[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING ETHICAL RESPONSIBILITIES REGARDING ATTORNEY ADVERTISING
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JUNE 23, 2017
__________
Serial No. 115-22
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
STEVE KING, Iowa, Chairman
RON DeSANTIS, Florida, Vice-Chairman
TRENT FRANKS, Arizona STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas JAMIE RASKIN, Maryland
TREY GOWDY, South Carolina JERROLD NADLER, New York
C O N T E N T S
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JUNE 23, 2017
OPENING STATEMENTS
Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, Tennessee, Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 2
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 4
The Honorable John Conyers, Michigan, Ranking Member, Committee
on the Judiciary............................................... 6
WITNESSES
Ilana Kutinsky MD, Director of Atrial Fibrillation Services,
William Beaumont Hospital Troy
Oral Statement............................................... 8
Shawn H. Fleming MD, Vascular Surgeon, Novant Health Vascular
Specialists
Oral Statement............................................... 10
Lynda C. Shely, Partner, The Shely Firm
Oral Statement............................................... 12
Elizabeth Tippett, Assistant Professor, University of Oregon
School of Law
Oral Statement............................................... 14
Additional Material Submitted for the Record
Letters Submitted by the Honorable Steve King, Iowa, Chairman,
Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on
the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG-
115-JU10-20170623-SD004.pdf
http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG-
115-JU10-20170623-SD005.pdf
Statement submitted by the Honorable Steve King, Iowa, Chairman,
Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on
the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG-
115-JU10-MState-K000362-20170623.pdf
Statement Submitted by the Honorable Jamie Raskin, Maryland. This
material is available at the Committee and can be accessed on
the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG-
115-JU10-20170623-SD003.pdf
EXAMINING ETHICAL RESPONSIBILITIES REGARDING ATTORNEY ADVERTISING
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FRIDAY, JUNE 23, 2017
House of Representatives
Subcommittee on the Constitution and Civil Justice
Committee on the Judiciary
Washington, DC
The subcommittee met, pursuant to call, at 9:36 a.m., in
room 2141, Rayburn House Office Building, Hon. Steve King
(chairman of the subcommittee) presiding.
Present: Representatives King, Goodlatte, DeSantis, Franks,
Cohen, Conyers, Nadler, and Raskin.
Staff Present: John Coleman, Counsel; Jake Glancy, Clerk;
James Park, Minority Chief Counsel; Matthew Morgan, Minority
Professional Staff Member; and Veronica Eligan, Minority
Professional Staff Member.
Mr. King. The Subcommittee on the Constitution and Civil
Justice will come to order. Without objection, the chair is
authorized to declare a recess of the committee at any time.
We welcome everyone to today's hearing on ``Examining
Ethical Responsibilities Regarding Attorney Advertising.'' And
I now recognize myself for an opening statement.
Today's hearing will examine the ethical responsibilities
related to attorney advertising. I'd like to start off by
showing an ad by the law firm Pulaski and Middleman, L.L.C. The
ad will be projected on the screens to your side and to the
front for the members.
Go ahead with the ad, please.
[Video shown.]
Mr. King. Ladies and gentlemen on the committee, anyone who
has watched television in recent years has likely seen this ad
or one like it. They include a toll-free number, like 1-800-
BAD-DRUG, visuals of an injury, and a list of the drug's side
effects.
One bit of information that is not always included is a
warning to patients about talking to their doctor before
discontinuing use of the medication. Indeed, even if these ads
do provide a warning, it is in tiny, low-contrast text at the
bottom of the TV screen.
Studies show that these ads are reaching a broad audience.
A recent survey conducted by Public Opinion Strategies, for
example, states that nearly three-quarters of Americans say
they have seen ads by law firms about pharmaceutical lawsuits
in the last year. Three-quarters of Americans, that's well over
200 million people.
The same survey found that one in four people who see an
actual trial lawyer ad regarding a medicine they currently take
say they would immediately stop taking the medicine without
consulting the doctor.
The American Medical Association reported a similar effect.
According to a press release they issued last year, patients
were more likely to discontinue use of prescribed FDA-approved
pharmaceuticals after seeing television advertisements that,
quote, ``emphasize side effects while ignoring the benefits of
the fact that the medication is FDA approved,'' close quote.
Unfortunately, these ads are having terrible consequences.
A study published in the Heart Rhythm Journal reported that
patients who were prescribed the anticoagulant Xarelto and who
discontinued taking it after viewing a negative attorney
advertisement suffered serious injuries or have died. According
to the author, 75 percent of the patients experienced a stroke.
Two patients passed away, including a 45-year-old man.
These cases only account for those that have been reported
to the Food and Drug Administration's Adverse Event Reporting
System for Xarelto. There may be many more cases that have gone
unreported for this drug or many other drugs and medical
devices that have also been the subject of negative attorney
advertisements.
Today's hearing is intended to examine the effects of these
advertisements and to explore what can be done to prevent more
loss of life. I want to thank all our witnesses today for their
testimony, and I look forward to your perspectives on this
issue.
The chair now recognizes the ranking member of the
Subcommittee on the Constitution and Civil Justice, Mr. Cohen
of Tennessee, for his opening statement.
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
Like our hearing last week, today's hearing presents a new
topic for us, but it's old wine in a new bottle. It's another
attack on trial lawyers, advocates that make our country
different from others, as we have advocates to argue for us in
court, and the beneficiaries of this attack on the plaintiffs'
bar are well-healed corporate interests that would benefit
greatly and would prefer probably not to be attorneys at all
unless they were defense side.
Unfortunately, the Constitution Subcommittee has dealt too
much on enriching the rich and attacking the plaintiffs' bar,
rather than doing what we should be doing, respecting and
advocating for the Constitution.
Just this week, nearly 200 Members of Congress filed a
legal action, which we have to resort to do for this
subcommittee and our full committee have not taken up any
attacks on the Constitution, such as the Emoluments Clause,
Article I, section 9: And no foreign power, no king, no prince,
no foreign state, shall give a gift, emolument of any kind, to
somebody serving under the United States without the consent of
Congress.
And we know that the current President has taken hundreds
of thousands of dollars from the Saudi Government at his hotel
here, and in leases at Trump Tower from the Saudis and the
Chinese, and gosh knows what else, and never asked for the
consent of Congress.
John Kennedy was offered an honorary citizenship by his
native land, or ancestors' native land, Ireland, and he asked
counsel could he accept an honorary citizenship, was that an
emolument. It was deemed so, and he didn't accept it. But
there's the difference. And many Presidents over the years have
asked for and then been turned down, and some even just small
items. But, no, we're dealing with attacking the plaintiffs'
bar once again.
And last week we had the majority complain about government
regulation of business and businesses' ability to communicate
with the public, somewhat robocall advocacy, if you can believe
we'd have robocall advocacy, maybe one of the most hated forms
of communication that has been created, because attorneys were
finding illegalities by robo companies in calling, and calling,
and calling, and pestering people, and bothering people. So we
now look to reduce that more.
Make no mistake, this hearing may be framed as one of
concern by healthcare 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. It's consistent,
though, with the healthcare bill that this majority has given
the country, which is not a healthcare bill and which President
Obama has correctly said is more about tax breaks for the rich
and less about healthcare.
