Preview Newsletter
ILR Survey Coverage
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KHN Morning Briefing
Jul 6, 2017 | Kaiser Health News
Brief discussion of the Judiciary hearing in the Kaiser Health News Morning Briefing, which links to a paywalled article from CQ Roll Call, accessible here. Relevant portion included below. -
Curb Attorney TV Ads, Drug Makers and Doctors Urge Congress
Jun 26, 2017 | Bloomberg BNA
By Samson Habte
Members of the U.S. House's judiciary committee heard competing testimony June 23 about whether Congress should step in to regulate what one witness described as “1-800-BAD-DRUG” attorney advertisements. -
Prescription Pulse: User fee deadlines slip
Jun 26, 2017 | Politico
By Sarah Karlin-Smith, Brent Griffiths and David Pittman
Brief mention of the Judiciary Subcommittee hearing in Politico's Prescription Pulse. Relevant portion included below. -
Lawyer Ads Scare People into Stop Taking Their Medicine
Jun 26, 2017 | U.S. Chamber of Commerce
By Sean Hackbarth
You might have seen them at the wee hours on television. In between episodes of Friends or The Big Bang Theory reruns are ads declaring a “Medical Alert!” Flashing lights and bright red letters warn that if you’re taking some medication you could be in imminent danger. -
Attorney Drug Ads Draw Criticism, But Little Action After House Hearing
Jun 23, 2017 | Law.com
By Cogan Schneier
Democratic lawmakers appeared reluctant Friday to further investigate drug ads by plaintiffs lawyers, though some Republicans, doctors and lawyers say the ads create serious health and safety problems. -
OP-ED: Warning: Lawsuit ads may be harmful to the health of Americans
Jun 23, 2017 | The Hill
By Lisa A. Rickard
Two years ago, a 45-year-old man, who suffered from a deep vein thrombosis, or blood clot, was watching television. He saw a commercial from a lawyer advertising for lawsuits over the blood thinning medication Xarelto, which the man’s doctor had prescribed to help dissolve the clot. -
House Debates Whether Atty 'Bad Drug' Ads Harm Patients
Jun 23, 2017 | Law360
By Dani Kass
Attorney advertisements touting the dangerous side effects of drugs should be better regulated because they can cause patients harm, some members of a U.S. House of Representatives Judiciary Committee subcommittee said in a contentious hearing Friday morning. -
Are Drug Ads Endangering Patients' Lives? Chamber Lawyer Says Yes
Jun 23, 2017 | Corporate Counsel
By Sue Reisinger
Are ads from plaintiffs lawyers about prescription drug lawsuits endangering lives by frightening patients into stopping their medications? A U.S. House subcommittee hearing scheduled for Friday on that issue has drawn lawyers from both sides into the fray. -
Franks subcommittee to examine 'ethical responsibilities' of plaintiff lawyer Rx ads
Jun 22, 2017 | Arizona Business Daily
A U.S. House subcommittee on which Arizona Congressman Trent Franks (R-8) serves will hold a hearing tomorrow regarding the impact and oversight of plaintiff lawyer television ads that pitch lawsuits against makers of prescription drugs. -
Plaintiff lawyer ads may scare some Americans from taking their prescriptions, finds new survey
Jun 22, 2017 | American Pharmacy News
Do television ads by plaintiffs' lawyer firms hawking lawsuits over prescription drugs cause patients to cease taking their prescribed prescriptions? -
House Judiciary Committee to hold hearing on mass torts advertising
Jun 22, 2017 | Reuters (Blog)
By Alison Frankel
The U.S. House Judiciary Committee is intensifying its scrutiny of advertising by personal injury lawyers looking for clients injured by pharmaceuticals. On Friday, the committee will hear about the consequences of legal advertising from four witnesses – two doctors who say in written statements that they’ve seen patients die because lawyers’ ads scared them off of their medications; a legal ethics expert who argues there’s no need for additional regulation of legal advertising; and a scholar of legal advertising who said in a fascinating and fact-packed overview that no widescale study has established a link between lawyers’ ads and patient decisions. -
RX Drug Lawsuit Ads Could Scare Millions Out of Taking Their Medications
Jun 22, 2017 | U.S. Chamber Institute for Legal Reform
By (Press Release)
One in four Americans taking certain prescribed medicines say they would stop taking them immediately—without consulting their doctor—after seeing ads promoting lawsuits against the drugs’ manufacturers, according to a new national survey released today by the U.S. Chamber Institute for Legal Reform (ILR).
Traditional Media Coverage
Full Text of Stories Below
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Jul 6, 2017 | Kaiser Health News
CQ Roll Call: Health Industry Pushes Scrutiny Of Lawsuit Advertisements
Doctors and the pharmaceutical industry want more scrutiny of advertisements for lawsuits relating to prescription drugs, and are getting backing from the powerful U.S. Chamber of Commerce and the chairman of the House Judiciary Committee. The American Medical Association says that advertisements for lawsuits about adverse side effects of drugs can deter patients from using treatments that doctors have instructed them to take. The AMA, which is the largest doctors’ group in the United States, voted last year to require that lawsuit ads carry warnings to consult a physician before making changes to their medications. (Siddons, 7/6) -
Curb Attorney TV Ads, Drug Makers and Doctors Urge Congress
Jun 26, 2017 | Bloomberg BNA
By Samson Habte
Members of the U.S. House's judiciary committee heard competing testimony June 23 about whether Congress should step in to regulate what one witness described as “1-800-BAD-DRUG” attorney advertisements.
