Allegations of Illegal Pharmaceutical Marketing Rarely Lead to Penalties for Doctors

A recent review by the Washington Post of lawsuits against pharmaceutical companies shows that drug manufacturers pay billions in settlements and criminal penalties for irregular and illegal marketing of prescription medications. Doctors who participate in the marketing schemes, usually by accepting kickbacks for prescribing particular drugs, however, rarely if ever receive any punishment. This presents a concern for nursing home residents and their advocates. While the big drug companies present deeper pockets and higher-profile targets for regulators, doctors work on the front lines, so to speak, and have the greatest ability to assess the need for particular drugs. Ultimately, the decisions of doctors have the capacity to do the most harm to patients in these situations.

This Maryland Nursing Home Lawyer Blog has reported earlier on a complaint by the U.S. Department of Justice against Johnson & Johnson regarding alleged kickback payments to a large pharmacy for sales of antipsychotic medications like Risperdal. The suit alleged that J&J’s actions violated warnings from the Food and Drug Administration regarding the accuracy of Risperdal’s marketing materials. Drug manufacturer Eli Lilly pleaded guilty in 2009 to illegally marketing the antipsychotic drug Zyprexa to elderly patients. Accusations of marketing fraud regarding prescription medications and outright kickbacks to pharmacies and doctors in exchange for promoting certain drugs have hit at least fifteen pharmaceutical and medical device companies in the past few years.

The liability for illegal marketing and payment of kickbacks can be substantial for these companies. Eli Lilly paid $1.4 billion for penalties in the Justice Department’s case and settlements in four separate lawsuits related to Zyprexa. Alpharma paid $42.5 million in settlements related to allegations of kickbacks for prescribing the painkiller Kadian. Overall, accusations of marketing fraud and kickbacks have cost the industry $6.5 billion since 2008
The review of these cases found no instances of doctors facing serious sanctions or even professional discipline. Since 2008, federal investigations into kickbacks and illegal marketing have identified 75 doctors who allegedly participated. None received any sort of monetary or other criminal penalty. Few state medical boards conducted investigations into the doctors’ conduct. Many of the doctors allegedly involved say they have been unfairly labeled as key players in these schemes, when in fact they also rely on the drug companies for information on potential uses of their products. Still, doctors should approach any off-label use (i.e. any use not explicitly approved by the FDA) with caution.

This issue is of particular importance for nursing home residents and their loved ones. Residents rely on full-time care and rely on the judgment of trained professionals. This position of trust obligates doctors and other medical personnel to make informed, impartial decisions about medications. Situations in which nursing home staff base decisions more on financial interest or even brand loyalty can lead to serious problems for residents.

The Maryland nursing home lawyers at Lebowitz and Mzhen assist people who have suffered injury because of improper or incorrect medications. Contact the firm today for a free and confidential consultation.

Web Resources:

Tracy Weber and Charles Ornstein, Doctors Avoid Penalties in Suits Against Medical Firms, ProPublica, September 16, 2011

Maryland Board of Physicians homepage

More Blog Posts:

Pressure Mounts to Reduce Use of Antipsychotics in Dementia Patients, Maryland Nursing Home Lawyer Blog, September 27, 2011
Nursing Home Residents Allegedly Drugged for Pharmacy Gain, Maryland Nursing Home Lawyer Blog, January 22, 2010
Johnson & Johnson Accused of Pharmacy Kickbacks, Maryland Nursing Home Lawyer Blog, January 21, 2010

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