It's clear why some would want to impose greater
restrictions on the ability of attorneys to communicate with
the public about the availability of legal services. But they
would face no obstacles in doing it. Ironically, the First
Amendment, which we should be concerned about as the
Constitution Committee, and we should be protecting the First
Amendment. And advertising is constitutionally protected free
speech.
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.
So far, there's been little evidence to determinate that
attorney drug injury advertisements are false or misleading
under current law. Therefore, attempts to restrict or further
regulate these advertisements is certainly constitutionally
suspect at best.
The subcommittee is once again intruding on State
sovereignty--often been the mantra of the majority side--in the
name of so-called tort reform. Regulation of lawyers has
traditionally fallen within the authority of State supreme
courts or State bars or States in general.
Surely, the Federal legislature has better use of its time
than to try to supplant State bar councils, ABA, on matters
traditionally left to State administration or to attempt to
intimidate them to do some of its bidding. But we have done
that on--are doing that on gun laws, taking that away from the
province of the States when it suits the political convenience
of that side.
It is a bit rich to suggest that we should seek to limit
attorney advertising in the name of protecting consumers and
public health given the enormous amounts that drug companies
spend to influence consumer choice. Lawyer drug injury
advertisements serve the vital function of educating the public
about the dangers of certain medications and the availability
of legal services for those who are injured.
Yet, I note that while $114 million may have been spent on
attorney drug injury advertising in the year ending in 2016,
that pales--or fiscal year 2016--that pales in comparison to
the estimated $6.4 billion spent by drug companies on
advertising in 2016 alone, 114 million by attorneys, 6.4
billion by drug companies.
That's the real threat to consumers, is drug advertising,
getting people to want drugs and go to their doctors and say,
like Huey Lewis and the News, I need a new drug.
We shouldn't try to manipulate patient choices about what
medications they should be taking. Our broadcast, print, and
online media are full of pharmaceutical ads that it's
impossible to escape ads for medication that address everything
from erectile dysfunction and a 4-hour problem, to
constipation, at any hour of the day, even when children may be
watching. Those are areas more important to be looked at and
screened than drug advertising.
Decisions about whether someone should take a particular
medication, including the balancing of risk and benefits of
doing so, should be left to the patient in consultation with a
healthcare professional. They should not be influenced by
advertisements and the insatiable greed of drug companies
telling you, when you're in the moment, use our drug.
Truthful and constitutionally protected lawyer advertising
performs an important societal function in informing people
injured by drugs of the availability of legal services and
legal recourse. And where ads are actually false or misleading,
State bars are already equipped to take disciplinary action.
Congressmen and Congresswomen should just stay out of the way
and protect the First Amendment.
I yield back the balance of my time.
Mr. King. I thank the gentleman from Tennessee for his
opening statement.
I now recognize the chairman of the full committee, Mr.
Goodlatte of Virginia, for his opening statement.
Mr. Goodlatte.
Chairman Goodlatte. Thank you, Mr. Chairman.
On March 7, 2017, this committee sent a series of letters
regarding the topic of today's hearing to the American Bar
Association, 51 State bars, including the District of Columbia,
and two companies that aggregate plaintiffs for law firms.
Based on the responses that we have received so far from State
bars, it appears that there are few, if any, reported
complaints of lawyer misconduct regarding these commercials.
The lack of complaints, however, does not diminish the fact
that severe injury and death resulting from these commercials
are being reported to the Food and Drug Administration.
I would like to read from a portion of a statement
submitted for today's hearing from Dr. Frank Peacock of
Houston, Texas, who reported one such case.
He states: ``My patient, being 66 years old, female, with a
history of high blood pressure and diabetes, has a 4.8 percent
risk of having a stroke within the next year that would leave
her debilitated, unable to speak, wearing diapers in a nursing
home for the rest of her markedly shortened life versus taking
a pill every day with a risk of a fatal bleed from
anticoagulation of 0.0009 per year.
``To summarize, this patient had a 4.8 annual stroke risk
versus 0.0009 annual fatal bleeding risk. In medicine, we call
this a no-brainer and pick the lower of the risks.
``So I went to the patient's bedside to have what I thought
would be a relatively straightforward conversation. Usually,
this is a 5-minute exchange about what atrial fibrillation is
and what would be the recommended treatment. I answer some of
the questions, write a prescription, move on to the next
patient. That is not how it went.
I went to the bedside and told my patient that her tests
showed she had atrial fibrillation, but instead of her asking
me the expected question of, `What is atrial fibrillation?' She
said: `I know.'
``So if she had atrial fibrillation, the obvious next
question for me was, `What anticoagulant are you taking?' She
couldn't answer me as she broke down in tears.
``When she could talk, she related a story that made me so
angry that it motivated me to write this testimony today.
Wednesday, 4 days before coming to my ER, she had felt tired,
and weak, and had a fluttering feeling in her chest. She went
to her physician, who did an electrocardiogram and diagnosed
atrial fibrillation.
``He found the same results as I had, that a controlled
heart rate in a patient with a very high risk of having a
massive debilitating stroke. He spent 30 minutes teaching her
about atrial fibrillation, the risks, the benefits, the
treatment options, answered her questions, and then gave her a
prescription for rivaroxaban and discharged her home.
``On Wednesday afternoon, my patient filled the
prescription, went home, and took rivaroxaban. All was well
until Thursday evening, which, while watching television, she
saw the first 1-800-BAD-DRUG commercial that implied that
rivaroxaban was a dangerous drug.
``Having already taken it as instructed, with dinner, she
did not know what to do. She called her doctor but got an
answering service. She called the lawyer firm who was glad to
take her information but offered no advice. She did not sleep
that night.
``Friday came and she again called her doctor, but he
didn't have an appointment available until the following week.
She called the 1-800-BAD-DRUG ad number again but got no
instructions. What to do? Petrified with fear, she did not take
her anticoagulant that night.
``On Saturday morning, in my ER, I spent an hour talking
with this patient. This was an extremely educated, intelligent
woman who absolutely felt abused by our system, her physician
of many years prescribing a drug to save her life, and lawyers
coming into her house, by way of her television, to destroy the
doctor-patient relationship, and prompt her to engage in
behavior that could be fatal.
``My patient left my ER about midday. She took her
rivaroxaban before she left. Nobody will know what would have
happened had she waited to take her anticoagulant. Would she be
dead from a massive stroke or in a nursing home at this very
minute? What if it had been a different patient that just
listened to the TV and didn't come to my ER?''
Dr. Peacock's statement shows that these attorney
advertisements are having a real-world impact. Not only do they
create a barrier between doctors and patients, but they are
endangering these patients' lives.
I want to thank our witnesses for appearing today, and I
look forward to your testimony.
Mr. King. I thank the chairman of the full committee for
his opening statement.
And the chair now recognizes the full Judiciary Committee
ranking member, Mr. Conyers of Michigan, for his opening
statement.
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
Top of the morning, witnesses, for coming.
My colleagues, without doubt, most prescription drugs save
lives. Yet, it's also a fact that some result in injury and
death. Even properly prescribed medications cause, on average,
almost 2 million hospitalizations every year. Worse yet,
128,000 people die from these medications annually, making
prescription drugs the fourth-leading cause of death in the
United States of America.