Proponents of congressional regulation say that these ads, in which plaintiffs’ attorneys solicit clients for drug product liability suits, have scared some patients into discontinuing vital medication regimens without consulting their doctors. But opponents say existing state advertising rules are sufficient to protect the public, and any congressional regulation could infringe upon state sovereignty and attorneys’ free speech rights.
The testimony was the latest development in an emerging fight that pits a segment of the plaintiffs’ bar against big drug makers and medical device manufacturers—and, more unusually, the American Bar Association against the American Medical Association.
The witnesses and legislators at the June 23 hearing focused most of their attention on one category of advertisements: television commercials soliciting clients for lawsuits against the makers and marketers of the blood thinner Xarelto.
Critics say the ads targeting Xarelto are misleading and dangerous. The drug's manufacturer, Janssen Pharmaceutical, commissioned a 2016 study that said two people died and 28 others suffered serious medical problems after they saw the lawsuit ads and stopped taking Xarelto.
Pharmaceutical companies—and the AMA, which supports federal restrictions lawyer advertising—were cheered when the judiciary committee's chairman, Rep. Bob Goodlatte (R-Va.), sent letters asking every state bar association to adopt self-imposed limits on drug ads. Those ads, Goodlatte said, should include disclaimers warning patients not to stop taking medications without consulting their doctors.
“Based on the responses we have received so far from state bars, it appears that there are few if any reported complaints of lawyer misconduct regarding these commercials,” Goodlatte said at June 23 hearing. “The lack of complaints, however, does not diminish the fact that severe injury and death resulting from these commercials are being reported to the Food and Drug Administration.”
But Democrats on the subcommittee, and a former bar official and legal ethics expert who testified before the panel, questioned the necessity of federal action and expressed concerns about the constitutionality of any congressional efforts to restrict the content of the advertisements.
Dems vs. GOP, J.D.'s vs. M.D.'s
“[T]oday's hearing presents a new topic for us, but it's old wine in a new bottle,” said Rep. Steve Cohen (D-Tenn.) “It's another attack on trial lawyers. And the beneficiaries of this attack on the plaintiffs bar are well-heeled corporate interests.”
Cohen also cited two potential constitutional restraints on congressional intervention on this issue.
Federalism principles were one restraint. “Regulation of lawyers has traditionally fallen within the authority of state supreme courts or state bars,” Cohen noted, and Congress would be “intruding on state sovereignty” if it tried to guide the work of state bar authorities or “attempt to intimidate them and to do some of [Congress's] bidding.”
The First Amendment was another potential obstacle, Cohen said.
Lawyer advertising is protected commercial speech that under existing First Amendment doctrine may only be prohibited if it is “false or misleading,” Cohen said. There has been “little evidence” that the complained about ads are false or misleading, he said.
Lynda C. Shely, an ethics attorney and former bar regulator who practices in Scottsdale, Ariz., echoed Cohen's concerns.
Shely said she"never once heard a consumer complaining” about attorney advertisements during her 24 years in the profession.
“Actually, I've not seen any doctors submit advertisements to the state bar complaining, and you all know that everybody has standing to complain about a lawyer ad—it does not have to be someone who's been harmed,” said Shely.
“I ask that this committee simply submit any ads that you are concerned about to the appropriate state regulator so they can take appropriate action,” Shely said. “Because the current system does work in regulating against false and misleading advertising.”
Some witnesses took issue with the assertion that the drug ads, particularly those targeting Xarelto, were not false or misleading.
One of those witnesses was Dr. Shawn Fleming, a vascular surgeon who said he treated a patient who died after a frightening lawyer ad convinced him to stop taking the medication.
Dividing Doctor and Patient
“[T]he tone and content of these advertisements imply a qualitative judgment about these medications that's just not true,” said Fleming. “When you say call 1-800-BAD-DRUG, that clearly implies it's a bad drug, which runs counter to current medical evidence and also to the FDA's recommendations.”
“These advertisements imply a false choice, where patients can either decide to not take this medicine and be just fine, or take the medicine and potentially spontaneously bleed to death,” Fleming said. That is misleading because patients who don't take the medicine “are more likely to die,” Fleming said, and “that is not ever mentioned in these commercials.”
Fleming said drug lawsuit ads also drive a wedge between doctors who prescribe the drugs and patients who see advertisements that imply the drugs are seriously dangerous.
“[I]f they believe that I have prescribed them a drug that may kill them, then six months later when I need to give them a different drug, they're resistant,” Fleming said. “When I tell them I need to put them to sleep and do surgery on them, they're resistant, because they no longer trust me.”
‘Dystopian PSA’
The witnesses at the committee hearing did include one member of the legal profession who largely sided with the doctors on the panel.
“[W]e cannot stick our heads in the sand and act as though these ads are the same as an ad for soap or for candy bars,” said Elizabeth Tippett, a University of Oregon law professor who has studied drug injury advertising.
Tippett said her research revealed that the drug injury advertising has exploded. Approximately 53,500 drug ads were aired on national cable and broadcast networks in a one year period spanning July 2015 to July 2016, Tippett said, at a cost of about $114 million. “Many of these advertisements were transparent about the fact that they were from a lawyer, and that they were trying to find people for a legal claim,” Tippett said. “But some of them were not.” “Some of the ads looked essentially li ke a dystopian public service announcement, and had language like ‘consumer alert,’ and ‘medical alert,’ and ‘warning,’” Tippett told the committee. “And sometimes from these ads it was difficult to tell if they were sponsored by a lawyer.”
