Responsibilities regarding attorney advertising and i now recognize myself for an opening statement. Todays hearing will examine the ethical responsibilities related to attorney advertising. Id like to start off by showing an ad that will be projected on the screen to your side and to the front for the members. Let me go ahead with the ad, please. The blood thinner may cause serious internal bleeding. The f. D. A. Is reporting leeding events of linked to 260 deaths to the use since 2010. If you or a loved one took pradaxa and suffered symptoms you may be able to receive compensation. Call 1800baddrug to call your rights with an attorney. Call 1800baddrug. Mr. King ladies and gentlemen of the committee, any anyone whos watched television in recent years has likely seen this ad or one like it. They include a toll free number like 1had 800baddrug, vis ules of an injury and a list of the side effects. One bit of information thats 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 an warning, its in tiny, lowcontrast text at the bottom of the tv screen. Studies show these ads are reaching a broad audience. A recent survey conducted by Public Opinion strategies, for example, states that nearly 3 4 of americans say they have seen ads by law firms about pharmaceutical lawsuits in the last year. 3 4 of americans. Thats 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 releases they issued last year, patients were more likely to use prescribed f. D. A. Approved pharmaceuticals after seeing Television Advertisements that, quote, emphasize side effects while ignoring the benefits of the fact that the medication is f. D. A. Approved. Closed quote. Unfortunately, these ads are having terrible consequences. A study published in the heart rhythm journal reported patients who were prescribed quit reltho and who taking it suffered serious injuries or have died. According to the author, 75 of patients experienced a stroke. Two patients passed away, including a 45yearold man. These cases only account for those that have been reported to the food and drug administrations adversely reporting system for that drug. There may be many more cases that have undergone reported for this drug or many other drugs and medical devices that have been the subject of negative attorney advertisements. Todays 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, todays hearing presents a new topic for us but its old wine in a new bottle. Its another attack on trial lawyers, advocates that make our country differ from others as we have advocates to argue for us in court. And the beneficiaries of this attack on the plaintiffs bar are wellhealed corporate interests that will benefit greatly and prefer probably not to be attorneys at all unless they were defense side. And this committee has unfortunately the constitution and subcommittee has dealt too much on enritching the rich and attacking enriching the rich and attacking the plaintiffs bar rather than 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 1, section 9, and no foreign power, no king, no prince, no foreign state shall give a gift emolument of any kind to somebody serving in 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 chinese and gosh knows what else. John kennedy was offered an honorary citizenship by the ancestors and land, ireland, and he asked counselor if he could accept an honorary citizenship. It was deemed so and he didnt accept it. But theres the difference. And many president s over the years have asked for and then turned down and some even just small items but were attacking the plaintiffs bar once again. Last week we had the majority complain about government regulation of business and businesses ability to communicate with the public. Advocacy, if call you can believe we have robo called a vow casey, maybe the st hated ed a vow casey, maybe the most hated, because they were talking they were calling and calling and call and pestering people and bothering people. We now look to reduce that more. Make no mistake, this hearing may be framed as one of concern by Health Care 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. Its consistent, though, with the Health Care Bill this majority has given the country which is not a Health Care Bill and which president obama has correctly said is more about tax breaks for the rich and less about health care. Why some is clear would want to impose greater restrictions on the ability of attorneys to communicate to 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 it is protecting free speech. Only when the advertising is false or misleading may be prohibited and may states impose regulations on misleading advertising. So far theres been little evidence that attorney drug injury advertisements are false or misleading under current law. Therefore attempts to restrict or constitutionally suspect at best. The subcommittees once again intruding on states sovereignty. The mantra of the majority side in the name of socalled tort reform. Regulation lawyers has traditionally followed in state Supreme Courts or state bars or states in general. Surely the federal legislature has better use of its time than to matters left to state administrations or to attempt to intimidate them to do some of its bidding. But weve 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 we should seek to limit attorney advertising in the name of protecting consumers and Public Health given the enormous amounts Drug Companies spend to influence consumer choice. Lawyer drug injury advertisements tells the public about the dangers of certain medications and the availability of Legal Services for those who are injured. Yet, i note while 114 Million Dollars may have been spent on attorney drug injury advertising in the year 2016, that pails fiscal year 2016, that pails 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. Thats