Noted medical doctor and ethicist Carl Elliott is the author of White Coat, Black Hat, a book about the “dark side of medicine.” The New York Times reviewed the book and highly recommended the entertaining and extremely readable essays regarding the way our for-profit health-care system really works.
He was interviewed at Pharmalot regarding the book, and I happened to read the interview. While the whole interview was interesting, the part that jumped out at me was when Dr. Elliott referred to trial lawyers as a “gleam of sunshine” in the otherwise cloudy skies of medical ethics.
Most doctors think of trial lawyers as a disease for which tort “reform” is the only cure. So when I saw that Dr. Elliott describes us in positive terms, I had to know more. So I e-mailed him the following four bolded questions, and he was kind enough to answer them:
1: In most cases, protective orders prevent trial lawyers from disclosing information they discover about the safety and efficacy of a drug. How do you feel about that?
Well, I think that has to change. We owe a debt of thanks to the attorneys and expert witnesses who have made documents from these lawsuits publicly available. If not for those documents, we would have no clue about the extent to which pharmaceutical companies have spun and manipulated the scientific data about their drugs.
2: Some people argue that the disclosure of internal company documents is bad for the public because the documents can be taken out of context. Do you agree?
No, but if that’s the concern, then the solution is to put the documents into context. Pharmaceutical companies are free to do this. Science can only work if scientific data is available to everyone. If the data is hidden away and only made available selectively, it’s not science; it’s spin.
3: What affect, if any, do you believe the threat of litigation has on the way that pharmaceutical companies conduct business?
Litigation has taken the place of regulation. I wish we had a regulatory system that made litigation unnecessary, but we don’t.
4: Anything you’d like to say to the trial bar?
Saying this will make me very unpopular with doctors, but I wish litigators would broaden the scope of their lawsuits. Part of the problem now is that pharmaceutical companies have such deep pockets that litigation is just the cost of doing business. But pharmaceutical companies are not alone in manipulating the scientific literature. They also hire ghostwriters, academic thought leaders, medical education companies and even ethicists, each of whom may well be complicit in the deception. These other parties are rarely punished for their complicity. If they were named in litigation alongside the pharma companies, they would think twice about getting involved.
I also wish that trial lawyers would start looking more closely at industry-sponsored clinical trials and not just product liability. It is shocking just how little ethical oversight of these trials there is, and the burden of taking part falls disproportionately on the poor. Litigation may well be the best way to push for some serious social change.
Amen, Dr. Elliott.
Now let me go ahead and say something that will make me very unpopular with some trial lawyers. If you’re a lawyer who just parks his cases in an MDL, never reads the “hot docs,” and would never ever consider challenging a protective order because that might upset the apple cart, then you’re a part of the problem, too.
In every docket, there are plenty of liability documents that don’t contain trade secrets and thus should not be subject to a protective order. As a recent example, let’s use the famous “Caubel letter” from Ortho-Evra. In that letter, a J&J VP resigned because he believed J&J wasn’t seriously evaluating the safety problems with Ortho-Evra. That document has been covered by a protective order for years, and it shouldn’t have been.
Just this week I had to review the death certificate of a girl who died from a Pulmonary Embolism while wearing the patch. I bet she wouldn’t have been wearing it had she known about Caubel’s resignation. Too bad no one fought the battle to get that document released to the public.