Impartial Rating System?
Linda A. Klein, the president of the ABA, issued a lukewarm response to Goodlatte's proposal after receiving his letter.
In a March 23 reply letter, Klein raised three issues: the potential benefits that the much-criticized ads hold for the “many people [who] are injured or killed each year from taking prescription drugs”; the First Amendment restraints on limiting lawyer advertising; and the fact that “false and misleading ads are already regulated.”
In her committee testimony, Tippett acknowledged that even if state bars were willing to do more to regulate these ads, they might run into some difficulty “because the entities that sponsor the advertising are different from the lawyers who litigate these claims.”
“And part of the solution may be to have an impartial rating system for advertisers, so the lawyers who are litigating these claims can vote with their dollars and choose their referrals from advertisers that are the most ethical,” Tippett said.
“As attorneys we have the privilege and duty of self-regulation, and I don't think we have taken that duty seriously enough,” Tippett said. “We need to invest more time and resources to understanding and addressing this problem.”
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Prescription Pulse: User fee deadlines slip
Jun 26, 2017 | Politico
By Sarah Karlin-Smith, Brent Griffiths and David Pittman
HOUSE MULLS TOUGHER ENFORCEMENT OF LAWYERS’ DRUG ADS — House Republicans and Democrats sparred over whether tougher regulations are needed for attorney advertisements that highlight some of the worst side effects of major drugs, while ginning up interest in large lawsuits. During a House Judiciary Subcommittee hearing on Friday, Republicans argued that the ads are literally scaring viewers to death by causing patients to stop taking their drugs. They described the ads as alarming, lacking complete medical data and often failing to include warnings that patients should consult their physician before making changes to their medication regimen. Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee, said the ads create a “barrier between doctors and patients and endanger patient lives.”
… Democrats argue that the GOP is trying to push unconstitutional restrictions of trial lawyers’ First Amendment rights by usurping the regulatory power of state and local bar associations. Rep. Steve Cohen (D-Tenn.) argued that Republicans were missing the biggest threat of all: drug companies. “That’s the real threat to consumers is drug advertising, getting people to want drugs and go to their doctors and say, like Huey Lewis and the News, ‘I need a new drug,’" Cohen said.
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Lawyer Ads Scare People into Stop Taking Their Medicine
Jun 26, 2017 | U.S. Chamber of Commerce
By Sean Hackbarth
You might have seen them at the wee hours on television. In between episodes of Friends or The Big Bang Theory reruns are ads declaring a “Medical Alert!” Flashing lights and bright red letters warn that if you’re taking some medication you could be in imminent danger.
Such tactics used by tort lawyers to drum up business for class action lawsuits are scaring people to death, Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR) warns:
Two years ago, a 45-year-old man, who suffered from a deep vein thrombosis, or blood clot, was watching television. He saw a commercial from a lawyer advertising for lawsuits over the blood thinning medication Xarelto, which the man’s doctor had prescribed to help dissolve the clot.
The patient apparently found the claims in the ad so frightening he stopped taking the medication and subsequently died from a pulmonary embolism.
The man’s death is one of thirty negative health incidents reported to the Food and Drug Administration (FDA) in recent years regarding patients who watched lawyer ads for Xarelto lawsuits on television, stopped their medications and then suffered serious medical events, including blood clots, strokes, paralysis and death.
A Public Opinion Strategies survey finds these ads could be a widespread problem:
A new national survey of patients taking prescription drugs shows that 26 percent of them would stop taking their medication immediately, without consulting their doctor, after seeing a commercial against the drug’s manufacturer.
The survey, conducted by Public Opinion Strategies for the U.S. Chamber Institute for Legal Reform, includes the 12 drugs most targeted by mass tort lawyers, such as blood thinners, cholesterol and diabetes medications as well as drugs taken for anxiety, depression and indigestion. This population equals 46 million adults, meaning nearly 12 million Americans would stop taking their medicines immediately after seeing a lawsuit ad.
Non-doctors scaring the bejeebers out of people doesn’t sit well with the medical community. Last year, the American Medical Association called for such ads to include warnings that patients talk to their doctors first before they stop taking their medications.
“The onslaught of attorney ads has the potential to frighten patients and place fear between them and their doctor,” said AMA Board Member Russell W. H. Kridel, M.D. in a statement. “By emphasizing side effects while ignoring the benefits or the fact that the medication is FDA approved, these ads jeopardize patient care. For many patients, stopping a prescribed medication is far more dangerous, and we need to be looking out for them."
To highlight the problem, the House Judiciary Subcommittee on the Constitution and Civil Justicerecently held a hearing on these ads, and earlier this year, Committee Chairman Rep. Bob Goodlatte (R-Va.) sent letters to the American Bar Association and each of the state bars, asking them to adopt the AMA’s recommendation.
For some the bigger danger than a medical side effect is watching a misleading lawyer ad.
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Attorney Drug Ads Draw Criticism, But Little Action After House Hearing
Jun 23, 2017 | Law.com
By Cogan Schneier
Democratic lawmakers appeared reluctant Friday to further investigate drug ads by plaintiffs lawyers, though some Republicans, doctors and lawyers say the ads create serious health and safety problems.
