The 3-car collision of ethics, healthcare and advertising | News, Sports, Jobs


Lawyer advertising has always been a big topic in my law firm. Ever since the US Supreme Court said it was a violation of the First Amendment to prevent attorneys from advertising, the faces and names of many attorneys have been broadcast over the airwaves and cable. Some of them are even beamed down from satellites due to the advent of satellite dishes.

Most restrictions on lawyer advertising have fallen by the wayside. The professional code should prevent lawyers from saying they are the “Best,” suggesting they do business in places they aren’t and otherwise making promises that would shock even the most aggressive used car salesman.

However, I’ve also noticed an amazing number of commercials for doctors and hospitals. So one day I decided to count the number of billboards between Williamsport, Pennsylvania and Philadelphia that were dedicated to doctors as opposed to attorney advertisements. I was surprised that hospitals and doctors occupy four times as many billboards as lawyers. As I got closer to the big city, the ratio was even higher.

Some of the hospital billboards come close to promising cures for all types of cancer, from prostate to breast to pancreatic cancer. Exploiting public fears is nothing new in advertising and has apparently become part of the medical approach as well.

Many newspapers have their own section “Health and Wellness.” These are hardly glorified ads. Many of the so-called articles, obviously written by PR people, even have disclaimers at the end. Every new drug and medical product that comes onto the market is heavily promoted not only to doctors but also to the general public.

Once upon a time there was immunity for medical device and pharmaceutical manufacturers based on an antiquated doctrine called “trained mediator” Rule. In other words, since medical device manufacturers and pharmaceutical companies only had contact with doctors, they could not be held responsible for promises they made to the public. However, all that has changed, but the law is far behind. Promises are constantly being made to the public about the latest medicines and medical devices. I noticed that several mornings while I was shaving in the bathroom and preparing for a long day at work, at least two ads that were paid for by Pfizer were running.

Now that we’ve all become duly skeptical thanks to Covid-19, it’s time to look at the impact and effectiveness of all these ads that are being projected to the public. The public is encouraged to purchase medical devices, drugs, treatments and hospital supplies they are unaware of. As these sales pitches become more refined and aggressive, we have less and less information. Pennsylvania is still one of the states that doesn’t allow the public to know the background to legal disputes against doctors, pharmaceutical and medical device companies. Virtually all settlements are “sealed” and many judges go along silently.

Peer review allows hospitals to assess and analyze the wrongdoing of their doctors, and then they try to keep it a secret from their patients. When we passed the Mcare Act in 2002, the Patient Safety Agency had to submit an annual report to the legislature. This report includes, by region only, the number of incident and serious incident reports occurring in hospitals. The Patient Safety Agency does get this information from hospitals, but the law only requires a report by region. When was the last time you saw or read this supposedly publicly available information, even by region? The answer is never. How often do reporters actually attend the public portion of Patient Safety Board meetings? I’ve never seen one in the 15 years I’ve served as Senate Commissioner for the Patient Safety Administration.

Soliciting lawyers can be a nuisance but rarely results in a risk to human life. However, dangerous and unsafe cures, procedures, drugs and medical device accessories are offered to the public, sometimes with little or no good science behind them. The Food and Drug Administration is supposed to pass medical devices, but some classes of devices receive clearance for sale but no evaluation of their safety or usefulness.

The Food and Drug Administration is essentially a revolving door when it comes to medical devices and pharmaceuticals. The same people who work in this industry were often employed by the regulars and vice versa.

One of the newest toys for the medical profession is robotic surgery. In robotic surgery, it is not the doctor who puts his hands on the patient, but the robot, which is controlled by the doctor. A relative of mine showed me how to operate virtually on a computer he had in his basement; He might even teach his 14-year-old how to do it. “Anyone who could operate a computer could perform this operation,” he bragged about me. How much training are doctors getting for these new toys that cost fortunes and make hospitals big bucks? Undoubtedly, very good doctors take new technologies seriously and do their best to learn them. Finally, there is tremendous pressure on physicians to use procedures, devices, and drugs that they may know very little about.

What about vitamin supplements? Vitamin supplements used to be regulated, but thanks to an amendment by Senator Cotton, the FDA doesn’t regulate vitamin supplements. Rather, sellers can be prosecuted if they adulterate the product or lie about what’s in the vitamin supplement. That kind of thing happens, and just recently in Texas some bad guys ended up in jail for lying about what was in a product. However, no one verifies the safety or usefulness of vitamin supplements. If you are taking the vitamin supplement, there is absolutely no way anyone can honestly vouch for what is in the pill, where it came from, or how safe it is.

Doctors are now beginning to get acquainted with vitamin supplements, but too many people, including doctors, still believe that they are harmless. No one needs a vitamin supplement unless they have been tested for and have a specific deficiency.

John Kenneth Galbraith wrote a book on advertising in the 1960’s in which he said that the industry creates consumer demand. Medical device manufacturers, pharmaceutical companies and vitamin supplement giants always have their hands in our wallets. They spend enormous sums of money trying to convince us that we need products, services and processes that we may or may not need.

Not long ago I asked a doctor friend of mine how many patients have problems just because they are overweight. He said, “most of them.” He said he wished he could send any patient away for a year and tell them to come back 25 pounds lighter. He said with a sad chorus that there would be a lot less “Complications” after the operation if he could do that.

When consumers hear advertisements, they are usually skeptical. That is a good thing. Hopefully the public will be as skeptical of statements from doctors, hospitals, pharmaceutical companies and medical device manufacturers as they are of used car salesmen and, “Yes indeed,” sometimes even lawyers.

Clifford A. Rieders is a Board-Certified Trial Attorney in Williamsport.



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