These statistics prove that many Americans are injured as a
result of taking even Food and Drug Administration-approved
medications. Accordingly, attorney advertisements that
truthfully inform consumers of the danger of such medications,
as well as the availability of legal services for those who
have been injured by such drugs, perform invaluable educational
function for our society.
Nevertheless, there are those who claim that these
advertisements cause some consumers to stop taking their
medications and argue that they must be more aggressively
regulated. But before we take any such measures, we must keep a
few points in mind.
To begin with, truthful and non-misleading attorney
advertising is protected under the First Amendment in the
Constitution. It's well-settled law that the Constitution
protects commercial speech, including attorney advertising.
Only where there is a substantial government interest may
regulation on attorney advertising be upheld.
Those complaining about attorney drug advertisements done
the contend that such advertisements are false or misleading
under current law. In light of this, proposals to limit or
restrict attorney advertising may be unconstitutional.
In addition, even if attorney drug injury advertisements
could be considered false or misleading, there are already
mechanisms to deal with the problem. Every single State has
rules of professional conduct for lawyers that prohibit false
or misleading advertising; and every State has a process by
which consumers may complain about attorney conduct should they
come across an offending advertisement.
Ultimately, the onus is on physicians and other medical
professions to be proactive in advising their patients about
both the benefits and risks of medications. That burden should
not be shifted to attorney advertisements that truthfully
highlight the risk of those medications.
And, finally, we must view this hearing in the context of
other efforts to limit or even deny access to justice for those
harmed by defective medical products.
I just must note the hypocrisy of seeking to restrict
advertising in the name of promoting public health and patient
safety when the House will consider medical malpractice
legislation next week. That bill has unjustifiably brought
legal protection to healthcare providers, including complete
legal immunity for such providers in any product liability
lawsuit concerning the provision of drugs or medical devices.
Such protections for healthcare providers will deny injured
patients the ability to be made whole.
Further regulation of attorney drug injury advertisements,
combined with enactment of the medical malpractice bill, would
mean that consumers could potentially be denied full
information about their legal rights and access to legal
services concerning defective medications on the front end, and
then denied their day in court on the back end. Public health,
consumer welfare, and the interests of justice would not be
served by such an outcome.
So I welcome the witnesses and look forward to their
testimony.
And I thank the chairman.
Mr. King. I thank the ranking member from Michigan for his
statement.
And, without objection, other members' opening statements
will be made part of the record.
Before I introduce the witnesses, I ask unanimous consent
to introduce into the record 13 documents that we've received
from various groups and individuals interested in today's
hearing. And without objection, so ordered.
[The information follows:]
Letters introduced by Mr. King of Iowa. This material is
available at the Committee and can be accessed on the committee
repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/
HHRG-115-JU10-20170623-SD004.pdf
http://docs.house.gov/meetings/JU/JU10/20170623/106162/
HHRG-115-JU10-20170623-SD005.pdf.
Mr. King. And now I'd like to introduce the witnesses.
Our first witness is Dr. Ilana Kutinsky. She's the director
of atrial fibrillation services at William Beaumont Hospital.
The second witness is Dr. Shawn H. Fleming. And Dr. Fleming
is a vascular surgeon for Novant Health Vascular Specialists.
Our third witness is Linda Shely, who is a partner at the
Shely Firm.
And our fourth witness is Elizabeth Tippett, an assistant
professor at the University of Oregon School of Law.
Each of the witnesses' written statements will be entered
into the record in its entirety. I ask the witnesses to
summarize their testimony in 5 minutes or less. And to help you
stay within that time, there's a timing light in front of you.
It turns to green when you start to speak. It turns to yellow
at the end of 4 minutes. And in 60 seconds we'd ask you to wrap
up your testimony in a cogent way, if you could possibly.
Before I recognize the witnesses, it is the tradition of
the subcommittee that the witnesses be sworn in. So I'd ask if
you'd please stand to be sworn in.
Raise your right hand.
Do you swear that the testimony that you're about to give
before this committee is the truth, the whole truth, and
nothing but the truth, so help you God?
Thank you. You may be seated.
Let the record reflect that all the witnesses have
responded in the affirmative.
And I now recognize our first witness, Dr. Kutinsky.
Please proceed shortly after you turn on your microphone,
please, Dr. Kutinsky.
Dr. Kutinsky. Okay.
Mr. King. You are recognized.
TESTIMONY OF DR. ILANA KUTINSKY MD, DIRECTOR OF ATRIAL
FIBRILLATION SERVICES, WILLIAM BEAUMONT HOSPITAL TROY; DR.
SHAWN H. FLEMING MD, VASCULAR SURGEON, NOVANT HEALTH VASCULAR
SPECIALISTS; LYNDA C. SHELY, PARTNER, THE SHELY FIRM; AND
ELIZABETH TIPPETT, ASSISTANT PROFESSOR, UNIVERSITY OF OREGON
SCHOOL OF LAW
TESTIMONY OF ILANA KUTINSKY
Dr. Kutinsky. Chairman King, Ranking Member Cohen, and
members of the subcommittee, my name is Dr. Ilana Kutinsky. I
am a cardiac electrophysiologist who has practiced medicine for
nearly 2 decades. My goal today is to explain why attorney
advertising related to medical treatment should be required to
represent a transparent, fair, and balanced view of medical
issues and should contain a clear disclaimer that the ad is not
presented by a medical professional.
I am here to offer the perspective of a concerned doctor. I
was not paid to be here by a legal or political organization,
and I will not receive a financial benefit of any kind.
The facts that I share with you do not come from a survey
or a think tank. My testimony is based on the personal
experience of a doctor who has witnessed the harm caused by
careless and unregulated legal advertising. I have,
unfortunately, watched my own patients refuse and discontinue
medical treatments and prescriptions because they were
frightened by legal advertising. This is a sad phenomenon that
I see on a regular basis.
The misrepresentation of facts made in mass tort ads causes
fear in patients and can lead to treatment noncompliance.
Irresponsible attorney advertising undermines the patient-
physician relationship and completely disregards evidence-based
medical based practices and recommendations from the FDA.
To offer an idea of what I have seen, I will describe an
incident involving an elderly patient of mine who was diagnosed
with atrial fibrillation. I have many examples like this, but
this is just one.
To reduce her likelihood of a stroke, I recommend that she
begin a regimen of anticoagulation medicine, commonly referred
to as a blood thinner. All medicines have side effects, and
it's the job of the physician to counsel patients about the
side effects and why they are outweighed by the benefits of the
medicine.
This particular elderly patient was resistant to
anticoagulation because of the potential bleeding effects. But
after several office visits involving long discussions and one-
on-one education I built a strong enough relationship with the
patient that she agreed and she understood that the risk of her
stroke was high and that the benefit of treatment with an
anticoagulation agent significantly outweighed her bleeding
risk.
She agreed to take the medicine. She did not want to have a
stroke and lose her independence. Then, 3 years later, she
presented to the hospital with a massive stroke. I was
confused, and I spoke with her family. I was concerned that my
treatment failed her.
They informed me that 2 weeks prior to her admission she
had received a flyer in the mail from an attorney warning her
that her anticoagulant medicine could cause massive internal
bleeding and death. She didn't want to die, so she stopped her
medicine. She had planned to discuss her decision with me at
her next appointment.