the real threat to consumers is drug advertising, getting people to want drugs and go to their doctors and take like huey lewis and the news i need a new drug. We shouldnt try to manipulate patient choices about what medications they should be taking. Our broadcast print and online media are full of pharmaceutical ads that its impossible to escape ads from medications, from erectile dysfunction and a fourhour problem to cons pasion 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 risks and benefits of doing so, should be left to the patient and consultation with a health care professional. They should not be influenced by advertisements and the insat yabble greed of Drug Companies telling you when youre in the moment use our drug. Truthful and constitutional protected lawyer advertising performs an important societal function and informing people of drugs of the availability of Legal Services and Legal Recourse and where ads are false or misleading, state bars are 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 chairman of the full committee, mr. Goodlatte of virginia, for his opening statement. Mr. Goodlatte. Mr. Goodlatte thank you, mr. Chairman. On march 7, 2017, this committee sent a series of letters regarding the topic of todays 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 we received so far from state bars, it appears 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 todays hearing from dr. Frank pee cot of houston, texas, pee caulk, of houston, texas, who reported. My patient being 66 years old female with a history of high Blood Pressure and diabetes has a 4. 8 risk of having a stroke within the next year that would leave her about a dill tated, unable to speak, wearing diapers in a nursing home for the rest of her marketedly shorten life versus taking a pill every day with the risk of a fatal bleed of antiquag lakes of. 009 per year. To summarize, this patient had a 4. 8 annual stroke risk versus. 0009 annual fatal bleeding risk. In medicine which call this a nobrainer. And takes the lower of the risks. So i went to the patients bed side to have what i thought would be a relatively straightforward conversation. Usually this is a fiveminute exchange about what atreal fibrilation is and what would be the recommended treatment. I answered some of the questions, write a prescription, move on to the next patient. Thats not how it went. I went to the bed side and told my patient that her tested showed she had this but instead of her asking me the expected question what is it she said, i know. O if she had atreal fib ration the next question fibrilation, the next question, which medication is she taking . She told me a story that made me so angry that motivated me to write this testimony today. Wednesday, four days before coming to my e. R. , she felt tired and weak and had a fluttering position in her risk. Her doctor diagnosed her with it. She found the same results that i did, 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 them, the risks, the benefits, treatment options, answered her questions and then ave her a prescription for rivoroxoban. On wednesday afternoon, my patient filled the prescription, went home and took it. All was well until thursday evening which while watching television she saw the one the first 1800baddrug commercial that implied that the drug 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 didnt have an appointment available until the following week. She called the 1800baddrug number ad but got no instructions. What to do, petrified with fear she did not take her medicine that night. On saturday morning in my e. R. 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 doctorpatient relationship and prompt her to engage in behavior that could be fatal. My patient left my e. R. About midday. She took her medicine before she left. Nobody will know what would have happened had she waited to take her anticoagulant. Would she be dead or in a nursing home . What if it had been a different patient that just listened to the tv and didnt come to my e. R. . Dr. Peacocks statement saying these advertisements are having a realworld 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 look forward to your testimony. Mr. King i thank the chair of the full committee for his statement. I want to yield to the Ranking Member of the full committee, mr. Conyers. 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, its also a fact that some esult in injury and death. Even properly prescribed medications cause on average almost two million hospitalizations every year. Orse 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 administrationapproved medications. Accordingly, attorney advertisements that truthfully inform consumers of the dangers of such medications as well as the availability of Legal Services for those who have en 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 nonmisleading attorney advertising is protected under the First Amendment in the constitution. Its 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 do not 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 advertising 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 gives unjustifiably broad Legal Protection to Health Care Providers including complete legal immunity for such providers in any Product Liability lawsuit concerning the provision of drugs or medical devices. Such protections for Health Care Providers will deny injured patients the ability to be made whole. Further, regulation of attorney drug injury advertisements combined with enactment of medical 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 deny their day in court on the back end. Public Health Consumer welfare and the interest of justice would not be served by such an outcome. And 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 received from