We were flipping through The New York Times on Sunday, and two articles caught our eye.
Don’t worry; we won’t burden you with our view of the Iraq war.
The cover story of the Magazine is titled “Unhealthy Science: Why can’t we trust much of what we hear about diet, health and behavior-related diseases?” We can’t say that we agree with all of the article (because, if we did, certain sentences might be used against our clients), but for people interested in drugs and devices, it’s well worth a read. The article discusses the relative value of epidemiological studies and randomized clinical trials, and it explains why science often flip-flops as epidemiology generates a hypothesis that is widely reported in the press and later disproved by a randomized clinical trial.
The second story was on the front page of the Business secion. “The Dialysis Business: Fair Treatment?” profiles Kent Thiry and the business of which he is chief executive, DaVita. DaVita is a leading provider of dialysis services. The company administers the drug Epogen to treat anemia in dialysis patients, and the company receives more in reimbursement from Medicare and private insurers than it pays to buy the drug from Amgen. The Departments of Justice and Health and Human Services are investigating how DaVita bills for Epogen, and other folks say that overuse of Epogen can cause heart problems or blood clots in patients.
Although the articles are interesting by themselves, it was the point-counterpoint that struck us. The first article, a dispassionate analysis of scientific studies, will have no effect on pharmaceutical product liability litigation. Players in the field were already aware of the points raised by the article, and no expert would rely on The New York Times as a “learned treatise” that could support expert testimony. The article is interesting, but it doesn’t affect your scribes’ professional lives.
The second article, highlighting DaVita’s legal woes, is a horse of a different color. It’s entirely possible that plaintiffs’ lawyers will read the article and begin to lick their chops. They may well tell third party payors (that’s lawyer-speak for health insurers) that DaVita is under investigation, that the Feds will prove up the plaintiffs’ case, and that an insurer could slap a lawsuit on file, await the result of the investigation, and, depending on the outcome, reap a windfall.
The same lawyers may begin trolling for individual clients, trying to identify patients who received dialysis from DaVita and then developed heart problems or blood clots. One never knows, but if this medical issue transmogrifies into a mass tort, the lawyers who filed early and often will get most of the dough.
(Hey, DaVita! Those cases won’t be too bad. We’re talking about patients who were receiving dialysis. They plainly had pre-existing medical conditions, some of which predisposed them to heart problems. Plaintiffs will have a heckuva time proving causation. And, depending on what the warnings on Epogen say, and what’s been published in the scientific literature, you probably have a pretty good learned intermediary defense, too. We’re not trying to make trouble for you here; we’re the good guys.)
Our point (yeah, we had one before we got side-tracked there for a minute) is that the popular press plays a funny role in litigation. Dispassionate scientific pieces are irrelevant, because they’re aimed at a lay audience, and litigation is populated by experts. But articles that cover a company’s litigation woes, or propagate health scares, can have a massive and enduring effect. (Once the litigation starts, a later article in The Times ain’t gonna stop it.)
Perhaps that’s the nature of the popular press in a society that respects free speech. But responsible editors will understand the role they play and will carefully weigh the words they choose to print.