Unfortunately, by then, it was too late. She was unable to
communicate with me when I saw her at the hospital and
subsequently fell into a coma and died.
She was under my care for nearly 8 years. After finally
convincing her to go on anticoagulation so she would be
protected from a stroke, she stopped the medicine after
receiving a flyer from a solicitous attorney, who likely has no
medical background.
This is just one example of something that I experience on
a constant basis. It may seem implausible that a person would
disregard the sound advice of a trusted physician based on a
faceless advertisement from a personal injury attorney, but it
is true.
Atrial fibrillation is the most common arrhythmia in the
United States. There are currently over 5 million Americans
with atrial fibrillation, and by 2030 that number will be over
12 million.
I know that patients with atrial fibrillation have a high
morbidity and mortality that is directly related to
thromboembolism. Leading medical societies, as well as the FDA,
recommended countering this risk by initiating therapy with
anticoagulant. That is the standard of care.
As a physician, I understand and discuss this with my
patients, that the anticoagulants hold some risk of bleeding,
in reality a very low risk, but that those risks are
substantially outweighed by the benefits of stroke prevention.
I counsel patients to take these medicines based on decades of
medical education and treatment of heart patients. And because
lawyers are held in high esteem, they can eradicate sound
medical advice with a single advertisement, despite no medical
training.
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. They are not confident.
They are easily scared into discontinuing a medicine based on a
well-crafted advertisement.
I am not a lawyer, so I am not here to argue whether
regulation of lawyer advertising infringes on freedom of speech
or whether advertising is sufficiently regulated by the State
bar association. I can only communicate the actual events that
I have witnessed on a regular basis involving real people who
disregard sound, medical-based advice based on misleading legal
advice--advertisements.
And while I'm not a lawyer, I do understand that all
constitutional rights are subject to limits, including the
right to freedom of speech. Certainly, freedom of speech does
not allow anyone, including lawyers, to make a
misrepresentation or false and misleading ads at the expense of
the American public.
In closing, I ask the committee to consider the following
key issues.
First, attorney advertisements are not currently required
to present a fair and balanced view. They do not have a
disclaimer stating that they have no medical background.
Second, because of this lack of balance, advertisements
have the potential to scare patients into stopping important
therapy. These advertisements undermine the physician-patient
relationship, instilling unfounded doubt and mistrust.
And, finally, these advertisements undermine current
evidence-based medical practice and standard of care. They are
directly advertising against medications determined by the FDA
to be safe and effective without any communication as to the
risk of abruptly stopping these treatments.
I urge the committee to ensure that all attorney
advertising related to medical treatments represent a fair and
balanced view of the medical issues and hold a clear disclaimer
that the ad is not presented by a medical professional.
I thank the committee for its attention to this critical
issue and for allowing me the opportunity to share my
experience.
Mr. King. Thank you, Dr. Kutinsky.
And now the Chair will recognize Dr. Fleming for your
testimony.
Dr. Fleming.
TESTIMONY OF SHAWN H. FLEMING
Dr. Fleming. Chairman King, Ranking Member Cohen, and
members of the subcommittee, I thank you for the opportunity to
be here. It's an honor.
My name is Shawn Fleming. I have the privilege of
practicing as a board certified vascular surgeon in Winston-
Salem, North Carolina. As part of my duties within the scope of
my practice, I'm often asked to determine the need for
initiation of anticoagulation, as well as prescribing regimens
and determining risk of anticoagulation around the time of
surgery. I'm also required, on occasion, to perform emergency
surgery for people who are bleeding to death and perform
emergency surgery on people who have suffered clots in
different areas.
During the course of my training, Warfarin has always been
the standard oral anticoagulant that was used for many years.
Although it is cheap, it is problematic in that it requires
constant monitoring and dose adjustments.
The introduction of this newer class of anticoagulants
several years ago certainly has simplified the management of
patients at risk for blood clots. As with Warfarin, these newer
medications do carry a small risk of bleeding that must be
weighed against the benefits they provide to the patient. This
is not a new phenomenon, and it's one that all prescribers take
into account when they're considering the risk-and-benefit
analysis for each patient.
Several years ago I became aware of these legal
advertisements targeting these medications specifically when I
began noticing regular, frequent, and strong resistance from
patients that were prescribed these medications. When I
inquired about the source of their resistance, I was frequently
told about the commercial and the fears they have of dying from
the drug. Not since I began training in the year 2000 have I
seen patients so regularly and frequently fear recommended
treatment from a medical professional.
Since these commercials first appeared, I've spent
countless time in the clinic trying to convince patients of
their safety. Not long ago, I encountered a patient in my
surgical practice who was simultaneously under the care of
another physician in the healthcare system for an unrelated
medical condition, a pulmonary embolus. This is a blood clot
that goes to the lungs and is life threatening. You may recall
CNN reporter David Bloom died of this condition while covering
the war in Iraq.
I noted that he had been recently diagnosed with this
problem and was asked to be placed on Xarelto. When reviewing
his medications, he told me that he was not taking the
medication, nor would he ever, because of a commercial he had
seen on television. I did spend some time trying to convince
him otherwise, but he refused. Several weeks later, we got a
note that he had died of a recurrent pulmonary embolus.
While this is the only case that I have been directly
involved in that has led to death, I certainly have spent
countless hours, as I've told you, trying to convince patients
to take their prescribed regimen.
It's my opinion that the tone and content of these
advertisements imply a qualitative judgment about these
medications that are just not true. When you say call 1-800-
BAD-DRUG, that clearly implies it's a bad drug, which runs
counter to current medical evidence and also 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. If they don't take the
medications, they could die, and are more likely to die, from a
thrombotic event. But that is not ever mentioned in these
commercials.
While I certainly don't presume to know the intention of
the commercials, based on my direct interaction with numerous
patients, I can testify with confidence that patients perceive
these advertisements as medical advice, and they are often in
direct contradiction to that of their physicians.
This leads to conflict in the doctor-patient relationship,
not just as it pertains to this drug, but if they believe that
I've prescribed them a drug that may kill them, then 6 months
later when I need to give them a different drug, they're
resistant. When I tell them that I need to put them to sleep
and do surgery on them, they're resistant, because they no
longer trust me.
Ironically, when compared to the historical standard oral
anticoagulant, Warfarin, each of these new medications carry a
significantly lower risk of bleeding, yet I have seen no
commercials targeting the generic drug Warfarin.
It is unfortunate that patients are making these decisions
based on advertisements that I believe are not held to the same
standards as the medical profession. Multiple levels of
oversight and review led to the availability of these
anticoagulants, which ultimately have saved lives over the
course of my career.
In my professional opinion, the positive benefit of
anticoagulants is significant. My patients have benefited from
these therapies and are alive today as a result of
anticoagulation being part of their plan of care. As such,
creators of these commercials should be held to the same
standards as physicians and drug companies.
Again, I appreciate the opportunity to speak with you
today. Thank you very much.
Mr. King. Thank you, Dr. Fleming.
And the Chair now recognizes Ms. Shely for your testimony.
Ms. Shely.
