When pharmaceutical companies allegedly violate regulations governing prescription drugs and medical devices, federal and state governments frequently pursue civil and criminal claims against them. Drug and medical device companies have paid billions in fines and settlements over complaints of marketing schemes that violate federal and state law, often involving kickbacks to doctors and hospitals in exchange for favoring a particular drug or device. Such a scheme clearly subverts a doctor’s independent professional judgment and creates a conflict of interest, since the doctor might not have a patient’s best interest foremost in mind. According to a review conducted by reporters for the Washington Post and ProPublica, of all the civil and criminal cases brought recently over these issues, almost none resulted in penalties of any sort for the doctors involved. This should cause concern for patient safety, for if doctors are not held responsible for their roles in kickback schemes, other companies may continue the kickback process and put patients at risk.
A kickback scheme typically involves a drug or medical device manufacturer offering a benefit to a doctor in order to encourage that doctor to prescribe a particular drug or device. This rarely, if ever, involves outright payment of money. In the recent cases brought by the federal government, for example, drug companies allegedly offered paid speaking engagements to doctors who prescribed their medications. The concern for patient safety involves the unique doctor-patient relationship, in which a doctor must evaluate all options for treatment and make an impartial decision based on all available information. Introducing a form of inducement to favor one medication or treatment over another has the potential to corrupt this process. As a result, patients may receive inappropriate or off-label medications, or even incorrect or unnecessary treatments. The cases brought by the government did not allege any specific harm to patients resulting from the kickback schemes, but proving damage like that was not a necessary part of their case.
Since 2008, at least fifteen companies selling both medications and medical devices have settled cases alleging kickbacks and marketing fraud to the tune of around $6.5 billion. Over 75 doctors appeared in the various civil and criminal complaints as alleged participants in both illegal marketing and kickback schemes, but according to the review by Washington Post and ProPublica reporters, none of them faced sanctions. Reporters consulted with state medical boards and found that they rarely investigated the allegations of wrongdoing by the doctors contained in the government’s complaints.
The simplest reason for this is that, compared to the multi-billion dollar pharmaceutical industry, doctors are small fish. Allegations against the doctors helped federal and state regulators make a case against the big companies, but many may have felt that the cost of pursuing the doctors was not worth the cost once the bigger cases ended. This underscores the importance of patients asking questions of their doctors and studying their prescribed medications and treatments.
Kansas City medication error attorney Doug Horn has represented people injured due to errors by medical professionals for over 20 years. Contact the firm today to schedule a free and confidential consultation.
Kickback and Physician Self-Referral, U.S. Department of Health & Human Services