Transcripts For CSPAN3 Hearing Examines Drug Injury Advertisements 20170623

Sub committee will come to order. The chair thor rosed to we welcome everyone to the hearing on examining ethical responsibilities regarding attorney advertising and i recognize myself for an Opening Statement. Todays hearing will examine the ethical responsibilities to attorney advertising. I would like to start off by showing an ad. It already projected to the side and to the front for members. Go ahead with the ad, please. It may cause seerns internal bleegd. A manufacturer lijed at least 260 deaths to use since 2010. If you or a loved one took prodaxo and suffered from hem r rajing or death discuss your rights with an attorney. Call 1800baddrug. Ladies and gentlemen of the committee, anyone who has watched television in recent years has likely seen this ad or one like it. They include numbers like 1800baddrug, a list of injuries and the drug side effects. One thing is a warning about talking to their doctor before discontinuing use of the medication. Even if these ads provide a warning that is in low context at the bottom of the tv screen. Studies show they are reaching a broad audience. It states that nearly three quarters of americans say they have seen ads by law firms about pharmaceutical lawsuits in the last year. Three quarters of americans, thats well over 200 million people, the same survey found one in four people who see an actual trial lawyer ad regarding a medicine they currently take say they would immediately start taking the medicine without consulting the doctor. American medical association reported a similar effect. Patients were more likely to discontinue use of prescribed fda approved pharmaceuticals of seeing Television Advertisements that emphasize side effects while ignoring benefits that the medication is fda approved. Unfortunately these ads are having terrible consequences. A study reported that patients who were prescribed and discontinued taking it after viewing a negative attorney advertisement suffered serious injuries or have died. According to the author 75 experienced a stroke. Two passed away. These only account for those reported to the food and Drug Administration. There may be many more cases that have gone unreported and have also been the subject of negative advertisements. It is to explore what can be done to prevent more loss of life. I want to thank all of our Witnesses Today for their testimony and i look forward to your perspectives on this issue. Mr. Cohen. Thank you, mr. Chair. Like our hearing last week it presents advocates that make our country different from others as we have advocates to argue for us in court and the benefits of this attack on plaintiffs bar are well healed corporate interests that would benefit greatly and prefer not to be attorneys at all unless they were defense side. This committee has unfortunately the constitution and Sub Committee has dealt too much on enriching the rich and attacking rather than doing what we should be doing and respecting and advocating for the institution. Just this week nearly 200 members of Congress Filed a legal action which we have to resort to do for this Sub Committee and our full committee have not taken up any attacks on the constitution such as the clause, article one section nine and no foreign power, no king, no prints, no foreign state shall give a gift of any kind to somebody serving in the United States without the consent of congress and we know that the current president has taken hundreds of thousands of dollars from the government at his hotel here and at leases at trump tower from the saudis and chinese and gosh know what else and never asked for con sesent congress. He asked council could he accept an honorary citizenship. It was deemed so and he didnt accept it. Theres the difference. Many president s have asked for and then turned down and some even just small items. We are dealing with plaintiffs bar once again. Last week we had the government complain about regulation of business and ability to communicate with the public. It was robo call advocacy. It is one of the most hated forms of communication because attorneys were finding illegalities and calling and calling and pestering people and bothering people. So we now look to reduce that. Make no mistake this hearing may be framed of one of concern by Health Care Professionals by potentially harmful effects on drug cases to the public but in reality the aim is to protect companies from being held accountable for harmful drugs. Its consistent though with the Health Care Bill that this majority has given the country cha which is not a Health Care Bill and more about less about health care. This bill is clear why some would want to impose greater restrictions about the availability of Legal Services. They would face obstacles in doing it. We should be protecting the First Amendment and advertising is protected free speech. Only when it is falts or misleading may be prohibited. So far theres been little evidence to determine the attorney drug injury are false or misleading therefore attempts to further regulate is constitutional suspect at best. The Sub Committee is intruding on state sovereignty in the monothat of the majority side in the name of so called tort reform. Regulation of lawyers has followed in the authority of state Supreme Courts or state bars or states in general. Surely they have better use of its time than to simplement or to intimidate them and do some of the bidding. We have done that or are doing that on gun laws and taking that away when it suits the political convenience of that side. It is a bit rich to suggest we should seek to limit attorney advertising protecting consumers and Public Health spend to influence consumer choice. They serve the vital function about the dangers and availability of Legal Services for those who are injured. Yet i note why 114 million may have been spent on injury advertising that pales in comparison to 16. 4 billion spent on advertising on 2016 alone. Attorneys 6. 