In a hearing before the House Judiciary Subcommittee on the Constitution and Civil Justice, lawmakers sparred over whether lawyers’ TV commercials highlighting negative side effects of certain drugs are unethical and warrant increased regulation. The ads are regulated by state bar associations, but some doctors, lawyers and business groups argue it’s not enough because patients, frightened by the ads, sometimes stop taking their medication without consulting doctors. However, there have been few complaints of lawyer misconduct tied to the commercials.
“Today’s hearing presents a new topic for us, but it’s old wine in a new bottle,” said Rep. Steve Cohen, D-Tennessee. “It’s another attack on trial lawyers … and the beneficiaries of this attack on the plaintiffs bar are well-heeled corporate interests that would benefit greatly and would prefer probably not to [have] attorneys at all unless they were on the defense side.”
Dr. Ilana Kutinsky, a cardiac electrophysiologist, and Dr. Shawn Fleming, a vascular surgeon, both testified about patients they’ve cared for who stopped taking drugs after seeing the ads. Kutinsky pointed out that older patients may already be frightened, and an ad can push them to stop taking medications.
The fight over attorney drug ads is another issue that deepens the rift between the defense bar and plaintiffs lawyers. Lisa Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform, said Thursday the ads are “alarmist” and Congress is right to get involved. Committee Chairman Bob Goodlatte, D-Virginia, wrote letters to state bar associations in March urging them to require that ads include warnings to patients to consult a doctor before discontinuing medication. He also asked if complaints had been filed on the issue, though no association reported any.
During the hearing, the doctors suggested that consumers may not know how to file complaints, and also likely don’t realize when they should. Attorney ethics expert and lawyer Lyda Shely said that anyone can submit a complaint over the ads, including doctors, and that hundreds of complaints are filed against lawyers every day. She added that it’s not just consumers who complain, but also other lawyers.
Republicans also questioned whether attorneys should be held to a higher standard for false or misleading ads. Rep. Steve King, R-Iowa, likened the commercials to political ads, noting that even though there may be a “thread of truth” in them, they leave out “a whole ocean of information that’s necessary to evaluate.”
King also questioned why, if doctors are liable for malpractice when they prescribe the wrong drug, attorneys are not liable for their ads.
“If the misinformation from attorneys brings about death or injury, and doctors are paying for their professional errors, why aren’t attorneys paying for theirs?” King asked University of Oregon School of Law professor Elizabeth Tippett.
Tippett suggested lawyers may be liable under a common-law tort claim. Tippett, who advocated for greater self-regulation by attorneys, said that while the ads aren’t necessarily untruthful, she was more concerned about the frightening tactics used in the commercials.
The Chamber’s ILR released a survey this week that showed one in four Americans taking certain prescription medicines said they would stop immediately if they saw ads promoting lawsuits against the drug’s manufacturer. A Republican polling firm, Public Opinion Strategies, conducted the survey.
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OP-ED: Warning: Lawsuit ads may be harmful to the health of Americans
Jun 23, 2017 | The Hill
By Lisa A. Rickard
Two years ago, a 45-year-old man, who suffered from a deep vein thrombosis, or blood clot, was watching television. He saw a commercial from a lawyer advertising for lawsuits over the blood thinning medication Xarelto, which the man’s doctor had prescribed to help dissolve the clot.
The patient apparently found the claims in the ad so frightening he stopped taking the medication and subsequently died from a pulmonary embolism.
The man’s death is one of thirty negative health incidents reported to the Food and Drug Administration (FDA) in recent years regarding patients who watched lawyer ads for Xarelto lawsuits on television, stopped their medications and then suffered serious medical events, including blood clots, strokes, paralysis and death.
The sometimes deadly side effect of lawyers essentially dispensing medical advice through alarmist television advertising is a growing health problem.
A new national survey of patients taking prescription drugs shows that 26 percent of them would stop taking their medication immediately, without consulting their doctor, after seeing a commercial against the drug’s manufacturer.
The survey, conducted by Public Opinion Strategies for the U.S. Chamber Institute for Legal Reform, includes the 12 drugs most targeted by mass tort lawyers, such as blood thinners, cholesterol and diabetes medications as well as drugs taken for anxiety, depression and indigestion. This population equals 46 million adults, meaning nearly 12 million Americans would stop taking their medicines immediately after seeing a lawsuit ad.
Doctors are so concerned about lawyer ads for drug lawsuits that last year the House of Delegates of the American Medical Association (AMA) passed a resolution calling the ads “fear mongering” and “dangerous” for patients. The AMA said the lawyer ads emphasize the side effects and ignore the life-saving benefits of FDA-approved drugs. They called on the government to require warnings on these lawsuit commercials that tell patients not to stop any medication without first consulting their doctor.
Few of the hundreds of thousands of lawyer drug ads currently running on television stations around the country carry any such warnings. Instead, most use sirens, ambulances and ominous sound effects and graphics, often claiming falsely to be “medical alerts” impersonating public service announcements and always urging listeners to call the sponsoring law firm or phone numbers like 1-800-BAD-DRUG.
Advertising for drug lawsuits has gone up more than 60 percent since 2008, according to analysis by X Ante/Kantar Media. Last year, lawyers spent an estimated $149 million on negative drug ads with the most money spent to air 128,000 commercials recruiting plaintiffs for suits against the blood thinning drug Xarelto.
