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March 27, 2014 at 11:59 AMComments: 0 Faves: 0

Risky Medicine: Pharmaceutical Lawsuit Advertising

By Jeffrey VanWingen M.D. More Blogs by This Author

I sat down with a diabetic patient of mine today, her worsening blood sugar control at the top of our agenda. We discussed potential causes and the potential long and short-term implications, but it became clear that we'd have to add a new drug to her regimen. I outlined two possible options discussing how it would work and what she should expect to gain taking it. Then we discussed dosing and possible side effects. Finally, I prepared her countering the information she would likely see on lawsuit commercials. 

These days such ads are becoming increasingly prevalent among the typical media barrage. Why is that? Should you be worried? Mostly likely not. I'd like to shed a bit more light in this dim practice of pharmaceutical lawsuit advertising and the negative impact it has on my practice of medicine.

Grabbing Attention

While the drugs are different, the message even these ads is largely the same. In a brief message designed to shock, the name of a pharmaceutical, "FDA" and words like "dangerous" or "warning" are flashed on the screen. This is then followed by the typical, "If you or a loved one," portion outlining various potential ailments attributed to a drug and concluded with a 1-800 number flashed over some smart looking backdrop such as volumes of law books or the "scales of justice." Sometimes the commercials allude to vast amounts of money to be gained. If they happen to be taking the medication or know someone else who does, the viewer is understandably left feeling worried and unsure how they should proceed.

A Brief History

Prior to the late 1970's, lawyers were prohibited from advertising their services to the general public  this is also true of medical services until recent decades). In 1977, however, the Supreme Court struck down this standard, holding that advertising in this capacity is a form of Constitutional free speech. With that, the floodgates had been opened and advertising in the legal arena has been increasing exponentially ever since. Just to illustrate, in 2009 alone, lawyers spent nearly $5000 million on TV advertising. 

The Rationale

Two words explain why the legal profession would target the pharmaceutical industry in large class action claims: big money. Recent history has shown Big Pharma to be an easy source for government fund tapping as they seek to support health reform. The FDA maintains a fine line for determination and maintenance of safety and health is a  fearful issue that breeds just the sort of rash action these lawyers are looking for.

The Set-Up

In the world of these large scale lawsuits, first is better if you're the law firm - it's a matter of huge sums of money. Of course, this requires clients - a lot of them- who fit the profile. Herein comes the ad campaign investment throwing out countless well-baited lines and (hopefully), reeling in huge numbers of "fish" - and a few prize catches among them. Therefore, law firms are always ready to pounce, keeping ad agencies and staff to act within hours of the smallest hint that there may be an issue with a pharmaceutical.Sometimes, this is done far before a case would even be possible, knowing it may never be. In fact, with more risky medications, even the hint of potential for an issue spurs the release of an ad campaign. "Can't be too careful!" is their thinking. They'll collect an inventory of contacts just in case a buck might be had by them.

The Fall-Out

Forgive the analogy, but the lawyers are like sharks swimming in a pool where even a drop of pharmaceutical blood can ignite a feeding frenzy. Unfortunately for the many, many Americans taking necessary medications, this largely leads to a lot of unwarranted fear. I can't help but imagine my more sensitive and impressionable patients watching daytime television and seeing the name of a pill that they swallow every day flashing on the screen with the words "warning" or "dangerous."  While I would hope they would call me, they are likely to call the legal firm where their name and contact information will be collected, however unlikely it is that they will receive any balanced information on the issue at hand. Even scarier, I worry they will decide to stop taking necessary medication on their own.

Fair Balance

If you've seen a commercial advertising a medication, you're familiar with the "If you take (medication) you may experience..."  spiel which typically takes up the last 5-10 seconds of the TV spot.  But what about these law firm commercials spreading unwarranted fear for a profit? Shouldn't they be forced to lay out their risks? Here's what I'd really like to hear them say: "The law firm represented here is a for-profit business.You will likely receive a small portion of the settlement while the law firm will make millions. These harmful side effects are rare and overshadowed by the benefits of the medication as determined by the FDA. Call your doctor for guidance in taking this medication as we are not medical experts but rather looking to make money on the imperfections of pharmaceutical products." These legal firm commercials, while within the bounds of free speech, are more about restitution than information.

My Take

As a primary care physician, I've got enough to think about in making sure my patients are well cared for. As I work to build up their health with the best tools I have, it's frustrating when outside breaks this down without good reason. Fundamental in my caring for patients is a trust that I am doing my best to live by the ancient medical credo primum non nocere - first do no harm.  These often times near-slanderous commercials harm this balance between myself and my patient.  As the law firms exercise their freedom of speech, so have I. 

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