4 billion by Drug Companies. Thats the real threat to consumers is drug add veer adverti advertising. We shouldnt try to manipulate patient choices about what medications they should be taking. Our broadcast print and online media are full of pharmaceutical ads that are impossible to address everything from erectile dysfunction to constipation at any hour of the day even when children may be watching. Those are more important to be looked at and screened than drug advertising. Decisions about whether someone would take a particular medication should be left to the patient and consultation with a health care professional. They should not be influenced by advertisements and greed of Drug Companies telling you when youre in the moment use our drug. A lawyer a an important societal function injured by drugs of the avoil blt of legal ve course and where ads are actually falts or misleading. Congressman and congresswomen should just stay out of the way and protect the First Amendment. I yield back the balance of my time. I recognize mr. Goodlatter of virginia for his Opening Statement. Thank you, mr. Chairman. On march 2017 they sent a letters to the american bar associati association, 51 state bars including the district of columbia and two. Base on the responses we have received to so far it appears there are few if any reported complaints of lawyer misconduct regarding these commercials. The lack of come planlts does not diminish the fact that severe injury and death resulting from these commercials are being reported to the food and Drug Administration. I would like to read from a portion submitted for todays hearing, dr. Frank peacock who reported such case. He states my patient being 66 years old, female with a history of high Blood Pressure and diabetes has 4. 8 risk of having a stroke in the next dwleer would leave her unable to speak wearing diapers in a nursing home versus taking a bill every day with the risk of a fatal need blooed to of. 0009 per year. To summarize this patient had 4 4. 8 in medicine we call this a no brainer and picked the lower of the risk. I went to the sppatients bedsi. Usually is a five Minute Exchange about what would be the recommended treatment. I answered some of the questions, write a prescription and move onto the next patient. That is not how it went. I went to the bedside and told my patient her tests showed she had atrial fiblation. Instead of asking what is atray yall fib ruelation she said i know. The obvious next question is what anti coagulant are you taking . She couldnt answer me as she broke down in tears. She related a story that made me so angry that it motivated me to write this testimony today. Wednesday, four days before coming to my er she felt tired and weak and had a fluttering feeling in her chest. Her physician did an we lek troe cardiogram. He found the same results that i had, a controlled heart rate with a patient in having a massive debilitating stroke. She spent her about atrial fibrul fibrul fibrulation and gave her a prescription and discharged her home. On wednesday afternoon my patient went home and filled the prescription. All was well until thursday evening which while watching television she she saw the firs 1800baddrug commercial that implied that it was a dangerous drug. Having already taken it as instructed with dinner, she did not know what to do. She called her doctor and got an a answering service. She did not sleep that night. Friday came and she again called her doctor but he didnt have an appointment until the following week. She called the 1800 number again and got no instructions. She did not take her anti my p about midday. She took her prescription before she left. Nobody will know what would have happened had she waited to take her anticoagulant. Would she be dead from a stroke or in a nursing home at this very minute . What if it had been a different patient that just listened to the tv and didnt come to my e. R. . These attorney advertisements are having a real world impact. Not only do they create a barrier between doctors and patients, but they are endangering these patients lives. Thank the chairman of the full committee for his Opening Statement. The chair now recognizes the full Judiciary Committee Ranking Member, mr. Conyers of michigan. Top of the morning, witnesses, for coming. My colleagues without doubt most Prescription Drugs save lives. Yet its also a fact that some result in injury and death. Even properly prescribed medications cause on average almost 2 million hospitalizations every year. Worse yet, 128,000 people die from these medications annually, making Prescription Drugs the fourth leading cause of death in the United States of america. The statistics prove that Many Americans are injured as a result of taking even food and Drug Administration approved medications. Accordingly, attorney advertisements that truthfully inform consumers of the danger of such medications as well as the availability of Legal Services for those who have been injured by such drugs perform invaluable educational function for our society. Nevertheless, there are those who claim that these advertisements cause some consumers to stop taking their medications and argue that they must be more aggressively regulated. Before we take any such measures, we must keep a few points in mind. To begin with, truthful and nonmisleading attorney advertising is protected under the First Amendment in the constitution. Its well settled law that the constitution protects commercial speech, including attorney advertising. Only where there is a substantial government interest may regulation on attorney advertising be upheld. Those complaining about attorney drug advertisements do not contend that such advertisements are false or misleading under current law. In light of this, proposals to amendment or restrict attorney advertising may be unconstitutional. In addition, even if attorney drug injury advertisements could be considered false or misleading, there are already mechanisms to deal with the problem. Every single state has rules of professional conduct for lawyers that prohibit false or misleading advertising. And every state has a process by which consumers may complain about attorney conduct should they come across an offending advertisement. Ultimately, the onus is on physicians and other medical professions to be proactive in advising their patients about both the benefits and risks of medications. That burden should not be shifted to attorney advertisement advertisements that truthfully highlight the risk of those medications. Finally, we must view this hearing in the context of other efforts to limit or even deny access to justice for those armed by deif he can ty medic medical defective medical products. I just must note the hypocrisy of seeking to restrict advertising in the name of promoting Public Health and Patient Safety when the house will consider med mal practice legislation next week. That bill gives unjustifiably broad Legal Protection to Health Care Providers, including complete legal immunity for such providers in any Product Liability lawsuit. Concerning the provision of drugs or medical devices. Such protections for Health Care Providers will deny injured patients the ability to be made whole. Further regulation of attorney drug injury advertisements combined with enactment of medical malpractice bill