To be sure, pharmaceutical companies also spend lots of money on advertising drugs, but there is a major difference. Everything a pharmaceutical company says in its advertising about a drug, including the risk of side effects, has to be approved by the FDA.
Meanwhile, lawyer ads are not scrutinized by the FDA, though some have suggested that this could be within their mandate to protect the public health. The content of lawyer ads, like all commercial speech, technically falls under the Federal Trade Commission (FTC), but according to a recent report in the Wall Street Journal, the FTC has never pursued an investigation or action against mass tort attorney ads.
Lawyer ads are supposed to conform to attorney ethics rules and not contain any misinformation. These rules are policed by the various state bar associations. However, a comprehensive study of lawyer advertising by University of Oregon law professor Elizabeth Trippett found that no ethics complaints have been filed over lawyer ads for more than 30 years.
This week, a House Judiciary Committee subcommittee convenes a hearing on the subject of trial lawyer TV ads and their dangers to the public health. This is an important next step in the effort to ensure that ads for these lawsuits are not misleading the public and in so doing endangering patient health.
Last March, Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, sent letters to the American Bar Association and bar associations in 50 states urging them to amend the Model Rules of Professional Conduct by adopting the AMA’s recommendation.
Goodlatte said that all legal advertising should include a “clear and conspicuous admonition to patients not to discontinue medication without consulting their physician.” He said the lawyer ads should also remind patients that the drugs are approved by the FDA and are prescribed because of their overwhelming health benefit.
Goodlatte expressed alarm over the case of the 45-year-old man and others who have died or suffered medical consequences because they were scared into stopping what, for them, was a life-saving medication.
It is time to do something, he said, “lives depend on it.”
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House Debates Whether Atty 'Bad Drug' Ads Harm Patients
Jun 23, 2017 | Law360
By Dani Kass
Attorney advertisements touting the dangerous side effects of drugs should be better regulated because they can cause patients harm, some members of a U.S. House of Representatives Judiciary Committee subcommittee said in a contentious hearing Friday morning.
Those who called the Constitution and Civil Justice subcommittee meeting warned that patients scared by these commercials take themselves off necessary medication without consulting a doctor, sometimes with fatal results. Their opponents defended attorneys’ First Amendment rights and called the hearing an attack on the plaintiffs’ bar, which is just trying to help harmed consumers.
The handful of all-male representatives attending the hearing questioned two medical doctors, Ilana Kutinsky and Shawn H. Fleming, and two attorneys, Lynda C. Shely of the Shely Firm and University of Oregon School of Law professor Elizabeth Tippett.
The doctors and professor testified to examples of patients disregarding their doctors’ medical orders and taking themselves off drugs or refusing surgery after being scared off by attorneys advertising mass torts suits. Kutinsky said the commercials should have clear statements that they’re not being presented by medical professionals and claimed that such ads undermine the physician-patient relationship.
“Because lawyers are held in high esteem, they can eradicate sound medical advice with a single advertisement despite no medical training,” she said.
Fleming said the ads tend to come off as patients having a "false choice," where they can either continue to take the medicine “and spontaneously bleed to death,” or stop taking the medication and be OK. The ads ignore the fact that these drugs are approved by the U.S. Food and Drug Administration and are at times life saving.
“Patients perceive these commercials as direct medical advice,” Fleming said. For that reason, the ads may not deserve First Amendment protection, as it's comparable to when a doctor gives bad medical advice, which is not protected free speech, he said.
Rep. Steve Cohen, D-Tenn., said there’s no evidence that these advertisements are false or misleading, and therefore they must be allowed. Any attempt to do otherwise is “surely constitutionally suspect, at best,” he said.
Cohen also claimed any attempt to shut these commercials down is giving into the pharmaceutical industry and "enriching the rich."
Attorney advertising is regulated by state supreme courts and state bar associations, Shely said. Anyone has the standing to report misleading or false advertisements to those bodies, which could prompt an investigation and action. Those bodies do get a lot of complaints from consumers, but few to none are about false advertisements, she said, showing “the current system does work.”
Tippett added that just because the facts are literally correct, doesn’t mean they’re in context. Kutinsky said patients don’t always know when an advertisement is false, so they can’t report it.
Rep. Bob Goodlatte, R-Va., said even if there are few or no complaints, that doesn’t change the fact that people are becoming injured or dying from these advertisements.
Cohen said the real problem is the commercials pushing drugs on patients, getting them to go to their doctors and “like Huey Lewis and the News, say, ‘I want a new drug.’”
Rep. John Conyers, D-Mich., said the “onus is on physicians and other medical professionals to be proactive in advising patients of benefits and risks of medication. That burden should not be shifted to attorney advertisements to highlight the risk of those medications.” -
Are Drug Ads Endangering Patients' Lives? Chamber Lawyer Says Yes
Jun 23, 2017 | Corporate Counsel
By Sue Reisinger
Are ads from plaintiffs lawyers about prescription drug lawsuits endangering lives by frightening patients into stopping their medications? A U.S. House subcommittee hearing scheduled for Friday on that issue has drawn lawyers from both sides into the fray.
Lisa Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform, said in a statement issued Thursday, “Alarmist plaintiff lawyer ads targeting prescription drugs can literally scare people to death. Congress is right to examine their impact on the public’s health and to consider how this can be remedied.”