various groups and individuals interested in todays hearing. Without objection, so ordered. And now id like to introduce the witnesses. Ur first witness is dr. Ilana kutinsky from beaumont michigan heart group. And shecked is dr. Fleming, a vascular surgeon at Novant Health specialist. Our third witness is linda shel lynda shely. And the fourth is assistant professor, university of Oregon School of law. I ask the witnesses to summarize their testimony in five minutes or less and to help you stay within that there is a timing light turns to green when you start to speak and turns to yellow at the end of four minutes. And 60 seconds we ask you to rap up your testimony in a cogent way. Before i the witnesses will be sworn in. I ask that you please stand to be sworn in. Raise your right hand. Do you swear that the testimony before you that you are about to give before this committee is the whole, the the truth, the whole truth and nothing but the truth so help you god. Let the record reflect that all the witnesses responded in the affirmative and i now recognize our first witness, dr. Kutinsky. Please proceed shortly after you turn on your microphone, please, doctor, you are recognized. Dr. Kutinsky chairman king, Ranking Member cohen and members of the subcommittee. My name is dr. Kutinsky thats practiced medicine for nearly two decades. My goal today is to explain why attorney advertising related to medical treatment should be required to represent transparents, parent, 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. Ive 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 in tort ads can lead to treatment noncompliance, irresponsible attorney advertising undermines the patientphysician relationship and completely disregards evidencebased medical practices and recommendations from the f. D. A. To offer an idea of what ive seen, i will describe an incident involving an elderly patient of mine who was diagnosed with heart disease. I have many examples like this. This is just one. To reduce her likelihood of stroke, i recommend that she begin a regimen of anticoagulation medicine, commonly referred to as a blood thinner. All medicines have a side effect and its the job of the physician to counsel the patient by the side effects and why they outweigh the benefits of the medicine. This elderly patient was resistant because of the potential bleeding effects. But after several Office Visits involving long discussions, oneonone education i built a Strong Enough relationship with the patient that she agreed and understood that the risk of her stroke was high and that the nefit of treatment of an anticoagulant agent outweighed the risks. She did not want to have a stroke and lose her independence. Then, three years later she presented to the hospital with massive stroke. I was confused and i spoke with her family. I was concerned my treatment failed her. They informed me that two weeks prior to her administration she admission she received a flier in the mail learning that her medicine could cause massive internal bleeding and death. She didnt want to die so she stopped her medicine. She planned to discuss her decision with me at her next appointment. Unfortunately by then she 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 eight years after inally convincing her to go on anticoagulation so she could be protected from a stroke. She stopped the medicine after getting a flier from a solicited attorney that doesnt have background. This is something i see on a constant basis. It may seem impossible that someone would do this based on a faceless advertisement from a person injury attorney but its true. This is the most common arith mia in the United States. There are currently over five million americans with this and by 2030 that number will be over 12 million. I know that patients with this isease have a my morbidity and fatality. Leading medical societies as well as the f. D. A. Recommend countering this risk by initiating therapy with anticoagulation. Thats the standard of care. As a physician i understand and discuss this with my patients that the medicine hold some risk of bleeding. In reality, a very low risk but those risks are substantially outweighed by the benefit of stroke prevention. I tell them to take this based on treatment of heart patients. Because lawyers are held in high esteem they can eradicate sound medical advice with one advertisement despite no medical training. Patients dont know the solicit nature of a tort ad. They dont 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 wellcrafted advertisement. Im not a lawyer so i am not here to argue whether this infringes on freedom of speech or whether advertising is sufficiently regulated by the state Bar Association. I can only communicate the actual events that ive witnessed on a regular basis involving real people who disregard sound medicalbased advice based on misleading legal advertisements. While i am 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 misrepresentation or false and misleading ads at the expense of the american public. In closing, i ask the committee consider the following key issues. First, attorney advertisements currently required to present a fair and balanced view. They do not have a disclaimer stating they have no medical background. Second, because of this lack of balance, advertisement has the potential to scare patients into stopping important therapy. These advertisements undermine the physicianpatient relationship, instilling unfounded doubt and mistrust. Finally, these advertisements undermine current evidencebased medical practice and standard of care. They are directly advertising against medications determined by the f. D. A. 