would mean that consumers could potentially be denied full information about their legal rights and access to Legal Services concerning deif he canty medications on the front end and then denied their day in court on the back end. Without objection, so ordered. Now id like to introduce the witnesses. Our first witness is dr. Alana petinski. Second witness is dr. Shawn h. Fleming. Dr. Phle dr. Fleming. And sheely and tippett. Each of the witnesss written statements will be summarized into the record. I ask the witnesses to state their summary in five minutes or less. Theres a light in front of you. It turns to yellow in four minutes. Wed ask you to wrap up your testimony in a cogent way. Id ask if you would please stand to be sworn in. Raise your right hand. Do you swear that the testimony that youre about the give before this committee is the truth, the whole truth and nothing but the truth so help you god . Thank you. You may be seated. Let the record reflect that all the witnesses have responded in the affirmative. We now recognize our first witness. Please proceed shortly after your turn on your microphone, please. You are recognized. Chairman king, Ranking Member cohen and members of the subcommittee, i am a cardiac electrophysiologist. My goal today is to explain why attorney advertising related to medical treatment should be required to represent transparent, fair and balanced view of medical issues and should contain a clear disclaim their the ad is not presented by a medical professional. I am hear to offer the perspective of a concerned doctor. I was not paid to be here by a legal or Political Organization andly not receive a financial benefit of any kind. The facts that i share with you do not come from a survey or think tank. My testimony is based on the personal experience of a doctor who has witnessed the harm. Ive watched my own patients discontinue prescriptions and medical treatments because they were concerned by advertising. The misrepresentation of facts made in mass tort ads causes fear in patients and can lead to treatment noncompliance. Irresponsible attorney advertising undermines the patient physician relationship and completely disregards evidence based medical practices and recommendations from the fda. To offer an idea of what i have seen, i will describe an incident involving an elderly patient of mine. To reduce her likelihood of stroke, i recommend that she begin a regimen of anticoagulation medicine. All medicines have side effects and its the job of the physician to counsel patients about the side effects and why they are outweighed by the benefits of the medicine. After several Office Visits, involving long discussions, i built a Strong Enough relationship with the patient that she agreed and she understood that the risk of her stroke was high and that the benefit of treatment with an anticoagulation agent significantly outweighed her bleeding risk. She agreed to take the medicine. She did not want to have a stroke and lose her independence. Then three years later she presented to the hospital with a massive stroke. I was confused and i spoke with her family. I was concerned that my treatment failed her. They informed me that two weeks prior to her admission she received a flyer in the mail from an attorney warning her that her anticoagulation medicine could cause massive internal bleeding and death. She didnt want to die so she stopped her medicine. She planned to discuss it with me at her next appointment. Unfortunately by then it was too late. She was under my care for nearly eight years. After finally convincing her to go on anticoagulation she stopped the medicine after receiving a flyer from a solicitous attorney who likely has no medical background. Leading medical societies as well as the fda recommend countering this risk by initiating therapy with anticoagulation that is the standard of care. I discuss with my patients that the anticoagulants hold some risk of bleeding, but those risks are substantially outweighed by the stroke prevention. Because lawyers are held in high esteem they can eradicate sound medical advice with a single advertisement despite no medical training. Patients often do not recognize the solicitous nature of a tort ad. They do in the consider the financial motive. They assume an attorney must have their best interests in mind. Im not a lawyer so im not here to argue whether regulation of lawyer advertising infringes on freedom of speech or whether advertising is sufficiently regulated by the state Bar Association. I can only communicate the actual events i see on a regular basis. While im not a lawyer, i do understand that all Constitutional Rights are subject to limits, including the right to freedom of speech. Certainly freedom of speech does not allow anyone, including lawyers, to make misrepresentations or false and misleading ads at the expense of the american public. In closing, i ask the committee consider the following key issues. First, attorney advertisements are not currently required to present a fair and balanced view. They do not have a disclaimer stating they have no medical background. Because of this lack of balance, advertisements have the potential to scare patients into stopping important therapy. These advertisements undermine the patient physician relationship and instill doubt and mistrust. These advertisements undermine current standard of care. They are directly advertising against medications determined by the fda to be safe and effective without any communication as to the risk of abruptly stopping these treatments. I urge the committee to ensure that all attorney advertising related to medical treatments present a fair and balanced view of the medical issues and i thank the committee for its attention to this critical issue and for allowing me the opportunity to share my experience. Thank you. Now the chair would recognize dr. Fleming for your testimony. Chairman king, Ranking Member cohen and members of the subcommittee, i thank you for the opportunity to be here. My name is shawn fleming. I have the privilege of practicing as a Board Certified vascular surgeon in winstonsalem, north carolina. Im required on occasion to perform emergency surgery for people who are bleeding to death and perform emergency surgery on people who have suffered clots. Warfarin has always been the standard anticoagulant that was used for many years. Although it is cheap, it requires constant monitoring and dose adjustment. The introduction of this newer class of anticoagulants several years ago has simplified the management of patients at risk for blood clots. As with warfarin, these newer medications do carry a small risk of bleeding that must be