Some time ago I was involved in a horrible case in which our client was accused of paying kickbacks to the representative of a firm that bought products from him. In essence, the buyer got a hidden percentage of each payment that the firm made to our client. I hated the case with a passion, for a number of reasons, not the least of which was that there was, shall we say, substantial evidence that the claims were true. That case is long over, and good riddance, but I thought about it today when I read this article (Doctors Reap Millions for Anemia Drugs) in Today’s Times:
Two of the world’s largest drug companies are paying hundreds of millions of dollars to doctors every year in return for giving their patients anemia medicines, which regulators now say may be unsafe at commonly used doses.
The payments are legal, but very few people outside of the doctors who receive them are aware of their size…
Industry analysts estimate that such payments — to cancer doctors and the other big users of the drugs, kidney dialysis centers — total hundreds of millions of dollars a year and are an important source of profit for doctors and the centers….
Neither Amgen nor Johnson & Johnson has disclosed the total amount of the payments. But documents given to The New York Times show that at just one practice in the Pacific Northwest, a group of six cancer doctors received $2.7 million from Amgen for prescribing $9 million worth of its drugs last year.
It’s hard for me to understand how this sort of kickback scheme can be legal, though I’ll take the reporter’s word that it is. How is it any different than the kickback scheme in which my client was (allegedly) involved? The patients are equivalent to the firm that was being ripped off, the drug companies are the equivalent of my client, and the doctors are the equivalent of the guy getting the kickbacks, supposedly acting in the best interests of the patients, but secretly pocketing almost one third of their drug costs.
There’s no moral distinction, and it’s hard to see the legal distinction. Morally, there’s no question that the doctors have a duty to their patients that they are breaching by taking these payments, and, most likely, prescribing drugs that are inappropriate for the patient because there’s money in it for them if they do so.
There ought to be a law, and maybe there is. Were I an Attorney General of a small New England State, I would consider using the Unfair Trade Practices Act. The behavior certainly seems to meet the immoral, unethical, oppressive or unscrupulous standard.
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