TESTIMONY OF LYNDA C. SHELY
Ms. Shely. Thank you, Mr. Chairman, Ranking Member Cohen,
Ranking Member Conyers, and members of the subcommittee. Thank
you for inviting me today to talk to you about lawyer
advertising and regulation of lawyer advertising.
I'm speaking today in my individual capacity. I am not
representing any organizations, even though I'm a member of
three State bars: Arizona, the District of Columbia, and
Pennsylvania. I'm also a member of the American Bar Association
and the immediate past President of the Association of
Professional Responsibility Lawyers.
For the past 24 years I have practiced exclusively in
lawyer ethics, advising over 1,500 law firms around the country
on legal ethics matters. I did want to note for the record, I
don't advise any of the firms that we'll be discussing today
regarding any of these commercials. So I have not been paid for
any of my testimony. I am here on my own nickel.
In regulating lawyer advertising, I know many of you on the
subcommittee are lawyers, but I thought it useful just to
summarize what the current status is of the regulation of
lawyer advertising nationally.
As you all know, lawyers are regulated, in most
jurisdictions, by the highest court in each State. We're not
self-regulated. We are regulated by the judiciary. And as
Ranking Member Cohen indicated in his opening remarks, we are
regulated by the Rules of Professional Conduct, and those rules
prohibit false and misleading advertising by lawyers. Any
communication by a lawyer is prohibited if it's false and
misleading.
In fact, we are so highly regulated even my pens are
regulated. I have to have my name and contact information on my
pens, because that's considered a form of lawyer advertising.
So in the current system that we have of State regulation
of lawyer advertising, what happens is if the State regulators,
whether it be a bar association or a committee of the highest
judicial court, receives a complaint about a lawyer
advertisement, they investigate. They determine whether there
is actually something in the ad that is false and misleading.
So what they do when they receive that ad is investigate,
and then the lawyer who is responsible for that advertisement
may be disciplined. They could be disciplined for violating the
rules of professional conduct if the ad is deemed to be false
and misleading. That discipline may be changing the ad to add a
disclaimer, if appropriate, to clarify the statements, or they
could be reprimanded or even suspended if there's found to be a
violation.
And as Representative Conyers mentioned in his opening
remarks, and Ranking Member Cohen, the First Amendment protects
those ads. And next week we actually celebrate the 40th
anniversary of Bates v. the State Bar of Arizona, which was the
seminal Supreme Court case that reminded everybody that
commercial speech, including lawyer ads, is protected by the
First Amendment.
So when that information is protected by the First
Amendment, as has been indicated already in the opening
remarks, you have limited restrictions on commercial speech.
Not only is it protected by the First Amendment, but you also
are aware--and I believe my remarks indicate--that the Federal
Trade Commission over the years has sent letters to various
State bar regulators on the general topic of lawyer advertising
indicating that overly broad restrictions of factually accurate
commercial speech actually is anticompetitive and may have the
detrimental effect of increasing the prices charged to
consumers.
I have to tell you that in the 24 years that I've been
advising lawyers on legal ethics matters, including 10 years at
the State bar of Arizona, as the director of ethics, I've never
once heard a consumer complaining about an advertisement.
Actually, I've not seen any doctors submit advertisements to
the State bar complaining.
And you all know that everybody has standing to complain
about a lawyer ad. It does not have to be somebody who's
harmed. Anyone can submit to the State bar or your appropriate
regulatory authority a concern about a lawyer ad so that State
regulator can determine whether additional safeguards need to
be put in place.
Now, all of this information is anecdotal. The Association
of Professional Responsibility Lawyers conducted a survey in
2015, which I incorporate as part of my remarks, and that
survey of all State bar regulators confirmed that of the 34
responding jurisdictions of State lawyer advertising regulators
or State bar regulators, virtually all also confirmed consumers
don't complain about being confused about lawyer advertising.
And this is not a fact that consumers don't know that they
can complain, because consumers do complain, a lot, about other
types of lawyer conduct. They're not hesitant to complain if
they are concerned about the conduct. And I ask that this
committee simply submit any ads that you are concerned about to
the appropriate State regulators so that they can take
appropriate action, because the current system does work in
regulating against false and misleading advertising.
And I'm happy to answer any questions that the committee
may have. Thank you.
Mr. King. Thank you for your testimony, Ms. Shely.
And the Chair would now recognize Professor Tippett for her
testimony.
Professor Tippett.
TESTIMONY OF ELIZABETH TIPPETT
Ms. Tippett. Thank you, Chairman King, thank you, Ranking
Member Cohen and members of the subcommittee, for the
opportunity to testify today. My name is Elizabeth Tippett, and
I'm a faculty member at the University of Oregon School of Law.
It's an honor to be here today.
I want to preface my comments by saying that I'm a member
of the bar in New York and California and Oregon, and I have a
great deal of respect for mass tort lawyers and the public
interest that they serve.
At the same time, it's my strong belief that drug injury
advertising is an important issue of public health and consumer
protection.
I've shared in my written testimony the scientific evidence
we have to date on how these ads might be affecting the way
people make medical decisions. But, first, I wanted to share a
personal story with you.
The reason I'm interested in these ads is because of a
phone call I received from a family member several years ago,
and the family member told me that they were canceling a
surgery because of an attorney ad that they saw on television.
It was a drug injury ad.
And I had to explain to the family member that it was from
a lawyer, and this is a lawyer who's looking for clients, and
that's why they had that ad.
And I asked, ``Does your doctor think you should proceed
with the surgery?''
And the family member said, ``Yes.''
And so I said, ``Look, you know, at the end of the day,
you're going to have to decide whether you're going to believe
this lawyer over your own doctor.''
And the family member ultimately proceeded with the
surgery, but I wondered, you know, are there other families who
are affected by these ads too? And as lawyers, are we upholding
our responsibility to communicate this important information in
the most responsible possible way.
I'm also married to a doctor who treats cancer patients,
and I hear from his colleagues and other doctors in the
community about how these ads affect their practice and their
conversations with their patients. And when the American
Medical Association issues a statement saying that these ads
are important and we need to pay attention to them, we need to
take that seriously. As lawyers, we need to take that
seriously.
I want to be clear that it is not my position that drug
injury advertisements are inherently bad. I think informed
consumers are better than uninformed consumers. And when
individuals are harmed by a drug, they have a right to seek
counsel and to bring a claim against the drug companies.
But we cannot stick our heads in the sand and act as though
these ads are the same as an ad for soap or for candy bars.
They're important to the decisions of the people who see them,
not just people who are harmed by the drug, but also people who
might be taking the drug or eligible to take the drug in the
future. These advertisements almost always involve drugs that
are still on the market.
One of my studies looked at the content of these ads. Many
of these advertisements were transparent about the fact that
they were from a lawyer and that they were trying to find
people for a legal claim.
Some of them were not. Some of the ads look, essentially,
like a dystopian public service announcement and had language
like ``consumer alert'' and ``medical alert'' and ``warning,''
and then they described all the bad things that would happen to
you if you took a drug. And sometimes from these ads it was
difficult to tell that they were sponsored by a lawyer.
Here's the strange thing that I don't understand about
these ads. If you have been harmed by a drug, you don't need a
warning. You have already been harmed. Why, then, do these
drugs have such cautionary language about the dangers of the
drug?