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 relating to medical treatments represent a fair and balanced view of the of medical issues and hold the clear disclaimer that the ad is not presented by the medical by a medical professional. I thank the committee to tonings of this critical issue and allowing me the opportunity to share my attorneys. Mr. King thank you, doctor. Now the chair would recognize dr. Fleming for your testimony. Dr. Fleming. Dr. Fleming chairman king, Ranking Member cohen and members of the subcommittee, thank you for letting me be here. Its an honor. I have the prirching of practicing as a Board Certified vascular surgeon in winstonsalem. As part of my duties, im often asked to determine the need for anticoagulation as well as prescribing medicines and determining risk of coagulation around surgery. Im also called upon on occasion to perform emergency surgery on people who are bleeding to death or who are suffering clots. Primary has been the drug prescribed. Though its cheep, it has side effects. The new class of anticoagulants has simplified the management of patients at risk for blood clots. These 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. Its one that prescribers take into account when theyre consider thinking risk and benefit analysis for each patient. Several years ago, i became aware of advertisements about these medications when i began noticing frequent and strong resistance from patients prescribed these medications. When i inquired about the source of the resistance, i was told about the commercial and the fears they have of dying from the drug. Since not since i became 2000 have i seen patients so regularly and frequently fear recommended treatment from a medical professional. Since the commercials first appeared i spent countless time in the clinic trying to convince patients of their safety. Not long ago i encountered a atient in my practice who was simultaneously under the care of another physician for an unrelated medical condition a pulmonary embolus. This is a blood clot that goes to the blood and is life threatening. Nn reporter david bloom died of this while covering the war in iraq. I notice he had been asked to place on xarelta. In reviewing his medications he told me he wasnt taking the medication nor would he ever. I spent time trying to convince refused. Ise but he everal weeks later, we learned he had died of a recurring emboll us. Its my opinion that the tone an tone and con tovente the advertisements imply something about the medication that is not true. When you say call 1800baddrug, that imply its bad drug drug which runs counter to medical evidence and the f. D. A. s recommendations. This implies a false choice where the patients cannot take the medication and be just fine or not take the medication and bleed to death. Thats in the the case. If they dont take the medications they could die and are more likely to die from a thrombotic event but thats not mentioned in the commercials. While i dont know the intention of the commercials, i can testify with confidence that patients perceive these advertisements as medical advice. They are often in direct contradiction to that of their physician. This leads to conflict in the doctorpatient relationship not just as it pertains to this drug but if they believe i prescribe them a drug that may kill them, then six months later when i need to give them a different drug, theyre resistant. When i tell them i need to put them to sleep to do surgery on them theyre resistant. Each of these new medications carry a significantly lower risk of bleeding yet i have seen no commercials targeting warfarin. Its unfortunate patients are making the decisions on advertisements that are not held to the same standards as medical profession. Multiple levels of oversight and review led to the development of anticoagulants which 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 the plan of care. As such, creators of the commercials should be held to the same stan car as physicians and Drug Companies. I appreciate the opportunity speak with you today. Thank you very much. Mr. King thank you, dr. Fleming. He chair recognizes ms. 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 about lawyer advertising and regulation of lawyer advertising. Im speaking today in my individual capacity, i am not representing any organizations even though im a member of three state bars, arizona, district of columbia, and pennsylvania. Im also a member of the American Bar Association and the immediate past president of the association of professional responsibility lawyers. Or 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, i dont advise any of the firms well be discussing today regarding these commercials. I have not been paid for 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 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. Were not selfregulated, were regulated by the judiciary. As Ranking Member cohen indicated in his opening remarks, we are regulated by the rules of professional conduct. Those rules prohibit false and misleading advertising by lawyers. Any communication by an by a lawyer is prohibited if its 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 thats 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, ar a committee of the highest judicial court, receives a complaint about a lawyer advertising, 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 beties plinned. 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 disclaim fer appropriate. To clarify the statement. Or they could be repry manted reprimanded or suspended if theres found to be a violation. 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 vs. 