Rickard cited a new online survey showing that one in four Americans would stop taking their prescription medication—without consulting their doctor—after seeing ads promoting lawsuits against the drugs’ manufacturers. “And 84 percent [of respondents] say they would be concerned if they saw a lawsuit ad about a medicine they were taking,” according to ILR’s survey.
But at least two other attorneys scheduled to testify Friday before the House Judiciary Subcommittee on Constitution and Civil Justice suggest looking elsewhere to solve the problem, and not at Congress.
Lynda Shely, owner of the Scottsdale, Arizona-based Shely Firm, which provides ethics advice to attorneys and law firms, said more government regulation of lawyer advertising is not necessary. Adding such regulation “may have the unintended effect of reducing competition and increasing legal fees to consumers,” she said in her prepared testimony to the subcommittee.
Shely added, “In all of my years advising law firms about their ethical obligations in advertising, including 10 years as the State Bar of Arizona director of lawyer ethics, I have never once heard of a consumer complaining to a state lawyer regulation office that they were misled by a lawyer advertisement about a pharmaceutical.”
Citing First Amendment protections for commercial speech, she said the best answer to the problem is to put more responsibility on doctors. “It would seem incumbent upon medical professionals to advise their patients not to stop their medications without consulting them first,” Shely said.
Two doctors, in their prepared testimony, said they both have lost a patient because the person stopped taking anticoagulant meds due to a lawsuit ad. One of them, Dr. Ilana Kutinsky of William Beaumont Hospital in Troy, Michigan, recommended that medical attorney advertising “should contain a clear disclosure, warning patients from taking any action prior to discussing with a qualified medical professional.”
The ILR supports an arm of the American Medical Association, which has passed a resolution calling for the government to require lawyers to include warnings in their ads, telling patients not to stop any medication without consulting their doctor.
But Elizabeth Tippett, assistant professor at the University of Oregon School of Law, suggested instead that attorney self-regulation is the answer. Tippett said studies show that most of the $114 million a year in drug injury advertising is bought by organizations that are not law firms, but sell contact names to lawyers.
“We need to shine a light on their practices, and if they engage in deceptive advertising, litigators need to vote with their dollars and stop doing business with them,” Tippett said in her prepared testimony.
“I urge the [American Bar Association] and state bars to take this issue seriously, and invest their expertise and resources into understanding this issue and providing high-quality advice to lawyers and advertisers,” Tippett concluded.
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Franks subcommittee to examine 'ethical responsibilities' of plaintiff lawyer Rx ads
Jun 22, 2017 | Arizona Business Daily
A U.S. House subcommittee on which Arizona Congressman Trent Franks (R-8) serves will hold a hearing tomorrow regarding the impact and oversight of plaintiff lawyer television ads that pitch lawsuits against makers of prescription drugs.
The House Judiciary Subcommittee on the Constitution and Civil Justice hearing, Examining Ethical Responsibilities Regarding Attorney Advertising, will come a day after the U.S. Chamber Institute for Legal Reform (ILR) released a national survey showing that these plaintiff lawyer ads may be causing some patients to cease taking their prescribed medicines.
According to that survey, conducted for ILR by Public Opinion Strategies, one in four Americans who are currently taking prescription medicines say "they would stop taking them immediately — without consulting their doctor" after seeing such lawyer advertisements.
Seven in 10 respondents "have seen a trial lawyer ad for a lawsuit over a prescription medicine" and 84 percent say they would "be concerned if they saw a lawsuit ad about a medicine they were taking."
The full survey findings can be found here.
The hearing in Franks' subcommittee comes several months after the chair of the full House Judiciary Committee, Rep. Bob Goodlatte (R-VA), sent letters to the American Bar Association and every state bar association, urging the organizations to adopt requirements for warnings on trial lawyer advertisements that urge patients to discontinue the use of some medicines.
In his letters, Goodlatte cited a Heart Rhythm Journal article which found that a number of patients have "ceased using their anticoagulent without consulting a physician after viewing negative legal advertisements."
According to that article, "in the majority of cases, patients experienced a stroke or transient ischemic neurological event; 2 patients had persistent residual paralysis. One patient, a 45-year-old man receiving rivaroxaban for treatment of deep vein thrombosis, stopped the drug and died of a subsequent pulmonary embolism, and 1 female patient, receiving rivaroxaban for stroke prevention, stopped the drug and died of a massive stroke."
Goodlatte noted that the American Medical Association recently adopted a resolution that supports a “requirement that attorney commercials which may cause patients to discontinue medically necessary medications have appropriate warnings that patients should not discontinue medications without seeking the advice of their physician.”
“Alarmist plaintiff lawyer ads targeting prescription drugs can literally scare people to death,” said ILR President Lisa A. Rickard in a media statement accompanying the announcement of the survey findings. "Congress is right to examine their impact on the public’s health and to consider how this can be remedied."
The hearing, which begins at 9:00 a.m., will be live streamed here.
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Plaintiff lawyer ads may scare some Americans from taking their prescriptions, finds new survey
Jun 22, 2017 | American Pharmacy News
Do television ads by plaintiffs' lawyer firms hawking lawsuits over prescription drugs cause patients to cease taking their prescribed prescriptions?
According to a new survey released by the U.S. Chamber Institute for Legal Reform (ILR), one in four Americans who are currently taking prescription medicines say "they would stop taking them immediately — without consulting their doctor" after seeing such lawyer advertisements.
