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Some Lawyer Ads Can Scare You To Death

Palisades Hudson, August 16, 2017

By: Larry M. Elkin

Many doctors and pharmacists bemoan the omnipresent advertising for prescription drugs prompting viewers to “ask their doctor” about a product that may or may not be the best – or most economical – treatment for a patient’s condition.

But a different kind of TV advertisement can create an even more dangerous outcome, in which patients whose doctors prescribed a medication stop taking it.

Lawyers, especially those who specialize in class-action suits, have long used television spots to solicit clients. And fear is a particularly potent advertising tactic. So when an ad details a variety of possible “serious and potentially fatal” side effects connected to a particular medication, it is acting as designed. Yet these ads can create a side effect of their own: Whether or not viewers call the law firm, advertising-induced fear may lead them to stop taking their prescriptions without talking to their doctor first.

This is not a hypothetical problem. Johnson & Johnson’s Janssen Pharmaceuticals unit compiled safety reports that it provided to the Food and Drug Administration, in which it identified 28 cases of serious adverse effects attributed to patients stopping use of the blood thinner Xarelto after seeing ads listing its risks. Two of those cases were fatal. (Xarelto, incidentally, was the most-targeted drug in lawyer commercials in 2016, The Wall Street Journal reported.)

Xarelto patients are not alone. In 2003, the U.S. Chamber Institute for Legal Reform surveyed 300 patients, and found a quarter would stop taking medication immediately if they saw a commercial discussing litigation over it. A 2007 study commissioned by the National Council for Community Behavioral Healthcare and drug maker Eli Lilly found that, of patients who stopped taking their antipsychotic medications without approval, half attributed the decision to law firm advertisements.

While all of these studies have been relatively small, they illuminate a real concern. In the summer of 2016, the American Medical Association adopted a policy to advocate that attorneys’ commercials include “appropriate” and “conspicuous” language urging viewers to talk to their doctors before they stop taking a medication. AMA board member Russell W. H. Kridel, M.D., said, “The onslaught of attorney ads has the potential to frighten patients and place fear between them and their doctor,” and added that the spots “jeopardize patient care.”

At least one legislator is listening. Rep. Bob Goodlatte, R-Va., aligned himself with the AMA and several pharmaceutical manufacturers in pushing for a requirement that mass tort attorney ads focused on medications include such a warning. The Institute for Legal Reform at the U.S. Chamber of Commercealso endorsed the congressman’s call for change to the rules about this sort of advertising. Goodlattesent letters to state and national bar associations earlier this year urging them to regulate these advertisements, citing the AMA’s recommendation and the study of Xarelto patients.

The ads’ creators have responded that some drugs can pose real dangers to patients, and that big pharmaceutical companies sometimes exert outsize influence on doctors, especially when it comes to “off label” uses not approved by the FDA. Max Kennerly, an injury lawyer in Philadelphia, expressed concern that the mandated warning might confuse viewers and become “so lengthy that it overwhelmed the ad.” Others have argued that existing ethics rules are sufficient to deter any truly misleading advertisements.

Despite these objections, Goodlatte’s goal is reasonable. If attorneys are going to advertise on TV about the risks of medications – as they have a First Amendment right to do – they should be required to advise patients to consult doctors before discontinuing, just as drug makers disclose known side effects in their advertising. Currently, drug companies are subject to FDA rules, while lawyer ads are overseen by state bar associations. Including mandated disclosures hasn’t notably slowed the pace of drug makers’ advertising, and given the current level of spending on attorney advertising, it is hard to believe it would slow law firms down either.

That spending is significant. When researching this column, I was startled to discover just how much is spent on legal advertising (and I live in Florida, one of the hotbeds for such TV ads): a total of more than $1 billion a year and rising, with certain firms spending $20 million or more. Much of this is for routine ambulance-chasing cases following car and household accidents; the merits of that part of the trial bar are a topic for another day.

But nobody has been scared to death by a lawyer’s ad about slip-and-fall incidents. That is not the case, the evidence shows, for advertising for lucrative medical cases. Urging patients to consult, or at the very least alert, their doctors about their concerns before abruptly stopping a medication is a relatively simple requirement that may preserve the health – or even save the lives – of viewers inclined to be spooked.