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Representative Steve King (R-IA), during a House Subcommittee on Oversight & Government Reform hearing titled “DOJ’s Quid Pro Quo with St. Paul: A Whistleblower’s Perspective.” May 7, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Democratic lawmakers appeared reluctant Friday to further investigate drug ads by plaintiffs lawyers, though some Republicans, doctors and lawyers say the ads create serious health and safety problems.

In a hearing before the House Judiciary Subcommittee on the Constitution and Civil Justice, lawmakers sparred over whether lawyers’ TV commercials highlighting negative side effects of certain drugs are unethical and warrant increased regulation. The ads are regulated by state bar associations, but some doctors, lawyers and business groups argue it’s not enough because patients, frightened by the ads, sometimes stop taking their medication without consulting doctors. However, there have been few complaints of lawyer misconduct tied to the commercials.

“Today’s hearing presents a new topic for us, but it’s old wine in a new bottle,” said Rep. Steve Cohen, D-Tennessee. “It’s another attack on trial lawyers … and the beneficiaries of this attack on the plaintiffs bar are well-heeled corporate interests that would benefit greatly and would prefer probably not to [have] attorneys at all unless they were on the defense side.”

Dr. Ilana Kutinsky, a cardiac electrophysiologist, and Dr. Shawn Fleming, a vascular surgeon, both testified about patients they’ve cared for who stopped taking drugs after seeing the ads. Kutinsky pointed out that older patients may already be frightened, and an ad can push them to stop taking medications.

The fight over attorney drug ads is another issue that deepens the rift between the defense bar and plaintiffs lawyers. Lisa Rickard, president of the U.S. Chamber of Commerce’s Institute for Legal Reform, said Thursday the ads are “alarmist” and Congress is right to get involved. Committee Chairman Bob Goodlatte, D-Virginia, wrote letters to state bar associations in March urging them to require that ads include warnings to patients to consult a doctor before discontinuing medication. He also asked if complaints had been filed on the issue, though no association reported any.

During the hearing, the doctors suggested that consumers may not know how to file complaints, and also likely don’t realize when they should. Attorney ethics expert and lawyer Lyda Shely said that anyone can submit a complaint over the ads, including doctors, and that hundreds of complaints are filed against lawyers every day. She added that it’s not just consumers who complain, but also other lawyers.

Republicans also questioned whether attorneys should be held to a higher standard for false or misleading ads. Rep. Steve King, R-Iowa, likened the commercials to political ads, noting that even though there may be a “thread of truth” in them, they leave out “a whole ocean of information that’s necessary to evaluate.”

King also questioned why, if doctors are liable for malpractice when they prescribe the wrong drug, attorneys are not liable for their ads.

“If the misinformation from attorneys brings about death or injury, and doctors are paying for their professional errors, why aren’t attorneys paying for theirs?” King asked University of Oregon School of Law professor Elizabeth Tippett.

Tippett suggested lawyers may be liable under a common-law tort claim. Tippett, who advocated for greater self-regulation by attorneys, said that while the ads aren’t necessarily untruthful, she was more concerned about the frightening tactics used in the commercials.

The Chamber’s ILR released a survey this week that showed one in four Americans taking certain prescription medicines said they would stop immediately if they saw ads promoting lawsuits against the drug’s manufacturer. A Republican polling firm, Public Opinion Strategies, conducted the survey.

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