weighed against the benefits they provide to the patient. This is not a new phenomenon and its one that all prescribers take into account. Several years ago i became aware of these legal advertisements targeting these medications specifically when i began noting regular, frequent and strong resistance from patients that were prescribed these medications. When i inquired about the source of their resistance, i was frequently told about the commercial and the fears of dieing from the drug. Not since i began training have i seen patients so regularly fear recommended treatment from a medical professional. Since these commercials first appeared, ive spent countless time in the clinic trying to convince patients of their safety. Not long ago i encountered a patient in my surgicalimultaneoe care of an unrelated medical condition, a pulmonary embolus. I noted that he had been recently diagnosed with this problem and was asked to be placed on xarelto. He said he would not take the medication because of a commercial he had seen on television. I did spend some time trying to convince him otherwise but he refused. Several weeks later he died of a pulmonary embolus. Its my opinion that the content of these advertisements imply a qualitative judgment about these medications thats just not true. When you say call 1800baddrug that implies its a bad drug. These advertisements imply a false choice where patients can either decide not to take this medicine and be just fine or take the medication and potentially spontaneously bleed to death. Thats actually not the case. If they dont take the medications, they could die and are more likely to die, but that is not ever mentioned in these commercials. While i certainly dont presume to know the intention of the commercials, based on my direct interaction with numerous patients, i can testify with confidence that patients perceive these commercials as medical advice and they are often in direct conflict to if they believe i have prescribed them a drug that may kill them, then six months later when i need to give them a different drug, theyre resistant. When i tell them i need to put them to sleep and do surgery on them, theyre resistant because they no longer trust me. Each of these new medications carry a significantly lower risk of bleeding, yet ive seen no commercials targeting the generic drug warfarin. Multiple levels of oversight and review led to the availability of these anticoagulant which is ultimately have saved lives over the course of my career. The positive benefit of anticoagulants is significant. My patient verss have benefits these therapies. Creators of these commercials should be held to the same standards as physicians and Drug Companies. Again,i appreciate the opportunity to speak with you today. Thank you very much. Ms. Sheely . Thank you, mr. Chairman, Ranking Member cohen, Ranking Member conyers and members of the subcommittee. Thank you for inviting me today to talk to you about lawyer advertising and regulation of lawyer advertising. Im speaking today in my individual capacity. I am not representing any organizations even though im a millib member of three state bars, arizona, the district of columbia and pennsylvania. For the past 24 years i have practiced exclusively in lawyer ethics, advising over 1500 law firms around the country on legal ethics matters. I did want to note for the record i dont advise any of the firms that well be discussing today regarding any of these commercials. So i have not been paid for any of my testimony. I am here on my own nickel. In regulating lawyer advertising, i know many of you on the subcommittee are lawyers but i thought it useful to summarize what the current status is nationally. Lawyers are regulated in most jurisdictions by the highest court in each state. Were not selfregulated. Were regulate bd by the ju di judiciary. Were regulated by the rules of professional conduct. Those rules prohibit false and misleading advertising by lawyers. Any communication by a lawyer is prohibited if its false and misleading. In fact, we are so highly regulated even my pens are regulated. I have to have my name and Contact Information on my pens because thats considered a form of lawyer advertising. So in the Current System that we have of state regulation of lawyer advertising, what happens is if the state regulators wlrks whether it be a Bar Association or a committee of the highest Judicial Court receives a complaint about lawyer advertisement, they investigate. They determine whether there is actually something in the ad that is false and misleading. What they do when they receive that ad is investigate and then the lawyer who is responsible for that advertisement may be disciplined. They could be disciplined for violating the rules of professional conduct if the ad is deemed to be false and misleading. That discipline may be changing the ad to add a disclaimer if appropriate or they could be reprimanded or even suspended if thats found to be a violation. As representative conyers mentioned in his opening remarks and Ranking Member cohen, the First Amendment protects those ads. Next week we actually celebrate the 40th anniversary of bates versus the state bar of arizona which was the Seminal Supreme Court case that reminded everybody that commercial speech including lawyer ads is protected by the First Amendment. So when that information is protected by the First Amendment as has been indicated already in the opening remarks, you have limited restrictions on commercial speech. Not only is it protected by the First Amendment, but and i believe my remarks indicate that the federal trade commission over the years has sent letters to state bar regulators on the general topic of advertising indicating that overly broad restrictions of factually accurate commercial speech actually is anticompetitive and may have the detrimental effect of increasing the prices charged to consumers. I have to tell you in the 24 years that ive been advising lawyers on legal ethics matters, including ten years at the state bar of arizona as the director of ethics, ive never once heard a consumer complaining at an advertisement. Actually i have not seen any doctors submit advertisements to the state bar complaining. And you all know that everybody has standing to complain about a lawyer ad. It does not have to be somebody whos harmed. Anyone can submit to the state bar or your appropriate Regulatory Authority a concern about a lawyer ad. So that state regulator can determine whether additional safeguards need to be put in place. Now, all of this information is anecdotal. The association of professional responsibility lawyers conduct add survey in 2015 which i incorporate