- Journal Archives
- Volume 18
- Volume 17
- Volume 16
- Volume 15
- Volume 14
- Volume 13
- Volume 12
- Volume 11
- Volume 10
- Volume 9
- Volume 8
- Volume 7
- Volume 6
- Volume 5
- Volume 4
- Volume 3
- Volume 2
- Volume 1
I respect the time, effort, and money that pharmaceutical companies devote to drug research and development, and advertising the drugs that are ultimately developed is an inevitable part of the research and development process. The basic service that pharmaceutical companies provide–developing drugs to cure diseases–is a valuable one, and one that our society frankly couldn’t do without. However, pharmaceutical companies that provide remuneration to physicians and others to prescribe or otherwise recommend their drugs violate not only federal law but also basic ethical standards in health care, and in turn drive up the cost of medicines for consumers.
In September 2009, Pfizer paid over $2 billion in fines for, among other violations, awarding remuneration to physicians to prescribe the company’s drugs for off-label uses. In November 2009, Omnicare, a company that provides pharmacy services in nursing homes, settled with the U.S. government for $98 million. This settlement brought closure to a lawsuit in which the Department of Justice alleged that the company received kickbacks from Johnson and Johnson (J&J) in exchange for asking physicians to prescribe J&J’s drug Risperdal, an anti-psychotic medication used to treat diseases such as schizophrenia.
The DOJ has now taken on J&J itself, filing a lawsuit alleging that the pharmaceutical giant paid Omnicare millions of dollars to recommend to physicians to prescribe Risperdal. Such kickbacks are illegal under the Anti-Kickback Statute; however, the accusations don’t stop there. The DOJ has also alleged that J&J filed false or fraudulent Medicaid claims, illegal under the False Claims Act.
While pharmaceutical companies that award kickbacks in exchange for promoting their drugs violate the Anti-Kickback Statute in taking such action, I am just as concerned about the cost to patients as a result of these kickbacks as I am about the violations of federal law (and accompanying ethical violations). The drugs that physicians or others promote in exchange for kickbacks are not generally generic. By way of example, Risperdal’s patent expired in 2007, and J&J is thought to have paid kickbacks to Omnicare in the early 2000s. Thus, no generic equivalent of Risperdal was available at the time of the alleged illegal action. As a result, patients without health insurance or drug coverage incur much higher costs for their medications because their doctors prescribe brand name medicine, not a generic equivalent.
Open up any newspaper these days and you will find articles discussing the high cost of health care in the United States, the number of people who don’t have health insurance because of the high cost, and the government’s attempts to remedy the problem. Instead of just focusing on developing a government-based health insurance plan and prosecuting the pharmaceutical companies that violate laws like the Anti-Kickback Statute, however, perhaps the government should also send the message that physicians and pharmacies should promote the use of generic drugs where appropriate. Many physicians are quick to prescribe the latest and greatest medications, some because they receive kickbacks, and others because they genuinely believe their patients will be better off. However, prescribing generic drugs is an important solution to lowering the cost of health care and making it more affordable for more people.
– Lauren Solberg
Recent Blog Posts
- If You Build It, They Will Come: Baseball and the Reopening of Cuba
- First Circuit Aligns With Third: Actavis Extends Beyond Cash Settlements
- Current Issues in Technology Law: Dr. Asma Vranaki Analyzes Data Privacy Regulation in the Context of Facebook Advertisements
- Vanderbilt Journal of Entertainment & Technology Law Rises in National Law Journal Rankings
- Dancing Babies: The Ninth Circuit May Have Protected Them from Computer Algorithms
- Starbucks’ Next Top Model: It Could Be You
Tagsadvertising antitrust Apple books career celebrities contracts copyright copyright infringement courts creative content criminal law entertainment Facebook FCC film/television financial First Amendment games Google government intellectual property internet JETLaw journalism lawsuits legislation media medicine Monday Morning JETLawg music NFL patents privacy progress publicity rights radio social networking sports Supreme Court of the United States (SCOTUS) technology telecommunications trademarks Twitter U.S. Constitution