“Alarmist plaintiff lawyer ads targeting prescription drugs can literally scare people to death,” said ILR President Lisa A. Rickard of the survey findings.
The survey was conducted for ILR by Public Opinion Strategies, and found that seven in 10 Americans "have seen a trial lawyer ad for a lawsuit over a prescription medicine" and 84 percent say they would "be concerned if they saw a lawsuit ad about a medicine they were taking."
According to ILR, the survey covered the opinions of "all Americans," but particularly those prescribed drugs "most often targeted by plaintiffs' firms." These include blood thinners and medications to treat cholesterol, diabetes, anxiety, depression and indigestion.
As American Pharmacy News reported in March, such plaintiff lawyer advertising has caught the eye of some in Congress. U.S. House Judiciary Chairman Bob Goodlatte (R-VA) recently sent letters to the American Bar Association and every state bar association, urging the organizations to adopt requirements for warnings on trial lawyer advertisements that urge patients to discontinue the use of some medicines.
"Indeed, much of this advertising is designed to frighten patients," wrote Goodlatte. "After emphasizing the potential side effects of an FDA approved and doctor prescribed medication, one advertisement urges patients to call 1-800-BAD-DRUG — a less than subtle suggestion that the drug in question is inherently harmful."
In fact, the House Judiciary Subcommittee on the Constitution and Civil Justice will hold a hearing tomorrow at 9 a.m., entitled, "Examining Ethical Responsibilities Regarding Attorney Advertising."
“Congress is right to examine their impact on the public’s health and to consider how this can be remedied," said Rickard of that hearing and of Goodlatte's recent letters to the bar associations.
In his letters, Goodlatte cited a Heart Rhythm Journal article which found that a number of patients have "ceased using their anticoagulent without consulting a physician after viewing negative legal advertisements."
According to that article, "in the majority of cases, patients experienced a stroke or transient ischemic neurological event; 2 patients had persistent residual paralysis. One patient, a 45-year-old man receiving rivaroxaban for treatment of deep vein thrombosis, stopped the drug and died of a subsequent pulmonary embolism, and 1 female patient, receiving rivaroxaban for stroke prevention, stopped the drug and died of a massive stroke."
Goodlatte noted that the American Medical Association recently adopted a resolution that supports a “requirement that attorney commercials which may cause patients to discontinue medically necessary medications have appropriate warnings that patients should not discontinue medications without seeking the advice of their physician.”
ILR has made the full findings of its recent survey available to the public here.
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House Judiciary Committee to hold hearing on mass torts advertising
Jun 22, 2017 | Reuters (Blog)
By Alison Frankel
The U.S. House Judiciary Committee is intensifying its scrutiny of advertising by personal injury lawyers looking for clients injured by pharmaceuticals. On Friday, the committee will hear about the consequences of legal advertising from four witnesses – two doctors who say in written statements that they’ve seen patients die because lawyers’ ads scared them off of their medications; a legal ethics expert who argues there’s no need for additional regulation of legal advertising; and a scholar of legal advertising who said in a fascinating and fact-packed overview that no widescale study has established a link between lawyers’ ads and patient decisions.
Advertising by personal injury lawyers has become a corporate bugaboo, especially for pharmaceutical companies facing mass tort litigation over supposedly defective products. Defendants can’t wipe the often lurid ads off televisions and the Internet because the U.S. Supreme Court confirmed lawyers’ First Amendment right to advertise for clients in 1972’s Bates v. State Bar of Arizona. So recently, the business lobby has put out the message that legal ads are spreading misinformation about safe, effective drugs.ADVERTISING
On Thursday, for instance, the U.S. Chamber of Commerce sent out news of a new poll conducted for its Institute of Legal Reform just in time for the House hearing. The poll found that 84 percent of those who responded said they would be concerned if they saw a lawyer’s ad for a drug they were taking. Twenty-five percent said they would stop taking the medication without consulting their doctor.
House Judiciary Committee chairman Bob Goodlatte has already tipped his hand on the questions the committee’s witnesses will address at Friday’s hearing, which is entitled “Examining Ethical Responsibilities Regarding Attorney Advertising.” In March, the Virginia Republican sent letters to state bar groups and the American Bar Association, urging them to require legal advertisements to carry a disclaimer advising patients to consult doctors before discontinuing use of their medication. Citing a resolution of the American Medical Association that said patient care is jeopardized by personal injury lawyer advertising, Goodlatte said the legal profession, “which prides itself on the ability to self-regulate, should consider immediately adopting common sense reforms.”
ABA president Linda Klein responded that every state already prohibits false and misleading ads and polices lawyers for dishonesty or fraudulent conduct. Those regulations, she suggested, are sufficient, given lawyers’ First Amendment rights and the importance of alerting the public about harmful products. "State supreme courts (and, therefore, the ABA Model Rules) would need to find a compelling interest to regulate such advertising beyond a concern that some members of the public might misunderstand an advertising message that is not misleading,” Klein wrote.
Written testimony from one of the witnesses scheduled to testify Friday at the Judiciary Committee hearing more or less echoes Klein’s letter. Ethics lawyer Lynda Shely of the Shely Firm argued that imposing more rules on ads “will not prevent misunderstanding by a few members of the public about advertisements that are neither false nor misleading,” her statement said. “The existing rules regulating lawyer advertising are sufficient to protect the public.” If doctors are worried about their patients dropping medication, Shely said, then those doctors should bear the responsibility of advising patients.