as part of my remarks. That survey of all state bar regulators confirms that consumers dont complain about being confused about lawyer advertising. And this is not that consumers dont know they can complain, because consumers do complain a lot about other types of lawyer conduct p conduct. Theyre not hesitant to complain if they are concerned about the conduct. I ask that this committee simply submit any ads their concern th concerned about to the appropriate state regulators so they can take appropriate action because the Current System does work in regulating against false and misleading advertising. Thank you for your testimony. Chair would now recognize professor tippett for her testimony. Thank you, chairman king. Thank you, Ranking Member cohen and members of the subcommittee for the opportunity to testify today. My name is elizabeth tippett. Im a faculty member at the university of Oregon School of law. I want to preface my comments by saying im a member of the bar in new york and california and oregon and i have a great deal of respect for mass tort lawyers and the Public Interest that they serve. At the same time, its my strong belief that drug injury advertising is an important issue of Public Health and Consumer Protection. Ive shared in my written testimony the Scientific Evidence we have to date on how these ads might be affecting the way people make medical decisions. First, i wanted to share a personal story with you. The reason im interested in these ads is because of a phone call i received from a Family Member several years ago. The Family Member told me they were cancelling a surgery because of an attorney ad that they saw on television. It was a drug injury ad. I had to explain to the Family Member that it was from a lawyer and this is a lawyer whos looking for clients and thats why they had that ad. I asked, does your doctor think you should proceed with the surgery . And the Family Member said yes. I said, look, at the end of the day youre going to have to decide whether youre going to believe this lawyer over your own doctor. The Family Member ultimately proceeded with surgery but i wondered are there other families affected by these ads too and as lawyers are we upholding our responsibility to communicate this Important Information in the most responsible possible way. Im also married to a doctor that treats Cancer Patients and i hear from his colleagues and other doctors in the community about how these ads affect their practice and their conversations with their patients. And when the American Medical Association issues a statement saying these ads are important and we need to Pay Attention to them, we need to take that seriously as lawyers. We need to take that seriously. I want to be clear that it is not my position that drug injury advertisements are inherently bad. I think informed consumers are better than uninformed consumers. When individuals are harmed by a drug, they have a right to seek counsel and to bring a claim against the Drug Companies. But we cannot stick our heads in the sand and act as though these ads are the same as an ad for soap or candy bars. Not just people who are harmed by the drug but also people who might be taking the drug or eligible to take the drug in the future. These advertisements almost always involve drugs that are still on the market. One of my studies looked at the content of these ads. Many of these advertisements were transparent about the fact that they were from a lawyer and they were trying to find people for a legal claim. Some of them were not. Some of the ads looked essentially like disstoepian th advertising is to help harm consumers and it has a side effect on everybody else who is watching it. I think we need to take these behavioral side effects seriously, understand them better in the same way we take seriously the medical side effects of Prescription Drugs. Now, as i explained in my testimony, the drug injury Advertising Market is complex because the entities that sponsor the advertising are dem different from the lawyers that litigate these claims. My testimony includes a number of suggestions on how we can make the Advertising Market more transparent and provider better guidance to advertisers on best practices. Part of the solution may be to have an impartial Rating System for advertisers so that the lawyers litigating these claims can vote with their dollars and choose the referrals from advertisers that are the most ethical. As attorneys, we have the privilege and duty of selfregulation and i dont think we have taken that duty seriously enough. We need to invest more time and resources into understanding and addressing this problem. Thank you for the opportunity to testify today. Thank you, professor tippett. Well now proceed with the questions from the members of the panel. Ill recognize myself for five minutes. In that case, we will recess and come back to this hearing. Were voting on the floor, so this committee will now recess and return shortly after we conclude our votes. The house finishing up their work for the week. The senate is not in session today. Yesterday Senate Republicans released their Health Care Law replacement. We have posted that legislation online. We expect debate next week after the Congressional Budget Office scores the legislation. Debate likely all next week in the u. S. Senate. When that legislation was released yesterday, Senate Democratic leaders responded. Well show you that briefing now. Okay. High, everybody. S sorry were late. It is not senator murrays fault. Make your own deductions. I want to thank both of them, our Ranking Members on health and finance for doing the fabulous job they are doing. Now, when the white house passed their Health Care Bill, a bill that President Trump called mean, i thought it wouldnt be possible for the Senate Republicans to conjure up a bill even worse than that one. Unfortunately, that is what they have done. Meaner. Do i have to color it in . Yeah, you do. That stands for emergency room too. Hows that . Right there, meaner. Another career as an artist. Okay. The Senate Version of trumpcare is even meaner than the house bill. Theres a lot to unpack in this bill, but its general outline is very simple and very clear. Theyre getting up and saying theres a draft, but i asked Mitch Mcconnell on the floor is there anything that i said, which ill say now, that is not in that draft . And he just sat down. He didnt answer. So my guess is its all in there. The bill takes dollars out of health care for millions of americans and puts them right back in the pocket of the wealthy. It cuts health care for those who need it most, just to give a tax break to those who need it least. Senate