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 prices charged to consumers. I have to tell you that in the 24 years i have been advising lawyers on legal ethics matters, including 10 years at the state bar of arizona as the director of ethics, i have never once heard a consumer complaining about an advertisement, actually i have not seen any doctors submit advertisements to the state bar complaining. Yaw you all know that everybody has standing to complain about a lawyer ad. It doesnt have to be someone who is harmed. Anyone can submit to the state bar or your appropriate Regulatory Authority a concern about a lawyer ad. That state board can determine whether additional safeguards need to be put in place. All of this information is anecdotal. The association of professional responsibility lawyers conducted a survey in 2015 which i incorporated 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 state bar regulators, virtually all confirmed. Consumers dont complain about being confused about lawyer advertising. And this is not a fact that consumers dont know that they can complain because consumers do complain a lot about other types of lawyer conduct. Theyre 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 they can take appropriation action because the Current System does work in regulating against false and misleading advertising. Im happy to answer any questions that the committee may have. Thank you. Mr. King thank you for your testimony, ms. Shely. The chair would now recognize ms. Tippett for her testimony. Ms. Tippett thank you, chairman king, Ranking Member cohen and members of the subcommittee for the opportunity to testify today. My name is elizabeth tippett, im a faculty member at the university of Oregon School of law. Its an honor to be here today. I want to say im 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 they serve. At the same time, its my strong belief that drug injury advertising is an important issue of Public Health and Consumer Protection. Ive shared many my in my run written testimony the Scientific Evidence we have to date on how these ads may be affecting the way people make medical decisions. But first i wanted to share a personal story with you. The reason im 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 they were canceling a surgery because of an attorney ad they saw on television. 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 is looking for clients. Thats why they had that ad. I add, does your doctor think you should proceed with the surgery. The Family Member said yes. I said at the end of the day, youre going to have to decide whether youre 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 affected by these ads too . And as lawyers are we upholding our responsibility to communicate this Important Information in the most responsible possible way. Im also married to a doctor that 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 these akd 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 searsly. 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 candy bars. Theyre important to decisions of people who see them, not just people harmed by the drugs but also people who might be taking the drug orel jibble to take the drug in the future. These advertisements almost always involve drugs that are still on the market. One of my studies looked a at the content of these ats. 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 the ads looked like a distaupian Public Service announcement and had language like consumer alert and medical alert and warning. Then they described the bad things that would happen to you if you took a drug. Sometimes from these ads it was difficult to tell they were sponsored by a lawyer. Heres the strange thing i dont understand about these ads. If you have been harmed by a drug, you dont need a warning. You have already been harmed. Why, then do, these drugs have such cautionary language about the dangers of the drugs . I actually spoke with an advertising tern 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 to identify someone who has been harmed by a drug and may not connect their injury with a drug they may have taken in the past. Essentially what he was telling me is the effect on peoples current medical decisions is a side effect of the advertising. The point of the advertising is that 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 we take seriously the medical side effects of prescription drugs. Now, as i explained in my testimony the drug injury Advertising Market is compleaks because the entities respond to the advertising are different than 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 and guidance to advertisers on best practice. Part of the solution may be to have an impartial Rating System for advertisers so 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 selfregulation and i dont think we have take than take than 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 and i would be happy to take any questions. Mr. King thank you, professor tippett. Well now proceed with questions from members of the panel. Ill recognize myself for five minutes. Yes we are. I didnt see that. In that case well recess and come back to this hearing. I didnt see that. Were voting on the floor. This committee will now recess and will return shortly after we conclude our votes. Mr. King the subcommittee on the constitution will come back to order and resume our business. At this time i would like to from ce a a document benjamin barton, do judges influence the Advertising Industry . Without objection, ordered. I now recognize myself for five minutes and see if i can pick myself back up to where i was after the excellent testimony from our witnesses. One thing that came to mind for me when i hear about ads affecting peoples decision was the statement, i believe it was you, dr. Kutinsky, if i can find my note, which was one single ad can eradicate one single ad can eradicate professional advice and the frustration was on your voice as well as in your words that you can build a longterm doctorpatient relationship and then as the patient goes