Two physicians said in written statements that the proliferation of ads by lawyers trolling for clients supposedly injured by the blood-thinner Xarelto has impaired medical care. North Carolina vascular surgeon Shawn Fleming said in written testimony that Xarelto ads have made patients “concerned, confused and even hostile.” The doctor said one patient with a pulmonary embolism flat-out refused to take life-saving blood-thinning medication because of such ads. That patient, Fleming said, later died from the embolism.
Michigan physician Ilana Kutinsky said in a written statement that one of her patients died of a stroke when she stopped taking Xarelto after receiving a lawyer’s flyer about its risks. “I strongly believe in freedom of speech but not when it recklessly places the public at risk,” Kutinsky’s statement said. “Making generalized, sweeping claims regarding medical treatments with no medical training is negligent and can have dangerous consequences.”
Kutinsky cited a Medwatch review of 31 patients who said they stopped taking Xarelto, without consulting their doctors, in response to advertisements by lawyers. Twenty-three patients experienced a stroke, according to the study, and two died.
Neither Kutinsky nor the U.S. Chamber, which also cited the Medwatch review, mentioned that the Medwatch study was conducted by Janssen Pharmaceuticals, the maker of Xarelto. I got that information from the written statement of House Judiciary Committee witness Elizabeth Tippett, a law professor at the University of Oregon. Unlike the other witness statements, Tippett’s testimony includes empirical evidence and actual scholarship. Perhaps not surprisingly, she concludes that the impact of legal advertising is more nuanced than hard-liners might like.
Tippett put a hard number on the market for legal ads. According to national advertising data she collected, national cable and broadcast networks ran 53,526 drug injury advertisements between July 2015 and July 2016. The cost of the ads – which tend to peak in connection with FDA actions - was an estimated $114 million, Tippett said.
Many of the ads are framed as “medical alerts” or “patient warnings,” apparently to grab viewers’ attention, Tippett said. When ads look like public service announcements or government warnings, she said, viewers may not recognize them as attorney advertising, particularly because ad sponsors don’t always identify themselves.
“Without knowing the intent of the advertisement, or who is sponsoring it, consumers will have trouble critically analyzing the advertising message,” Tippett wrote. “Consumers are actually pretty sophisticated at processing marketing messages but they need to be provided enough cues to trigger their preexisting knowledge.”
Tippett said the rise of advertising firms that specialize in generating mass torts client leads can complicate state bar regulation of ads because regulators don’t know whom to hold accountable. Her research, for instance, has concluded that legal ads masquerading as public service warnings are misleading, but apparently no state bar association or federal agency has sought to discipline any lawyer in connection with advertising to attract pharma plaintiffs.
According to Tippett, there’s still not solid evidence that legal ads cause patients to stop taking their medications. “Little is known about how consumers respond to the medical information in these ads, and whether they influence consumer decision-making,” she said. One of her previous studies found no association between increased drug injury advertising volume and Medicare prescription rates. But in research for an upcoming paper, she said, she and a co-researcher found some evidence that lawyer ads may be distorting patients’ perceptions of the drugs they’ve been prescribed.
Tippett is calling for the ABA to lead an effort to collect data on how lawyers’ ads shape consumer perceptions. She also believes that deregulating attorneys’ referral fees will ultimately benefit consumers by enhancing the transparency of the legal advertising business. Finally, she wants a rating system for legal ads that would call out deceptive advertisers.
The Judiciary Committee’s hearing starts at nine on Friday morning.
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RX Drug Lawsuit Ads Could Scare Millions Out of Taking Their Medications
Jun 22, 2017 | U.S. Chamber Institute for Legal Reform
By (Press Release)
One in four Americans taking certain prescribed medicines say they would stop taking them immediately—without consulting their doctor—after seeing ads promoting lawsuits against the drugs’ manufacturers, according to a new national survey released today by the U.S. Chamber Institute for Legal Reform (ILR).
This research comes amid growing concern for trial lawyer drug advertising. In 2016, an arm of the American Medical Association (AMA) passed a resolution calling these types of ads “fear mongering” and “dangerous” for patients. Additionally, the organization called for the government to require lawyers to include warnings in the ads telling patients not to stop medication without consulting their doctor. Then, Rep. Bob Goodlatte, chairman of the House Judiciary Committee, sent letters to the American Bar Association and all 50 state bar associations urging them to adopt the AMA’s recommendation.
Now, the House of Representatives Judiciary subcommittee will hold a hearing on the dangers of these lawsuit ads. The hearing will take place on June 23nd and can be livestreamed here.
According to the research released today by ILR, seven in ten Americans have seen a trial lawyer ad for a lawsuit over a prescription medicine. And 84 percent say they would be concerned if they saw a lawsuit ad about a medicine they were taking.
These numbers suggest the impact of drug lawsuit ads on the public health could be significant. According to a recent report, at least 30 people suffered serious medical problems—including two deaths—because they stopped taking Xarelto without their doctors’ approval after seeing one of these lawsuit commercials.
The newly released data surveyed 1,335 adults 18+, with 500 adults who were taking one of 12 targeted prescriptions. It was conducted May 5 through 25, 2017, with a margin of error +/- 3.5%. You can view the full report here.
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