republicans with this bill are proposing to defund planned parenthood, to drastically slash medicaid which helps meddle class families with loved ones in a nursing home and sends those dollars to the very richest people in america. Senate democrats have been pouring over the bill now that its come out from behind closed doors and here are just a few of the things that this bill will do. First, it will cause Health Care Costs for middle class and working families to go up by cutting back on tax credits and making americans pay even a bigger percentage of their income for their premiums. Theyre going to send costs soaring. Second, the bill will kick millions off medicaid by making even deeper cuts than the house bill. If youre a middle class family with a loved one in a nursing home, the cost of that care is going to go up. Third, it abandons people with preexisting conditions, putting at dire risk Maternity Care, Mental Health coverage, by allowing more states even more latitude to get out of covering essential health benefits. Fourth, it defunds planned parenthood, making it harder for millions of women to obtain the health care they need and deserve. Why are they doing all this . To provide a giant tax break to the wealthiest americans. Simply put, the bill will result in higher costs, less care, millions of americans will lose their health insurance, particularly through medicaid. Its every bit as bad as the house bill, in some ways even worse. The president has said that the senate bill needed heart. The way this bill cuts health care is heartless. The president said the house bill was mean. The Senate Bill May be meaner. The Senate Republican Health Care Bill is a wolf in sheeps clothing. Only this wolfs teeth are even sharper than in the house bill. Somewhere in america, mr. President , theres a family who takes a trip each friday to visit grandma or grandpa at a nursing home, who sacrificed all of their savings to pay for their health care until they had no more savings. Now they rely on medicate to help pay the cost of longterm care in the nursing home. Somewhere in america, President Trump, theres a father who is eaten up inside watching his son struggle with opioid addiction, who knows in his heart that his son would be able to go on and live a healthy and fulfilling life if he could only afford treatment to get him out from under the devastating addiction. Somewhere in america, theres a parent whose child has cancer, a mother and father who stay up late at night worried that their insurance will not be available or run out before their family needs it most. In that america that my republican friends envision with this Health Care Bill, those americans and many more beside might not get the coverage they need. We live in the wealthiest country on earth. Were proud of it as we should be. But surely we can do better than what the republican Health Care Bill promises. Every american should be asking their republican senators one simple question this weekend. Why do the wealthy deserve a tax cut more than we deserve health care . Senator murray. Senator schumer, thank you. Today it has really become abundantly clear why, exactly why Senate Republicans have been hiding this trumpcare plan from patients and families, from democrats and even from many republicans, because based on what we are now learning, their trump care plan is every bit as bad as what the house passed. It is mean, to quote President Trump, meaner. It is heartless and it is an enormous broken promise to people across the country. Theyre ashamed of their plan, i believe, and rightly so. After seven years of refusing to work with us as democrats on actually helping families get Better Health care of obstructing progress, playing partisan political games even when it hurt their own constituents, what republicans leaders have put forth is truly shame fuful and it needs to be stopped. It speaks volumes that only today with just days to go before they plan to vote on their trump care bill, did Republican Leaders think it might be a good idea to release their plan which could impact the health and wellbeing of people nationwide and nearly a sixth of their economy just today. Now of course Senate Republican leaders have done Everything Possible to prevent people from seeing their version of trump care. It has been truly unprecedented. There have been no hearings, no scrutiny, no public input and its clear why, because they did promise to lower Health Care Costs. And this plan will actually raise them, especially for seniors and those with preexisting conditions. They promised not to pull the rug out from under patients. This plan will take away coverage. They said that under their bill, no one would be worse off. Well, tell that to a woman who is going to have to pay as much as a thousand dollars extra for Maternity Care or will have to see her planned Parenthood Center shutter. They said their bill would protect patients with preexisting conditions. This plan is a back doorw way t put those patients fate in the hands of insurance companies. The Senate Republican trump care plan is every bit as bad as the version patients and families rejected in the house. Let me be very clear. If republicans jam through this plan, they will own the consequences. Now, i know many Senate Republicans have said they are not happy with this secret process Republican Leaders have been conducting. They want more time to review the plan and they understand what it means for the people they serve. My message to each of them is saying youre unhappy is not enough. Saying youre frustrated is not enough. You have the power to do something about it. I urge my republican colleagues, join democrats, tell leader mcconnell you want more time and you want an open debate. Do the right thing for patients and families like those that have come to the capital to make their voices heard all of this week. All of those people who have called and emailed and posted on social media who deserve the opportunity to fully scrutinize this plan. We call on those republican who is just say theyre frustrated and this is a bad process. Do the right thing. Tell leader mcconnell to stop. Thank you. Thank you. The leader and senator murray have said it very well. Im just going to make a couple of extra points. In my view, the Senate Republicans are trying to con americans into thinking that they are fixing problems here when in fact what theyre doing is causing new ones. The reality is they basically doubled down on everything that the American People rejected the first time around. And whats clear and we saw it in the discussion on the senate floor this morning is that Senate Republicans are going to keep