LAWYER LIES? House Hearing Goes After Attorneys’ Exaggerated Drug Ads

(Joshua Paladino, Liberty Headlines) Proponents of attorney drug advertisements say they identify the potentially harmful side effects of prescription drugs and place an important check on pharmaceutical companies, but opponents claim they are scaring people into not taking prescribed medication.

Steve King photo

Steve King Photo by Gage Skidmore (CC)

The Subcommittee on the Constitution and Civil Justice, under the House Judiciary Committee, hosted a hearing on Friday to examine whether attorney drug advertisements provide a beneficial or harmful service to the public. House members and witnesses discussed attorney advertisements about blood thinners, such as Warfarin and Xarelto.

The advertisements often present internal bleeding as a common side effect, but in reality the risk is usually very low, while the possibility of stroke from not taking the medicine is much greater, according to testimony given by Rep. Steve King (R-IA). In the case described by King, the patient’s risk of stroke was 4.8 percent without the medicine and the risk of internal bleeding from the drug was 0.0009 percent.

Rep. Steve Cohen (D-TN) said, “lawyer advertisements serve as a vital protection for consumers against dangerous drugs.” He argued that money-grubbing pharmaceutical companies’ advertisements pose a greater risk to the public than lawyer advertisements.

Steve Cohen photo

Steve Cohen Photo by Freedom To Marry (CC)

“That’s the real threat to consumers, is drug advertising,” Cohen said. “[Consumers] should not be influenced by advertisements and the insatiable greed of drug companies. Make no mistake, this hearing may be framed as one of concern by health care professionals about the potentially harmful effects of attorney advertising on drug cases to the public, but in reality the aim is to protect companies from being held accountable for harmful drugs.”

Ilana Kutinsky, a board-certified cardiac electrophysiologist, said she was not paid to be there by a legal or political organization, and she came only as a “concerned doctor.” She argued lawyers, not medical professionals, distort the truth for profit.

“Patients often do not recognize the solicitous nature of a tort ad. They do not consider the financial motive behind the message and assume that an attorney, a licensed professional, must have their best interest in mind,” Kutinsky said. “They are easily scared into discontinuing a medicine based on a well-crafted advertisement.”

Kutinsky asked the House Judiciary Committee to consider a regulation requiring attorney drug advertisements to contain a disclaimer that would state the message is not one of a medical professional.

Cohen said further regulation of advertisements would be “constitutionally suspect as best.”

“Advertising is constitutionally protected free speech,” Cohen said. “Only when the advertising is false or misleading may it be prohibited, and only under limited circumstances may states impose regulations on otherwise truthful, non-misleading advertising.”

Attorney Lynda Shely, a member of the American Bar Association, claimed attorney drug advertisements are already well regulated.

“We are regulated by the rules of professional conduct, and those rules prohibit false and misleading advertising by lawyers,” Shely said.

Shely requested the House Judiciary Committee not pursue new regulations. She said there is a procedure in place to ensure truthfulness in advertising, which concerned individuals should pursue.

“Submit any ads that you are concerned about to the appropriate state regulators so that they can take appropriate action,” Shely said.

Shawn Fleming, a board-certified vascular surgeon, said he does not believe attorney drug advertisements present accurate information.

“It’s my opinion that the tone and content of these advertisements imply a qualitative judgment about these medications that are just not true,” Fleming said. “When you say, ‘call 1-800-BAD-DRUG,’ that clearly implies it’s a bad drug, which runs counter to current medical evidence and 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. That’s actually not the case,” he continued. “If they don’t take the medication they could die and are more likely to die.”

Dishonest and inaccurate drug advertisements are not protected by the First Amendment and could be regulated or discontinued.

Rep. Bob Goodlatte (R-VA) testified against lawyer advertisements.

“These attorney advertisements are having a real world impact,” Goodlatte said. “Not only do they create a barrier between doctors and patients, but they are endangering these patients’ lives.”