home, turns on the television, its all erased and they decide to make a decision thats directly against their best Health Interests because of an ad. And does that change as the atients get older . Dr. Kutinsky i think that i was thinking about this. As patients age they get more frightened in general. Theyre afraid of their health. And these are drugs that they didnt want to take to begin with. Nobody 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 theyre fright and they dont know. So yeah, i think that one advertisement, this was one advertisement and i had known this lady for many over eight years when this happened. Mr. King the older people are, the more pharmaceuticals theyre likely to have prescribed to them, the higher their anxiety goes as a function of age, maybe not as a result of the pharmaceuticals but thats also possible i think. Dr. Kutinsky yes, i think as they age they get less confident on everything, theyre on 10, 11 different medicines, they get confused they lack trust they can be preyed on very easily. Mr. King do you watch political ads . Do you ever think about the comparison between what you described here and political ads . And sometimes the december niff of america something that may be a thread of truth and leave out a whole ocean of information that is necessary to evaluate . Dr. Kutinsky yeah, i think if there is a fair look at an issue so if the ads, there is a. 5 risk of massive bleeding, 70 benefit of preventing a stroke. Thats a fair ad, right . If you bleed, you take that risk. That. 5 risk. And so when i describe it to a patient thats what i do. Thats what these ad should do. Im not saying there shouldnt be ads. Mr. King if you prescribe the wrong drug, are you liable . Dr. Kutinsky of course. Mr. King then your medical malpractice and Liability Insurance is supposed to cover that, whats happened to your premiums . Dr. Kutinsky theyre high, super high, they continue to go up. Mr. King in proportion to my Health Insurance premium, i would think . Dr. Kutinsky probably. Mr. King i want to ask professor tippett if doctors are liable when they prescribe the wrong drug and attorneys can advertise and spend potentially millions of dollars to put out a thread of truth and argue its under First Amendment protection, a thread of truth that counteracts 99. 9 of what is necessary if doctors are liable, why arent attorneys liable . If the misinformation from attorneys brings about death or injury, doctors are paying for their professional error, why arent attorneys paying for theirs . Tip i guess i dont 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, its the context in which they present the information is misleading. Thats my primary concern is the context in which they provide medical information. Mr. King sure but if a doctor in context of recognize theres a tiny little percent of a bad reaction to a drug either prescribes the drug, understanding theres 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. 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 id appreciate you introducing a more complex answer on the record. I see that my time has expire. I yield back the balance and turn and recognize the smiling gentleman from maryland, mr. Raskin, for his questions. Mr. Raskin thank you very much. Thank all of you for really excellent testimony. Lets see. Ms. Shely, let me start with you, if i could. To a what extent is the problem that were talking about just a general cost of having the First Amendment at all . I mean, assume youve got a drug where 1 of the people end up with some horrific side effect, those people 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 they still have the right of free speech to talk about the her risk effects on them even if its not giving people the complete context a doctor would, would you agree to that . Ms. Shely yes. Mr. Raskin is there anything we can do about that problem . Ms. Shely thank you for the question and we do have a system to deal with this. We do have state regulators. Mr. Raskin for lawyers now, because lawyers are part of a regulated profession, and the Supreme Court 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. Do you know of any cases where lawyers have put out ads like this that focus just on the risks and prey on peoples anxieties or fear and they have then been brought up on charges that they are engaged in false, deceptive, or misleading speech . Ms. Shely i cant cite you to a specific instance, because as my testimony indicated, im not aware of anybody complaining to. Mr. Raskin professor tippett, are you aware of complaints like this . Ms. Tippett my research suggests, i could not find any evidence that any state bar has taken any action on this, nor has the f. D. A. Or the ftc and thats problematic from think standpoint. Mr. Raskin have there been consumer complaints or complaints from people who say they were engaged in a course of therapy they see a terrifying ad and cease treatment and then they they end up being injured because they cease treatment, then they make a report to the Illinois State or ar the Illinois State bar or tip i have no access to that 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 the chairman made an interesting point about political ads. I can run for office and say, im going to build a wall, i guarantee you 100 , mexico is going to pay for it, i win the election, mexico doesnt pay for it, nobody has a cause of action against me. Im not kicked out of office, nobody can go for money damages or injunction. To what extent is this just the cost of the First Amendment . The prescription Drug Companies will put ads out that emphasize the benefits of using the drug and then in 100 Miles Per Hour they will say, and theres 50 possible side effects we hope youre not going to hear in the next three seconds. The lawyers focus on the risks, in order to find as you were suggesting people who have lready been injured by it. Isnt it just like with the political market, buyer beware, we expect people to make informed choices and try to work it out themselves, i dont know if either of you has a thought on this . I would be happy to answer that. Pharmaceutical advertising is heavily regulated. The attorney ads are only regulated by the state bar and in that vein not enforced at all. Ms. Tippett the comparison between pharmaceutical ads and attorney ads is apt and we should be as thoughtful about that. Mr. Raskin but who is woe we . Traditionally its the state bars and state Supreme Courts that regulate this is problem. So as far as i can tell there have been no complaints and nobody has brought any cases. 