Wednesday, April 27, 2011

Government and Medicine: Legislative and Judicial Follies

I try--I repeat, I try--to construct eloquent blog posts as often as I write them, taking care to choose my words as I tiptoe through the minefields of cyberspastic hyperbole and vitriol. That said, I could do little more than utter "blech" at this news piece that the Massachusetts State House has voted overwhelmingly, as part of an "economic development" bill, to repeal a ban on gift-giving from pharmaceutical companies to physicians that had passed in 2008. For those who have been trapped in solid ice since, say, the mid-1930s and the heyday of the Henry Cabot Lodges and William Morgan Butlers, in Massachusetts, the House belongs to the Democratic party. So how does such a law that seems to once again encourage the wink-wink nudge-nudge relationship between docs and the pill-pushers--particularly when the same legislative body clamps down on labor's bargaining rights in an effort to rein in spending costs--get passed?

Amazingly, the answer appears to lie in...the dining & entertainment lobby. According to Garrett Bradley (D) of Hingham, the sponsor of the measure, the ban stifles business, hurting convention centers and "restaurants where companies typically hosted physician events and dinners." (NB--the quote is from the article, not a direct of Mr. Bradley, though I doubt he'd quibble if the line were attributed to him.) Never mind the fact that this sector of the Massachusetts economy appears to be doing reasonably well, with an increase in overall revenue compared to last year, the measure's backers appear to be saying that it's perfectly fine if a payola-style arrangement is in place, as long as the palms continue to be greased and the filet mignon gets served with the Cabernet.

Blogger-doc Dan Carlat has already staked out the Swiftian rhetorical territory with a delightful skewering of the follies, leaving me and others to play the straight guy. So here goes my best effort: no self-respecting physician compromises the health of his or her patients by allowing themselves to be manipulated by claptrap. There is ample evidence that gift-giving induces an attitude of reciprocation, lucidly-but-luridly described in such books as The Truth About Drug Companies and White Coat, Black Hat, regardless of the actual quality of the product, and that drug reps know this and seize on the vanity of physicians to play them for dupes. Drug companies, however beneficial their societal effects may (or may not always) be, have a responsibility to shareholders, whose primary or sole interest is in the generation of wealth. To anyone in any state of mind other than that of abject denial, this is a primary objective that is in direct conflict with the caring of patients. Thus, doctors cannot accept gifts of any kind from those whose job it is to sell drugs.

A related theme is being played out in the judicial branch of government, as the US Supreme Court is hearing arguments on a Vermont law that bars the commercial use of physician prescription patterns. Based on the early returns, and noting previous Court decisions that take a fairly broad view of "free-speech" rights (at least if you are a corporation), it appears that the law is destined for being overturned. I can't claim to be a legal expert and thus won't even begin to take a crack at the wrangling over the First Amendment, other than to note a certain puzzlement at what passes for "free speech" these days among the Court's "strict constructionist" wing. Did the Founding Fathers really have the selling of a doctor's prescription habits in mind when crafting the First Amendment? I'm thinking not, but I await the peals of derision from my philosophico-legal foils (and loyal readers!) such as Ted Frank, a conservative maverick (I'm not sure if "conservative" is the right word for him; I'm certain that "maverick" is) and who ranks as the second smartest person I have ever had the pleasure of knowing in my life. (And in case anyone might misunderstand, I'm not implying that I occupy the top spot; I doubt I crack even the top 75, and I don't have that many friends.)

Regardless of the legal principles at stake, Chief Justice John Roberts made his contribution to the follies by appearing to frame this as an argument of "restricting the flow of information to doctors," as silly a line that can be uttered in such an august house as SCOTUS. How would withholding prescription info from drug companies prevent them from making their pitch for their drug? How does this even remotely "restrict the flow of information"? The naivete exhibited by the Chief Justice is pretty remarkable (and shared, without surprise, by Justices Scalia and Kennedy). The "it's all data, it's all protected by the First Amendment" argument seems to only work when big business benefits, but not the other way around. The recipe to Coke is just data, too; somehow I don't think the Coca-Cola Corporation considers that to be something that your local Joe can just barge on in and demand. Pray tell, what's the difference?

A hat-tip to Carey Goldberg at WBUR's Common Health Blog, especially for her humoring me in my response of "blech"!


  1. Glenn? I'd agree with him ahead of me, but I'm surprised none of your professors made the cut.

    Anyway, what's going to doom the Vermont statute is its discriminatory rule; Vermont claimed that it was ok to regulate the speech for privacy reasons, but there's a carve-out in the statute to give the information to academic institutions without any limits.

    The reason pharma wants the data is that knowing a doctor's prescription patterns and how it varies from the norm helps the marketing reps to know what factual information would be most helpful to a doctor (yes, to also persuade her to buy more drugs from the rep's pharma, but there's a confluence of interest) Maybe a doc isn't aware of the most recent literature regarding Drug X, and if the prescription patterns are inconsistent with the literature, the rep can shoot over with the appropriate NEJM article.

  2. Separately, there's "strict construction" and there's "original intent jurisprudence," but the two don't always coincide. (A textualist would say the 14th amendment, literally read, applies to gender discrimination. Original intent followers might disregard the text to ask whether the Reconstruction Congress meant that result.)

  3. Of course it's Glenn! Though I'd pay a lot of money for ringside seats to see the two of you locked in battle a-la Time Lord Wrestling, I would. As for my professors, you forget that I was an English major, where many put on airs of brilliance but few--very few--come anywhere close to possessing it. Tom Bishop, a prof of mine while in grad school at Case Western, was terrifyingly brilliant, but he's the only one who leaps to mind. There are, of course, many extremely bright minds at the medical center where I work, and so, as in college, I continue to feel like an iggit as I make my way through the world.

    I am aware of the argument re: "what factual information would be most helpful to a doctor," but when I hear it my bullshit detector goes wild. It is the job of state Boards of Medicine, not drug companies, to set up requirements for continuing medical education so that docs are up to date. As for why Vermont would set up the law stacking the deck against Big Pharma in favor of academic institutions, I think we agree that that's one reason to doom the law. But I don't see any inherent right in anyone other than the state medical licensing board to know an individual doc's Rx patterns. Plus my understanding is that the state didn't forbid access to the information, only that there was an "opt-in" clause. And thanks for the explanation of strict constructionism versus original intent. I eagerly soak up your legal teaching points, among other things.

  4. This would be irrelevant if docs stopped seeing drug reps. I don't need someone with no clinical experience telling me what's good for my patients. And I can and do peruse the literature for myself.

  5. yeah thats right doc! as if you really cared for you patients.

  6. Why, thank you, Web Developers! Though your name sings out "Spam", your comment doesn't, so I assume you are a legitimate human being, and with your eagle eyes have uncovered my true lack of concern for my patients' welfare, hidden under the guise of empathy. I knew someone would catch on, eventually. Ah well. It's a good racket to generate income for my liquor habit--especially the reimbursements given to ID docs. Pass the bourbon, please...

    Caught red-handed, Billy