telling americans theyre fixing their health care right up until the second when it gets taken away. The president said this was all about finding heart. That was what he really wanted to see in this effort in the senate. It doesnt strike me as heart to put at risk not just seniors who depend on Nursing Homes, but let me lay this out because this is my background. If you have a baby boomer, for example, who has had a stroke or maybe early onset of alzheimers, they are going to find it very difficult to afford longterm care and this bill is going to make it harder for them to get medicaid. Its not just seniors and its not just baby boomers but its kids with a special needs, disabled folks. I mean, thats what this country has always stood for, that we would be there for folks who didnt have clout, folks who didnt have big powerful lobbies on k street. We are not going to turn our back on them. I want to close with two last points. One deals with substance and one deals with a matter you heard about on the floor. The republicans have tried to twist and distort a provision that i wrote in the Affordable Care act to allow states to offer innovation waivers. And there are very strong Consumer Protections in this so that states are given the right to do better under current law. What republicans are clearly trying to do is to gut those Consumer Protections that we insisted on and really turn back the clock and strip americans of their rights. One last point deals with this morning, there were comments made to the effect that somehow democrats were disinterested in working in a bipartisan way. Thats what i made my focus, my time in Public Service is working in a bipartisan way and our colleagues very much on the finance committee wanted to work in a bipartisan fashion with respect to the Affordable Care act. We know there are ways. And the leader has outlined this with respect to the private Insurance Market in which we can strengthen it. Not once have i or my colleagues been asked by a single republican to work on this bill or discuss fixes, bipartisan fixes to the Affordable Care act. The statement this morning that democrats refused to work with the other side is not just a fiction, it is a gross fiction. You probably get my sense of the drift on that. One point id add. They put reconciliation in on january 4th. They put in the budget they dont want republicans sorry they put in the budget they dont want democrats so work with them on january 4th. So much for bipartisan ship. Green tie. You mentioned that your concern is that this bill does not protect coverage for preexisting conditions. Can you talk about that a little more in specificity and why you believe your read of the bill my read of the bill is very clear, that people will not have the protections of preexisting conditions. There are opt outs in there. So well go back to the time when people want to buy insurance and find out that it doesnt cover what they thought it did. And believe me, people dont want to go there. Or they will not cover preexisting conditions. In one way by not covering them, in another way by charging them more. So all of a sudden you find out if you want to buy maternity coverage or Mental Health, youre going to have to pay as much as a thousand dollars for Maternity Care to get that coverage. That is not what we have today. Theyre taking away coverage for people. One of the provisions in this bill are propping up stability in the markets. They put tens of billions of dollars over the next four years for states and counties where they say insurers have left. How would you address that issue where those states or counties dont have those first, they dont need it in the bill. Its current law. They can do that right now. So its nothing new. Second, you cant destroy the whole foundation and then say youre going to patch a hole in the wall. Its just the whole construct will collapse around people who need health care and a small amount of salve isnt going to help. Its not close to enough. This is a nasty bill and theyre trying to cover it up with Little Things here and there. So, you know, people states wont require those states that asked for additional medicaid wont be required to drop out instead of 2020 later. But they start cutting medicaid immediately. Theyre trying to disguise if they had the courage of their convictions, it would be a totally different bill and theyd say, yeah, were cutting medicaid. We dont think the government should be involved. Thats what they really bhooeli. They know the American People dont agree with that so they come up with these little subterfuges. States can keep the expansion if they want, they just have to pay more for it. It speaks for itself. States are going to pay more for it and well have more analysis on this shortly. Overall the medicaid cuts are deeper. This whole construct, this whole arrangement is set up to try to give people a sense that they have fixed all this stuff from what went over so badly with the American People. And the reality is that on key issues like medicaid thats why i mention the kids and the baby boomers and all of those who are walking on an economic tight rope, overall the cuts are going to be deeper. I think people who have coverage say to help their Senior Citizen parents in Nursing Homes arent going to say, well, maybe the states will give it to us after the feds cut it off. Thats small consolation. On the medicaid, both parties have really been talking about entitlements reform. There seems to be a bipartisan desire for it but theyre never been able to do it. Do you think the Medicaid Program needs to be changed . Is there a way to do it theyre not trying to change it. Theyre just trying to cut it. Were always willing to look at reforms to make it more efficient and effective. This is not reform. If you talk to some of the people the most conservative, they dont believe there should be medicaid at all and this is a step to eradicating it. Not only are we open to reforms, but democrats, if you look at the last few years, have been very supportive of the idea of introducing a bigger role for the private sector in medicaid. We have been there and that was why listening to all this about how democrats dont give a whit about working in a bipartisan way is just a fiction. On your point, we have a history of working with republicans to bring the private sector into medicaid. Democrats have talked about wanting to improve obamacare. Why havent democrats put fourth their own plan . We have. We sent a letter saying here the changes we propose to make aca better. What do you propose to make it better. We got no answer. President trump just said theres no tapes. Do you have a response