WASHINGTON - A new paper says lawyer advertising is scaring patients into not taking their medications, leading to dozens of serious incidents – including six deaths from individuals who stopped using their blood-thinner.
The paper, released by the U.S. Chamber Institute for Legal Reform as part of its annual Legal Reform Summit, says television viewers were blitzed with 1.2 million such ads in 2016 by mass tort lawyers who should approach $1 billion in spending this year. The ILR owns this publication.
“There is mounting evidence that misleading information and exaggerated claims made in lawsuit ads prevent people from seeking treatment or lead them to stop taking a prescribed medication without consulting a doctor,” says the paper, prepared by Cary Silverman of Shook, Hardy & Bacon.
Projections for 2017 have lawyer advertising surpassing previous years. Nearly a half-million ads over prescription drugs and medical devices are expected, and asbestos ads should approach 200,000, the paper says.
A small group of law firms and marketing companies were responsible for half of the spending in 2016, according to statistics provided by X-Ante. They are the Pulaski Law Firm, Relion Group, Knightline Legal, Davis & Crump and Gold Shield Group.
“Even when scientific evidence suggests that some patients may experience side effects of complications from a drug or medical device, lawsuit ads do not discuss the actual level of risk,” the paper says.
“Without such information, viewers cannot compare the potentially life-saving or significantly life-improving benefits that the medication or device offers to what may be relatively infinitesimal risks.”
In 2016, the American Medical Association took a similar stance against lawyer advertising, deciding to advocate for a requirement that commercials include “appropriate” and “conspicuous” warnings.
The AMA said commercials can frighten patients and cause distrust between them and their doctors by emphasizing side effects while ignoring benefits.
“For many patients, stopping a prescribed medication is far more dangerous, and we need to be looking for them,” AMA board member Dr. Russell Kridel said last year.
For example, the Food and Drug Administration received reports that 31 patients who stopped taking the blood-thinner Xarelto after seeing a commercial experienced a medical event during a 15-month period after spending spiked on commercials targeting the drug.
Most of those patients experienced strokes, with two patients being paralyzed and two others dying.
The FDA’s most recent report, submitted Dec. 31 in response to a Congressional inquiry, showed 61 patients stopped using their Xarelto or Pradaxa after seeing commercials. Of that group, six died – three from strokes, one from cardiac arrest, one from a pulmonary embolism and one from an unreported cause.
“While harming patients, these lawsuit ads have achieved the results sought by plaintiffs’ lawyers,” the paper says.
“Over roughly three years, the ads have generated over 19,000 claims in federal court targeting Xarelto.”
So far, though, the cases that have gone to trial have resulted in defense verdicts. In Philadelphia, a large state court docket also features more than 1,500 Xarelto claims.
Philadelphia personal injury lawyer Max Kennerly told Legal Newsline last year, in response to the AMA’s concerns, that the organization is driven by its desire to have doctors be the sole source of information to patients about medications.
“Numerous studies have shown that: doctors spend only a few minutes with their patients discussing medication options, doctors routinely prescribe medications ‘off-label’ for purposes that weren’t approved by the FDA, doctors’ decisions about prescribing are heavily influenced by drug-company spending on the doctors, like free lunches and speaking opportunities.”
While he doesn’t purchase advertising online or on television, but instead maintains a website that discusses the cases he handles, Kennerly admitted that many of his clients were referred to him by attorneys who do, in fact, advertise.
“Advertisements play a central role in connecting people injured by drugs and medical devices to the lawyers who can help them,” he explained.
That being said, he doesn’t think the AMA’s push for warnings are necessary.
“Patients should know the potential risks of their drugs and should be able to have an informed conversation with their doctor about the drug they’re taking. Attorney advertisements are one of the primary ways that the public learns about new dangers of drugs and medical devices,” he said.
Plaintiffs’ lawyers don’t make up drug and medical device lawsuits “out of thin air,” he contends.
“If we can make it a few months without another drug or medical device being revealed as a threat to public safety, then we'll see fewer attorney advertisements,” he said.
The paper also includes testimonials from doctors who had a patient stop using his or her medication. Dr. Ilana Kutinsky says she treated a woman for several years, finally convincing her to take anti-coagulates.
When she had a massive stroke three years later, she was surprised to find that, two weeks earlier, the woman had received a flyer in the mail that warned her against using the medicine.
“She didn’t want to die and so she stopped her medication. She didn’t want to ‘bother’ me and decided to wait until her next appointment to discuss her decision,” Kutinsky said.
“Patients are dying because they are afraid to take the medications prescribed for them due to the fear brought on by these negative and one-sided campaigns.”
In March, House Judiciary Committee Chairman Bob Goodlatte, R-VA, wrote letters to each state bar urging them to require attorneys to include disclaimers that patients shouldn’t discontinue using their medications without consulting their doctors first.
The ILR paper, though, doesn’t expect lawyers to impose restrictions on themselves in this field, for several reasons:
-Ethics rules concern misleading communications about legal services, not misleading medical information;
-Ethics rules are enforced based on complaints filed by clients and competitors, not the public;
-Bar associations can’t regulate advertising by non-lawyer lead generators; and
-Bar associations are moving away from oversight of attorney advertising.
Indeed, Goodlatte’s efforts indicate the ILR’s view is true. The ABA and state bars have not adopted Goodlatte’s suggestion.
The ILR urged the Federal Trade Commission to get involved by prohibiting lawsuit advertising practices that are “clearly deceptive” and believes Congress should allow FDA to regulate drug information given in lawsuit commercials.
Similarly, in the St. Louis 22nd Judicial Circuit Court, Johnson & Johnson has argued that attorney advertising about its talcum powder has prejudiced the regional jury pool against it.
Dozens of plaintiffs claim Johnson & Johnson talcum powder caused ovarian cancer and that the company concealed the risks from customers.
The trials resulted in verdicts of $72 million in February2016, $55 million in May 2016, $70 million in October 2016 and $110 million in May.
The Missouri Court of Appeals for the Easter District vacated the $72 million verdict on Oct. 17.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.