Here’s a question for those who claim pharma profits are obscene. Have you looked at the drug tort industry? It’s huge! All drugs have side effects, and we take pains to help patients avoid them. But in today’s litigious environment, if patients experience a side effect, they — in the words of drug injury ads — “may be entitled to money damages.”
Take Johnson & Johnson. They’re now embroiled in more than 15,000 lawsuits simply involving talcum powder. Unlike class action suits, mass tort suits bundle tens, hundreds, or even thousands of plaintiffs, who are represented by hundreds of attorneys, generally working on a contingency basis. Judgments can run to hundreds of millions and even billions of dollars, with lawyers skimming up to 40% in contingency fees.
Although most awards are eventually overturned or drastically reduced, the appeals process takes years. Anyone who doesn’t realize damages and litigations costs will be passed along in the form of higher drug prices simply doesn’t understand business.
Just about everyone (except for tort lawyers of course) realizes this system is absurd, and for years, experts been struggling to fix it. Yet tort reform is difficult because every state has individual policies and legislators may change with every voting cycle. And let’s not forget a powerful trial lawyers lobby to whom any reform is anathema.
What do tort reform proponents want? First, we’d reset our priorities toward helping injured patients get better while worrying less about making lawyers rich.
Next, we’d try to discourage frivolous lawsuits. All too often manufacturers or their insurers are forced to settle flimsy claims simply because the costs of fighting are too great. Another step forward would be limiting the jury’s role to determining negligence. Let specialized judges determine monetary compensation and, if warranted, punitive damages.
Unfortunately, achieving these goals will be difficult and time-consuming. So here’s a modest idea to make tort litigation a bit fairer.
No one suggests banning drug injury ads. But why not expand the FDA’s oversight to include plaintiff recruitment ads?
We’re all familiar with “drug injury” ads. Last year, more than 53,000 plaintiff recruitment ads aired on TV alone. Many were sponsored by lawyers, while others were by companies specializing in connecting patients or family members with litigators. Many of these ads are false, misleading and, for lack of a better word, dangerous. While masquerading as public service announcements or FDA alerts, they urge people who have been exposed to certain drugs or medical products to call a hotline, often with a provocative number such as 1-800-BAD-DRUG. The spots typically close by dangling prospects of cash settlements.
These ads are dangerous because they may frighten patients into discontinuing an essential medication. A few years ago, Janssen Pharmaceuticals conducted a study of patients who had been taking Xarelto for a range of cardiovascular conditions. The study identified 31 patients who had experienced adverse events after having seen a Xarelto drug injury ad and stopped their treatment. Two patients died.
No one suggests banning drug injury ads. But why not expand the FDA’s oversight to include plaintiff recruitment ads? All it would take is an amendment to an existing law. The agency could prohibit ads disguised as PSAs or safety alerts; insist ads fully disclose attorney contingency fees; and require ads to caution patients not to discontinue drugs without talking to their physicians, and that’s just to start.
We’ll get true tort reform someday. But in the meantime, wouldn’t you love to see the last of TV spots telling you to call 1-800-RXS-EVIL?
From the January 01, 2020 Issue of MM+M - Medical Marketing and Media