I actually spoke with an advertising attorney about this
and asked why we see this language. And he explained to me that
these ads only have a few seconds to capture consumers'
attention and they do what it takes to try and identify someone
who has been harmed by a drug and who may not be able to
connect their injury with a drug they may have taken in the
past.
Essentially, what he was telling me is that the effect on
people's current medical decisions is a side effect of the
advertising. The point of the advertising is to help harmed
consumers, and it has a side effect on everybody else who is
watching it. I think we need to take these behavioral side
effects seriously, understand them better, in the same way that
we take seriously the medical side effects of prescription
drugs.
Now, as I explained in my testimony, the drug injury
advertising market is complex because the entities that sponsor
the advertising are different from the lawyers that litigate
these claims. And my written testimony includes a number of
suggestions on how we can make the advertising market more
transparent and provide better guidance to advertisers on best
practices.
And part of the solution may be to have an impartial rating
system for advertisers so that the lawyers who are litigating
these claims can vote with their dollars and choose their
referrals from advertisers that are the most ethical.
As attorneys, we have the privilege and duty of self-
regulation, and I don't think we have taken that duty seriously
enough. We need to invest more time and resources to
understanding and addressing this problem.
Thank you for the opportunity to testify today. I would be
happy to take any questions.
Mr. King. Thank you, Professor Tippett.
I thank all the witnesses for your testimony, and we'll now
proceed with the questions from the members of the panel. And
I'll recognize myself for 5 minutes.
Voice. We're voting now.
Mr. King. Yes, we are.
Voice. Five minutes left to vote.
Mr. King. I didn't see that. In that case, we will recess
and come back to this hearing. I didn't see that. But we're
voting on the floor. So this committee will now recess, and
we'll return shortly after we conclude our votes.
[Recess.]
Mr. King. The Subcommittee on the Constitution will come
back to order and resume our business.
At this point, the chair would ask unanimous consent to
introduce a document produced by Professor Benjamin Barton,
``Do Judges Systematically Favor the Interests of the Legal
Profession.'' Without objection, so ordered.
[The information follows:]
This material is available at the Committee and can be
accessed on the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/
HHRG-115-JU10-MState-K000362=20170623.pdf.
http://docs.house.gov/meetings/JU/JU10/20170623/106162/
HHRG-115-JU10-MState-K000362-20170623.pdf.
Mr. King. And I now recognize myself for 5 minutes in
questions, and let's see if I can pick myself up to where the
thought process was as I finished hearing the excellent
testimony of all of our witnesses.
And one of the things that came to mind for me when I'm
listening to the discussion about the ads that are affecting
people's decisions was the statement--I believe it was you, Dr.
Kutinsky, if I can find my note--which was one single ad can
eradicate professional advice.
And the frustration that was in your voice as well as in
your words that you build a long-term doctor-patient
relationship, and then that patient goes home, turns on the
television, it's all erased, and they decide to make a decision
that's directly against their best health interest because of
an ad.
And does that change as the patients get older?
Dr. Kutinsky. I was thinking about this, and I think as
patients age they get more frightened in general. They're
afraid of their health. And these are drugs that they didn't
want to take to begin with. Nobody really wants to be on a
blood thinner or any drugs, really. And so all they need is
like maybe a little nudge in that direction, and it gives them
almost like an excuse to stop taking their medicine.
But they're frightened and they don't know. And so, yeah, I
think that one advertisement--I mean, this was one
advertisement and I had known this lady for many--I mean, over
8 years when this happened.
Mr. King. The older people are, the more pharmaceuticals
they're likely to have prescribed to them, the higher their
anxiety goes as a function of age. Maybe not as a function of
the pharmaceuticals, but that's also possible, I would think.
Dr. Kutinsky. Yeah. I think that they just--as they age,
they get less confident in everything. They're on 10, 11
different medicines and they get confused. And they lack trust.
They can be preyed on very easily.
Mr. King. Do you ever watch political ads?
Dr. Kutinsky. Yes.
Mr. King. Do you ever think of a comparison between what
you describe here and political ads?
Dr. Kutinsky. Yes.
Mr. King. And sometimes the destiny of America turns on
something that might be a thread of truth and leave out a whole
ocean of information that's necessary to evaluate.
Dr. Kutinsky. Yeah. I mean, I think that if there is a fair
look at an issue--so if the ads say, there is a 0.5 percent
risk of massive bleeding, but there's a, you know, 70 percent
benefit of preventing a stroke, I mean that's a fair ad, right?
So if you bleed, you take that risk, that 0.5 percent risk.
And so when I describe it to a patient, that's what I do.
That's what these ads should do. I'm not saying that there
shouldn't be ads.
Mr. King. If you prescribe the wrong drug, are you liable?
Dr. Kutinsky. Of course.
Mr. King. And then your medical malpractice, professional
liability insurance is supposed to cover that. What's happened
to your premiums in the last 10 years?
Dr. Kutinsky. High. I mean, they're super high. They just
continue to go up.
Mr. King. They run in proportion with my health insurance
premium, probably.
Dr. Kutinsky. Probably, yes.
Mr. King. That's what I would think.
So I wanted to ask Professor Tippett, as you seem to
encompass a lot of the knowledge base necessary here to
understand this, that if doctors are liable when they prescribe
the wrong drug and then attorneys can advertise and spend
potentially millions of dollars to put out a thread of truth
and argue that it's under First Amendment protection, that the
thread of truth that counteracts 99.9 percent of what's
necessary, if doctors are liable, why aren't attorneys liable?
If the misinformation from attorneys brings about death or
injury and doctors are paying for their professional errors,
why aren't attorneys paying for theirs?
Ms. Tippett. So I guess--I don't know that I agree with the
position that these ads only have a thread of truth. I think
attorneys are pretty careful that their statements are
factually accurate. It's just the context in which they present
the information is misleading.
And that's my primary concern, is the context in which they
provide this medical information.
Mr. King. Well, sure. But if a doctor, in the context of
recognizing there's a tiny little percent of a bad reaction to
a drug, either prescribes a drug, understanding there's a tiny
percentage of a bad reaction, or fails to prescribe a drug
because of a tiny percentage of a negative reaction, that
doctor is liable under their malpractice. So why is there a
different standard for attorneys?
Ms. Tippett. So my understanding is attorneys might be
liable under a common law tort claim, but I would be happy to
provide you with a more complex answer on the record.
Mr. King. I would appreciate you introducing a more complex
answer on the record. I know this is a very complex issue.
And so I see that my time has expired. I'd yield back the
balance.
And I turn and recognize the smiling gentleman from
Maryland, Mr. Raskin, for his questions.
Mr. Raskin. Mr. Chairman, thank you very much.
And thank all of you for really excellent testimony.
Let's see. Ms. Shely, let me start with you, if I could. To
what extent is the problem that we're talking about just a
general cost of having the First Amendment at all? I mean,
assume that you've got a drug where 1 percent of the people end
up with some horrific side effect. Those people, they certainly
have a right to go into an interview on the Oprah Winfrey show
or to be on the news or take out an ad of their own, right?
They still have the right of free speech to talk about the
horrific effects on them, even if it's not giving people the
complete context that a doctor would. Would you agree to that?
