On The Case

House Judiciary Committee to hold hearing on mass torts advertising

(Reuters) - The U.S. House Judiciary Committee is intensifying its scrutiny of advertising by personal injury lawyers looking for clients injured by pharmaceuticals. On Friday, the committee will hear about the consequences of legal advertising from four witnesses – two doctors who say in written statements that they’ve seen patients die because lawyers’ ads scared them off of their medications; a legal ethics expert who argues there’s no need for additional regulation of legal advertising; and a scholar of legal advertising who said in a fascinating and fact-packed overview that no widescale study has established a link between lawyers’ ads and patient decisions.

Advertising by personal injury lawyers has become a corporate bugaboo, especially for pharmaceutical companies facing mass tort litigation over supposedly defective products. Defendants can’t wipe the often lurid ads off televisions and the Internet because the U.S. Supreme Court confirmed lawyers’ First Amendment right to advertise for clients in 1972’s Bates v. State Bar of Arizona. So recently, the business lobby has put out the message that legal ads are spreading misinformation about safe, effective drugs.

On Thursday, for instance, the U.S. Chamber of Commerce sent out news of a new poll conducted for its Institute of Legal Reform just in time for the House hearing. The poll found that 84 percent of those who responded said they would be concerned if they saw a lawyer’s ad for a drug they were taking. Twenty-five percent said they would stop taking the medication without consulting their doctor.

House Judiciary Committee chairman Bob Goodlatte has already tipped his hand on the questions the committee’s witnesses will address at Friday’s hearing, which is entitled “Examining Ethical Responsibilities Regarding Attorney Advertising.” In March, the Virginia Republican sent letters to state bar groups and the American Bar Association, urging them to require legal advertisements to carry a disclaimer advising patients to consult doctors before discontinuing use of their medication. Citing a resolution of the American Medical Association that said patient care is jeopardized by personal injury lawyer advertising, Goodlatte said the legal profession, “which prides itself on the ability to self-regulate, should consider immediately adopting common sense reforms.”

ABA president Linda Klein responded that every state already prohibits false and misleading ads and polices lawyers for dishonesty or fraudulent conduct. Those regulations, she suggested, are sufficient, given lawyers’ First Amendment rights and the importance of alerting the public about harmful products. "State supreme courts (and, therefore, the ABA Model Rules) would need to find a compelling interest to regulate such advertising beyond a concern that some members of the public might misunderstand an advertising message that is not misleading,” Klein wrote.

Written testimony from one of the witnesses scheduled to testify Friday at the Judiciary Committee hearing more or less echoes Klein’s letter. Ethics lawyer Lynda Shely of the Shely Firm argued that imposing more rules on ads “will not prevent misunderstanding by a few members of the public about advertisements that are neither false nor misleading,” her statement said. “The existing rules regulating lawyer advertising are sufficient to protect the public.” If doctors are worried about their patients dropping medication, Shely said, then those doctors should bear the responsibility of advising patients.

Two physicians said in written statements that the proliferation of ads by lawyers trolling for clients supposedly injured by the blood-thinner Xarelto has impaired medical care. North Carolina vascular surgeon Shawn Fleming said in written testimony that Xarelto ads have made patients “concerned, confused and even hostile.” The doctor said one patient with a pulmonary embolism flat-out refused to take life-saving blood-thinning medication because of such ads. That patient, Fleming said, later died from the embolism.

Michigan physician Ilana Kutinsky said in a written statement that one of her patients died of a stroke when she stopped taking Xarelto after receiving a lawyer’s flyer about its risks. “I strongly believe in freedom of speech but not when it recklessly places the public at risk,” Kutinsky’s statement said. “Making generalized, sweeping claims regarding medical treatments with no medical training is negligent and can have dangerous consequences.”

Kutinsky cited a Medwatch review of 31 patients who said they stopped taking Xarelto, without consulting their doctors, in response to advertisements by lawyers. Twenty-three patients experienced a stroke, according to the study, and two died.

Neither Kutinsky nor the U.S. Chamber, which also cited the Medwatch review, mentioned that the Medwatch study was conducted by Janssen Pharmaceuticals, the maker of Xarelto. I got that information from the written statement of House Judiciary Committee witness Elizabeth Tippett, a law professor at the University of Oregon. Unlike the other witness statements, Tippett’s testimony includes empirical evidence and actual scholarship. Perhaps not surprisingly, she concludes that the impact of legal advertising is more nuanced than hard-liners might like.

Tippett put a hard number on the market for legal ads. According to national advertising data she collected, national cable and broadcast networks ran 53,526 drug injury advertisements between July 2015 and July 2016. The cost of the ads – which tend to peak in connection with FDA actions - was an estimated $114 million, Tippett said.

Many of the ads are framed as “medical alerts” or “patient warnings,” apparently to grab viewers’ attention, Tippett said. When ads look like public service announcements or government warnings, she said, viewers may not recognize them as attorney advertising, particularly because ad sponsors don’t always identify themselves.

“Without knowing the intent of the advertisement, or who is sponsoring it, consumers will have trouble critically analyzing the advertising message,” Tippett wrote. “Consumers are actually pretty sophisticated at processing marketing messages but they need to be provided enough cues to trigger their preexisting knowledge.”

Tippett said the rise of advertising firms that specialize in generating mass torts client leads can complicate state bar regulation of ads because regulators don’t know whom to hold accountable. Her research, for instance, has concluded that legal ads masquerading as public service warnings are misleading, but apparently no state bar association or federal agency has sought to discipline any lawyer in connection with advertising to attract pharma plaintiffs.

According to Tippett, there’s still not solid evidence that legal ads cause patients to stop taking their medications. “Little is known about how consumers respond to the medical information in these ads, and whether they influence consumer decision-making,” she said. One of her previous studies found no association between increased drug injury advertising volume and Medicare prescription rates. But in research for an upcoming paper, she said, she and a co-researcher found some evidence that lawyer ads may be distorting patients’ perceptions of the drugs they’ve been prescribed.

Tippett is calling for the ABA to lead an effort to collect data on how lawyers’ ads shape consumer perceptions. She also believes that deregulating attorneys’ referral fees will ultimately benefit consumers by enhancing the transparency of the legal advertising business. Finally, she wants a rating system for legal ads that would call out deceptive advertisers.

The Judiciary Committee’s hearing starts at nine on Friday morning.