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, im amazed theres never been a case like this. Ms. Tippett my understanding is that most consumerelated complaints are clientdriven. This is an unusual situation because its not the clients who are injured. Theyre not complaining about lawyers stealing their fees. Because its nonclients who are affected thats why i think theres way fewer complaints an than the Public Health or Consumer Protection might suggest there should be. Ms. Shely let me clarify one issue with respect to regulation of the lawyer advertising. Im not aware of any cases involving any of these ads but i believe thats 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, theyre not receiving these complaints. And consumers do complain about lawyers all the time. They dont complain just about their lawyer. They complain about every lawyer and they do complain about people that they just see in court. Mr. Raskin do they complain bout lawyer advertising . If i could just take one second to introduce into the record a letter, march 23, 2017, from a. B. A. In response to chairman goodlattes questions. Mr. King hear nothing actions so ordered. The chair recognizes the gentleman from michigan, mr. Conyers, for his five minutes. Mr. Conyers thank you, mr. Chairman. I thank the witnesses. Ms. Shely, the would any of the attorney advertisements cited by the witnesses or members here today violate the American Bar Associations rules which ohibit a false or misleading advertising or any other similar state rule which you are familiar with . Ms. Shely thank you for the question and just to clarify for the record the American Bar Association model rules are exactly that, they they dont regulate anybody, they are simply models the states then craft their own state bar regulations after. And not looking at every single ad but at least at the ads that the chairman showed at the beginning of the hearing, if a lawyers name and address are not present, that absolutely would violate a. B. A. Model rule 7. 2c. You must have a lawyers name and address in all communications, again, including my pen, thats a communication about a lawyer, that is regulated by the rules of professional conduct. And if thats not there, then that bartha 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. Its 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 will either ask that the lawyer put something clarifying in the ad if they think its confusing or creates unjustified expectations or may even discipline that lawyer through a reprimand, censure or suspension. Mr. Conyers let me ask you , is about constitutionality the American Medical Associations recent resolution recommended that attorney advertisements should be required to include a warning that patients should not discontinue their medication without first consulting their doctor. O you think thats constitutional . Ms. Shely an appropriate disclaimer in an ad if the ad otherwise would create an unjustified expectation may be appropriate, thats going to be decided on a statebystate basis. Mr. Conyers anybody else want to . Yes, please. I think theres a difference with these ads. You said people, patients arent complaining. There havent been any complaints. The patients dont know that the ads are false. Thats part of the problem. If an ad states a drug can cause massive internal bleeding and death, they dont the patient doesnt know thats right or wrong. Patient doesnt go and get the medical literature and do a medical literature review. The physicians know thats wrong. The physicians are angry about it but the patient doesnt know its wrong. Thats why its misleading. He pharma ads, you still require a visit with your physician you need a prescription. Theres still a physicianpatient relationship ads ares what the pharma say, you still have to go through a physician. The lawyer ads dont necessarily make you talk to your physician to stop your drug, they just say this is a side effect a big side effect, warning. Mr. Conyers anyone else want to chime in . Dr. Fleming yes, sir. To the earlier paint about the First Amendment if i walk into the patients room and give them bad advice and they have a bad outcome, i cant claim the First Amendment and my ability to say whatever i want as a defense. Its my belief that these commercials enter into the territory of giving medical advice and when youre giving medical advice you have to be held accountable for the outcomes because i certainly am. Mr. Conyers very good. Et me ask this question. To ms. Shely. Professor tipette suggests that ett e bar professor tip ests that state bars advertising clearly allows advertisers to receive referral fees what do you think of that . Ms. Shely the a. B. A. Model rules require that if a lawyer who is advertising is not the one taking a case, the referral has to be disclosed. So if an ad doesnt include that disclosure if you want to run an advertisement for a bad drug but youre not actually the lawyer who is going to handle that case, you are supposed to disclose under the a. B. A. Model rules how