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Warning: Lawsuit ads may be harmful to the health of Americans

The Hill, June 23, 2017

By: Lisa Rickard

Two years ago, a 45-year-old man, who suffered from a deep vein thrombosis, or blood clot, was watching television. He saw a commercial from a lawyer advertising for lawsuits over the blood thinning medication Xarelto, which the man’s doctor had prescribed to help dissolve the clot. 

The patient apparently found the claims in the ad so frightening he stopped taking the medication and subsequently died from a pulmonary embolism.

The man’s death is one of thirty negative health incidents reported to the Food and Drug Administration (FDA) in recent years regarding patients who watched lawyer ads for Xarelto lawsuits on television, stopped their medications and then suffered serious medical events, including blood clots, strokes, paralysis and death.

The sometimes deadly side effect of lawyers essentially dispensing medical advice through alarmist television advertising is a growing health problem.

A new national survey of patients taking prescription drugs shows that 26 percent of them would stop taking their medication immediately, without consulting their doctor, after seeing a commercial against the drug’s manufacturer.

The survey, conducted by Public Opinion Strategies for the U.S. Chamber Institute for Legal Reform, includes the 12 drugs most targeted by mass tort lawyers, such as blood thinners, cholesterol and diabetes medications as well as drugs taken for anxiety, depression and indigestion. This population equals 46 million adults, meaning nearly 12 million Americans would stop taking their medicines immediately after seeing a lawsuit ad.

Doctors are so concerned about lawyer ads for drug lawsuits that last year the House of Delegates of the American Medical Association (AMA) passed a resolution calling the ads “fear mongering” and “dangerous” for patients.  The AMA said the lawyer ads emphasize the side effects and ignore the life-saving benefits of FDA-approved drugs. They called on the government to require warnings on these lawsuit commercials that tell patients not to stop any medication without first consulting their doctor.

Few of the hundreds of thousands of lawyer drug ads currently running on television stations around the country carry any such warnings.  Instead, most use sirens, ambulances and ominous sound effects and graphics, often claiming falsely to be “medical alerts” impersonating public service announcements and always urging listeners to call the sponsoring law firm or phone numbers like 1-800-BAD-DRUG.

Advertising for drug lawsuits has gone up more than 60 percent since 2008, according to analysis by X Ante/Kantar Media. Last year, lawyers spent an estimated $149 million on negative drug ads with the most money spent to air 128,000 commercials recruiting plaintiffs for suits against the blood thinning drug Xarelto.

To be sure, pharmaceutical companies also spend lots of money on advertising drugs, but there is a major difference. Everything a pharmaceutical company says in its advertising about a drug, including the risk of side effects, has to be approved by the FDA. 

Meanwhile, lawyer ads are not scrutinized by the FDA, though some have suggested that this could be within their mandate to protect the public health. The content of lawyer ads, like all commercial speech, technically falls under the Federal Trade Commission (FTC), but according to a recent report in the Wall Street Journal, the FTC has never pursued an investigation or action against mass tort attorney ads.

Lawyer ads are supposed to conform to attorney ethics rules and not contain any misinformation. These rules are policed by the various state bar associations. However, a comprehensive study of lawyer advertising by University of Oregon law professor Elizabeth Trippett found that no ethics complaints have been filed over lawyer ads for more than 30 years.

This week, a House Judiciary Committee subcommittee convenes a hearing on the subject of trial lawyer TV ads and their dangers to the public health. This is an important next step in the effort to ensure that ads for these lawsuits are not misleading the public and in so doing endangering patient health.

Last March, Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, sent letters to the American Bar Association and bar associations in 50 states urging them to amend the Model Rules of Professional Conduct by adopting the AMA’s recommendation.

Goodlatte said that all legal advertising should include a “clear and conspicuous admonition to patients not to discontinue medication without consulting their physician.”  He said the lawyer ads should also remind patients that the drugs are approved by the FDA and are prescribed because of their overwhelming health benefit.

Goodlatte expressed alarm over the case of the 45-year-old man and others who have died or suffered medical consequences because they were scared into stopping what, for them, was a life-saving medication.

It is time to do something, he said, “lives depend on it.”

Lisa A. Rickard is president of the U.S. Chamber Institute for Legal Reform.