Ms. Shely. Yes.
Mr. Raskin. And is there anything we can do about that
problem?
Ms. Shely. Well, thank you for the question. And we do have
a system to deal with this. We do have State regulators.
Mr. Raskin. Okay, for lawyers now.
Ms. Shely. For lawyers.
Mr. Raskin. Because lawyers are part of a regulated
profession.
Ms. Shely. Correct.
Mr. Raskin. And the Supreme Court has said that lawyers do
have a First Amendment right to engage in freedom of speech,
including commercial speech, but it cannot be false, deceptive,
or misleading, right?
Ms. Shely. Correct.
Mr. Raskin. Do you know of any cases where lawyers have put
out ads like this that focus just on the risks and prey on
people's anxieties or fear and they have then been brought up
on charges that they're engaged in false, deceptive, or
misleading speech?
Ms. Shely. I can't cite you to a specific instance,
because, as my testimony indicated, I'm not aware of anybody
complaining to----
Mr. Raskin. How about, Professor Tippett, are you aware of
cases like this, where there have actually been complaints to a
State bar or a State supreme court?
Ms. Tippett. My research suggests that I could not find any
evidence that any State bar has ever taken any action or this,
nor has the FDA, nor has the FTC, and that is problematic, from
my standpoint.
Mr. Raskin. But have there been like consumer complaints or
complaints from people who say they were engaged in the course
of therapy, they see, you know, a putatively terrifying ad,
then they cease treatment, then they end up being injured
because they cease treatment, then they make a report to the
Illinois State bar or the----
Ms. Tippett. I have not seen--I have not access to that
information, but it seems extremely unlikely that a consumer
would know to complain to the State bar when they see an
advertisement like this that influences their medical
decisions.
Mr. Raskin. Okay. So the chairman made an interesting point
about political ads. You know, I can run for office and I can
say, ``I'm going to build a wall and I guarantee you 100
percent Mexico is going to pay for it.'' And I win the election
and Mexico doesn't pay for it, and nobody has any cause of
action against me. I'm not kicked out of office. Nobody can go
for money damages or injunction or whatever.
To what extent is this just the cost of the First
Amendment? The prescription drug companies are going to put ads
out that emphasize the benefits of using the drug, and then in
100 miles an hour they will say, ``And there's 50 possible side
effects that we hope you're not going to hear in the next 3
seconds.'' And then the lawyers, they focus on the risks in
order to find, as you were suggesting, people who have already
been injured by it.
Isn't it just like with the political market, buyer beware?
We expect people to make informed choices and to try to work it
out themselves. I don't know if either of you has a thought on
that.
Ms. Tippett. I would be happy to answer that.
First of all, pharmaceutical advertising is heavily
regulated by the FDA, heavily regulated. These attorney ads are
not. They are only regulated by State bars, and in that vein
not enforced at all.
And so the comparison between pharmaceutical ads and
attorney ads I think is apt, and I think we should be as
thoughtful and nuanced and data-driven about attorney ads as we
are about Pharma ads.
Mr. Raskin. I'm with you, but who is ``we''? I mean
traditionally----
Ms. Tippett. Attorneys. The State bar.
Mr. Raskin. Traditionally, it's been the State bars and the
State supreme courts that regulate this problem. And as far as
I can tell, there have been no complaints and nobody's brought
any cases. And, you know, I get my lawyer magazines and I see
hundreds of cases of complaints against lawyers. Every week
lawyers are being complained about for this or that, not
calling their clients back, not giving them complete
information. So I'm just amazed that there's never been a case
like this.
Ms. Tippett. So my understanding is that most consumer-
related complaints are client-driven. And this is an unusual
situation, because it's not the clients who are injured.
They're not complaining about their lawyers stealing their fee.
And so because it's these nonclients who are affected,
that's why I think there's way fewer complaints than the public
health or consumer protection might suggest there should be.
Mr. Raskin. Okay.
Yes, if you want to comment.
Ms. Shely. Let me just clarify one issue with respect to
regulation of the lawyer advertising. I'm not aware of any
cases involving any of these ads, but I believe that's because
people have not complained to the State bars about any of these
ads. And all the information that we have from State
regulators, and that includes many of the responses that
Chairman Goodlatte received to his letter from State bars,
they're not receiving these complaints.
And consumers do complain about lawyers all the time. They
don't complain just about their lawyer; they complain about
every lawyer. And they do complain about people that they just
see in court. So it's not----
Mr. Raskin. Do they complain about advertising, about
lawyer advertising?
Ms. Shely. Consumers----
Mr. King. The gentleman's time has expired. The witness
will be able to answer the question.
Ms. Shely. I'm sorry?
Mr. Raskin. Mr. Chairman, forgive me. If I could just take
1 second to introduce into the record a letter of March 23,
2017, from the ABA in response to Chairman Goodlatte's
questions from Linda Klein.
Mr. King. Hearing no objection, so ordered.
[The information follows:]
Letter introduced by the Honorable Jamie Raskin of
Maryland. This material is available at the Committee and can
be accessed on the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170623/106162/
HHRG-115-JU10-20170623-SD003.pdf.
Mr. King. The Chair would now recognize the gentleman from
Michigan, Mr. Conyers, for his 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
I thank the witnesses.
Lynda Shely, would any of the attorney advertisements cited
by the witnesses or members here today violate the American Bar
Association's Model Rules, which, of course, prohibit false or
misleading advertising, or any other similar State rule which
you are familiar?
Ms. Shely. Thank you for the question.
And just to clarify for the record, the American Bar
Association Model Rules are exactly that. They don't regulate
anybody. They are simply models that the States then craft
their own State bar regulations after.
And not looking at every single ad, but at least at the ad
that the chairman showed at the beginning of the hearing, if a
lawyer's name and address are not present, that absolutely
would violate ABA Model Rule 7.2(c). You must have a lawyer's
name and address in all communications, again, including my
pens. That's a communication about a lawyer. That is regulated
by the Rules of Professional Conduct. And if that's not there,
then that bar that would have jurisdiction over that lawyer
could subject that lawyer to discipline.
Mr. Conyers. Does that happen much?
Ms. Shely. Bar associations will receive complaints about
lawyer advertising, and virtually all of those complaints are
from other lawyers. Consumers rarely ever complain about seeing
something on TV or on a billboard or in a print ad. It's always
other lawyers who complain.
When a bar association does receive a complaint, they will
go through the Rules of Professional Conduct adopted in that
jurisdiction, and they will either ask that the lawyer put
something clarifying in the ad if they think that it's
confusing or creates unjustified expectations, or they may even
discipline that lawyer through a reprimand, censure, or
suspension.
Mr. Conyers. Let me ask you this about the
constitutionality. The American Medical Association's recent
resolution recommended that attorney advertisements should be
required to include a warning that patients should not
discontinue their medications without first consulting their
doctor. Do you think that's constitutional?
Ms. Shely. An appropriate disclaimer in an ad, if the ad
otherwise would create an unjustified expectation, may be
appropriate, and that's going to be decided on a State-by-State
basis.
Mr. Conyers. Anybody else want to--yes, please.
Dr. Kutinsky. I think there's a difference with these ads.