youre referring that. He referral fee is not enforced there as much as you have to identify who is 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 recognizes the gentleman from new york for his five minutes of questions. Thank you, i have a couple of questions and comments. First let me say, dr. Flemings comment a moment ago, there is a much heavier burden for prior restraint than there is for punishment afterwards. In other words its a much heavier constitutional lift to say you may not say that than there is for saying you shouldnt have said that and therefore well penalize you because some bad outcome occurred. Mr. Nadler its a bigger First Amendment problem to prohibit speech in advance. Professor tipett, you write in your testimony about the state of scientific literature regarding people who are were talking about regarding people stopping their medication because of an ad. You say, i am not aware of any large scale observal research that establishes a causal link between drug injury advertising and patient decisions. It is possible that attorney advertising is no has no aggregate effect on whether consumers decide to discontinue prescribed medication. We conducted a study of medicare reimbursement data and didnt find any evidence that increased drug injury advertising volumes associated with a decrease in prescription rates. You then go on to cite some ther studies which are suggestive, not at all dispositive or youre here testifying as are some fellow witnesses that this is a serious problem that we should deal with. And yet youre saying that youre not aware of any Large Scale Research that establish this is causal link. Until we have such large scale observal research, why should we act . Ms. Tippett thank you for asking about that its really hard to establish a causal link as a matter of observation. Its really hard. And because the research is at such an every he stage i wouldnt be surprised that we havent yet found a causal link. But that doesnt mean there isnt one. For example, our study only mr. Nadler i get that point. But we should act and limit these ads on the possibility that theres a causal link . Ms. Tippett first of all, my recommendations as you know dont say we should limit the ads. But second, we do have other evidence. Large observal studies are not the only way to prove things through scientific experiment so we have evidence from the ederal adverse event database, admittedly sponintoird a Pharmaceutical Company that found that 31 patients did base medical decisions on advertisements and two died. Mr. Nadler out of how many . Ms. Tippett i dont know. The database is only looking at those who reported adverse events. But in my mind if anybody is dying we should be taking that seriously as a profession. Mr. Nadler whats your recommendation . Ms. Tippett we need to study this further so we know which content is misleading so we can provide good advice to advertisers and 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 marketbased forces to improve the quality of advertising overall. I dont think thats unreasonable. Mr. Nadler let me ask you a different question. As large perhaps much larger than advertising that says if youve been injured by such and such a drug, call us and 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 them to whatchamacallit. Is that harmful . Are should we regulate that . Ms. Tippett thats an excellent question and id love to provide an answer on the record. In written. I want to look into it. Those are called disease mongering and they occupy a special regulation. Mr. Nadler say its a legitimate, real disease and they tell you call the doctor and ask them to prescribe such and such a drug. Ms. Tippett those are already regulated by the f. D. A. , im not as worried about them because theyre already theres already eversight. Ms. Shely theres oversight of lawyer advertise, if people have a concern they need to bring it to the state bars so they can review the ads. Because the content in the ads varies so drastically we dont have just one rule that says you can say this and you cant 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 i would disagree with some of the testimony that the ads are false, theyre not false, because theyre factually accurate. Whether they create an unjustified expectation is something each state bar needs to look at and whether an additional disclaimer in those ads would help is questionable. Mr. Nadler my time has expired. Thank you. Mr. King the gentleman returns his time. This concludes todays hearing. All members have five legislative days to submit additional questioners in witnesses or addition material for the record. This hearing is now adjourned. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] sunday night on after words, financial expert rachel morduch and professor are interviewed by katherine eden, author of 2 living on almost nothing in america. The risk of small bigses of small decisions going badly is so much higher for people at the bottom. Wealthier people make poor decisions all the time. I can come up for some from me for the last year. But for me the consequence of that is really de minimus. The consequence for people who are struggling is often really beg. One of the pieces of data that surprised me about income and Program Participation in the Government Survey is between 2009 and 2011, a bit of an unusual period after the recession, but during that period 10 million americans were poor during every month of that period but 90 million americans at some point were poor during that period. So a third of america experienced poverty at some moment during that period. Often a short time but it means we have to really rethink whats going on. Watch after words sunday night at 9 00 p. M. Eastern on cspan2s book tv
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