City alone, at a cost of nearly $9 million in three months. Those figures do not include local cable, national cable, or national broadcast networks. The ILR estimates that trial lawyer advertising in 2017 amounted to $1 billion nationwide.
Physician advocates continue to grapple with trial lawyer advertising—including concerns that misleading advertising may affect the objectivity of potential jurors—as evidence mounts that deceptive ads hinder a physician’s ability to provide effective treatment. Providers may wish to add the pernicious effects of attorney advertising to the factors influencing when and how to assist patients in following their prescribed therapies.
We will continue to monitor legislative developments and advocate on behalf of our members and the medical profession. Look for updates in future issues of The Doctor’s Advocate.
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American Tort Reform Association. White papers and reports on advertising spending. www.atra.org/resources/white-papers-and-reports/.
Examining Ethical Responsibilities Regarding Attorney Advertising: Hearing Before the House Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice. June 23, 2017. https://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=106162.
Karmasek J. AMA: lawyer ads alarming prescription drug users, jeopardizing health care. Legal Newsline. July 26, 2016. https://legalnewsline.com/stories/510964259-law-courts-ama-lawyer-ads-alarming-prescription-drug-users-jeopardizing-health-care.
U.S. Chamber Institute for Legal Reform. Bad for your health: lawsuit advertising implications and solutions. www.instituteforlegalreform.com/uploads/sites/1/TLA_Advertising-Paper-WEB.pdf. Published October 24, 2017.
Reprinted with permission. ©2019 The Doctors Company (www.thedoctors.com). This article originally appeared in The Doctor’s Advocate, second quarter 2019.