Like so you said that people--that the patients aren't
complaining, there haven't been any complaints. The patients
don't actually know that the ads are false. That's part of the
problem.
So if an ad states that a drug can cause massive internal
bleeding and death, they don't--the patient doesn't know that's
right or wrong. The patient doesn't go and get the medical
literature and do a medical literature review. The physicians
know that that's wrong. The physicians are angry about it. But
the patient doesn't know that it's wrong. That's why it's
misleading.
The Pharma ads, you still require a visit with your
physician. You need a prescription. And so there's still a
physician-patient relationship. So who cares what the Pharma
ads say, you still need a prescription to get the drug. You
still have to go through a physician.
The lawyer ads don't necessarily make you talk to your
physician to stop your drug. They're just out there saying,
this is a side effect, a big side effect, warning.
Mr. Conyers. Anybody else want to chime in? Yes, sir.
Dr. Fleming. Yes, sir. To the earlier point, I would say
about the First Amendment, if I walk into a patient's room and
give them bad advice and they have a bad outcome, I can't claim
the First Amendment and my ability to say whatever I want as
defense.
And it's my belief that these commercials enter into the
territory of making medical--giving medical advice. And when
you're giving medical advice, I believe you have to be held
accountable for the outcomes, because I certainly am.
Mr. Conyers. Very good.
Let me ask this question to Ms. Shely. Professor Tippett
suggests that State bars consider more deregulation of attorney
referral fees, clearly allowing advertisers to receive referral
fees. What do you think of that?
Ms. Shely. The ABA Model Rules require that if a lawyer
whose advertising is not going to be the one taking the case,
the referral has to be disclosed. So if an ad doesn't include
that disclosure, if you want to run an advertisement for a bad
drug but you're not actually the lawyer who's going to handle
that case, you are supposed to disclose under the ABA Model
Rules how you're referring that.
The referral fee is not the driving force there as much as
you have to identify who is actually going to handle that case.
So that would be the disclosure that would be appropriate for
these ads.
Mr. Conyers. Any other comments?
Thank you, Mr. Chairman. I yield back.
Mr. King. I thank the ranking member from Michigan.
The chair now recognizes the gentleman from New York for
his 5 minutes of questions.
Mr. Nadler. Thank you.
I have a couple of questions and comments.
First, let me just say, Dr. Fleming commented a moment ago,
there is a much heavier burden for prior restraint than there
is for punishment afterwards. In other words, it's a much
heavier constitutional lift to say, ``You may not say that,''
than there is for saying, ``You shouldn't have said that and,
therefore, we will penalize you because some bad outcome
occurred.'' It's a bigger First Amendment problem to prohibit
speech in advance.
Professor Tippett, you write in your testimony about the
state of scientific literature regarding people--what we're
talking about, regarding people stopping their medication
because of an ad. And you say, ``I am not aware of any large-
scale observational research that establishes a causal link
between drug injury advertising and patient decisions. It is
possible that attorney advertising has no aggregate effect on
whether consumers decide to discontinue a prescribed
medication. Brian Chen and I conducted a study of Medicare
prescription reimbursement data over a 1-year period and did
not find any evidence that increased drug injury advertising
volume was associated with a decrease in prescription rates.''
You then go on to cite some other studies which are
suggestive, but not at all dispositive.
You are here testifying, as are some fellow witnesses, that
this is a serious problem that we should deal with, and yet
you're saying that you're not aware of any large-scale
observational research that establishes this causal link. Until
we have such large-scale observational research, why should we
act?
Ms. Tippett. Thank you for asking about that.
It's really hard to establish a causal link as a matter of
observation. As a matter of science, it's really hard. And
because the research is at such an early stage, I wouldn't be
surprised that we haven't yet found a causal link. But that
doesn't mean there isn't one. For example, Brian Chen, our
study only involved 1 year.
Mr. Nadler. Hold on. I get that point. But we should act
and limit these ads on the possibility that there's a causal
link?
Ms. Tippett. Okay. So first of all, my recommendations, as
you know from my written testimony, don't say we should limit
the ads. But second, we do have other evidence. I mean, large
observational studies are not the only way to prove things,
through scientific experiments.
So we have evidence from the Federal adverse event
database, admittedly sponsored by Janssen Pharmaceuticals, that
found that 31 patients did base their medical decisions on the
attorney advertising and 2 of them died. I mean, in my mind----
Mr. Nadler. Thirty-one out of how many?
Ms. Tippett. I don't know, because the Federal adverse
event database is only looking at the people who reported
adverse events. But, in my mind, if anybody is dying, we should
be taking that seriously as a profession.
Mr. Nadler. And what is your recommendation?
Ms. Tippett. My recommendation is that we need to study
this further so that we actually know which content is
misleading, so that we can provide good advice to the
advertisers, and then make possible--make more information
available to the attorneys receiving the referral so they can
choose ethical advertisers over unethical advertisers, and see
if we can use informational and market-based forces to improve
the quality of advertising overall. I don't think that's
unreasonable.
Mr. Nadler. Okay. Let me ask you a different question.
As large or perhaps much larger than advertising that says,
``If you've been injured by, you know, such and such a drug,
call us, we may get you a fortune,'' is advertising that says,
``If you have restless leg syndrome, which we just invented,
call your doctor and tell him to prescribe whatchamacallit.''
Is that harmful? Should we regulate that?
Ms. Tippett. Are you asking me?
Mr. Nadler. Yes.
Ms. Tippett. I think that's an excellent question, and I
would love to provide an answer on the record.
Mr. Nadler. Go ahead.
Ms. Tippett. In written----
Mr. Nadler. Oh.
Ms. Tippett [continuing]. In writing on the record, because
I want to look into it. Because those ads are called disease
mongering, and they occupy a special little pocket of
regulation.
Mr. Nadler. Well, not necessarily disease mongering. Let's
say it's not restless leg syndrome, it's some legitimate real
disease, and they tell you, ``Call your doctor and ask him to
prescribe such and such a drug,'' which may or may not be----
Ms. Tippett. Oh, well, those ads are already regulated by
the FDA, so I'm not as worried about them, because there's
substantial oversight from the FDA.
Mr. Nadler. Ms. Shely, would you comment on that?
Ms. Shely. Well, there's also substantial regulation of
lawyer advertising. If people have a concern, they need to
bring it to the State bars so that they can review the ads.
Because the content in the ads varies so drastically, we don't
have just one bright line rule that says, ``Well, you can say
this and you can't say this.''
In addition to the First Amendment issues of prior
restraints and limiting what restrictions we have on commercial
speech, there are also significant anticompetitive effects to
adding additional regulation. And you want consumers to be
aware of what actual risks are.
And so the only thing that I would disagree with some of
the testimony that the ads are false, I don't think they're
false, because they're factually accurate. Whether they create
an unjustified expectation is something that each State bar
needs to look at. And whether an additional disclaimer in those
ads will even help is questionable.
Mr. Nadler. My time has expired. I thank you.
Mr. King. The gentleman returns his time.
This concludes today's hearing. I thank all the witnesses
for attending and for your testimony.
All members will have 5 legislative days to submit
additional written questions for the witnesses or additional
materials for the record.
This hearing is now adjourned.
[Whereupon, at 11:37 a.m., the subcommittee was adjourned.]
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