to that . He did, really . So that briefing with Senate Democratic leaders took place yesterday. After Senate Republicans release what had theyre calling a discussion draft of their Health Care Law replacement. The Congressional Budget Office will score the bill by early next week when Senate Floor Debate is expected to begin. Weve posted the bill at cspan. Org. Follow live Senate Coverage next week on cspan 2, online at cspan. Org and on the radio app. On this hearing on the impact of Prescription Drug impact on patients is currently in recess for votes on the house floor. Well continue live coverage here on cspan 3 when members gavel the hearing back in. Until then well show you a portion of the hearing from earlier, beginning with Opening Statements from Committee Chair steve king. Anyone whos watched television in recent years has likely seen this ad or one like it. They include a toll free number like 1800baddrug, visuals of an injury and a list of the drugs side effects. One bit of information thats not always included is a warning to patients about talking to their doctor before discontinuing use of the medication. Even if these ads do provide a warning in tiny low contrast text at the bottom of the tv screen. Studies show these ads are reaching a broad audience. A recent survey states that nearly three quarters of americans say they have seen ads by law firms about pharmaceutical lawsuits in the last year. Threequarters of americans. Thats well over 200 million people. The same survey found that 1 in 4 people who see an actual trial lawyer ad regarding a medicine they currently take say they would immediately stop taking the medicine without consulting the doctor. The American Medical Association reported a similar effect. Patients were more likely to discontinue use of prescribed fda approved pharmaceuticals after seeing Television Advertisements that, quote, emphasize side effects while ignoring the benefits of the fact that the medication is fda approved, close quote. Unfortunately, these ads are having terrible consequences. A study published in the heart rhythm journal reported that patients prescribed xarelto and who discontinued taking it after a negative attorney advertisement sufficieadvertis advertisement suffered serious injuries or have died. Two patients passed way a, including a 45yearold man. There may be many more cases that have gone unreported for this drug or many other drugs and medical devices that have also been the subject of negative attorney advertisements. Todays hearing is to examine the effects of these advertisements and to explore what can be done to prevent more loss of life. I look forward to your perspectives on this issue. The chair recognizes mr. Cohen of tennessee for his Opening Statement. Mr. Cohen. Thank you, mr. Chair. Like our hearing last week, todays hearing presents a new topic for us but its old wine in a new bottle. Its another attack on trial lawyers, advocates that make our country differ from others as we have advocates to argue for us in court. And the beneficiaries of this attack on the plaintiffs bar are wellheeled corporate interestsle that would benefit and prefer not to be attorneys at all unless they were defense side. And this committee has unfortunately the constitution and subcommittee has dealt too much on enriching the rich and attacking plaintiffs bar. Rather than doing what we should be doing in respecting and advocating for the constitution. Just this week nearly 200 members of Congress Filed a legal action to resort to do for this subcommittee and our full committee have not taken up any attacks on the constitution such as the emoluments clause article 1 section 9 and no foreign power, no king, no prince, no foreign state shall give a gift, emolument of any kind to somebody serving under the United States without the consent of congress. And we know that the current president has taken hundreds of thousands of dollars from the saudi government at his hotel here, and in leases at trump tower from the chinese and gosh knows what else and never asked for consent of congress. Job kennedy was offered an honorary citizenship by his native land or ancestors native land ireland and he asked counsel could he accept an honorary citizenship. He didnt accept it. Theres the difference. And many president s over the years asked for and then turned down and some even small items but no, were dealing with attacking the plaintiffs bar. Last week we had the majority complaint about government regulation of business and businesss ability to communicate with the public, somewhat robo called a vo cassie if you can believe we have robo called a vo cassie maybe one of the most hated forms of communication created. Because attorneys were finding illegality and calling and calling and pestering people and bothering people. So we now look to reduce that more. Make no mistake this hearing may be framed as one of concern by Health Care Professionals about the potentially harmful effects of attorney advertising on drug cases to the public but in reality the aim is to protect companies from being held accountable for harmful drugs. Its consistent, though w the Health Care Bill that this majority has given the country which is not a Health Care Bill and which president obama has correctly said is more about tax breaks for the rich and less about health care. This bill is its clear why some would want great ert about the availability of Legal Services. But they would face no obstacles in doing it ironically the First Amendment which we should be concerned about as the Constitution Committee and we should be protecting the First Amendment and advertising is constitutionally protected free speech. Only when the advertising is false or misleading may it be prohibited and only limited circumstances may states impose regulatio regulations. So far there is little evidence to determine that attorney drug injury advertisements are false or misleading therefore attempts to regulate these advertisements certainly constitutional suspect at best. The subcommittee is intruding on state sovereignty, in the mantra of the majority side, in the name of so called tort reform. Regulation of lawyers traditionally followed in the authority of state Supreme Court or state bars or states in general. Surely the legislature has better use of its time than subplant aba on matters left to state administration or attempt to intimidate them to do some of its bidding. Weve done that on or doing that on gun laws taking that away from the province of the states when it suits the convenience of that side. It is a bit rich to suggest that we should seek to limit attorney advertising in the name of protecting consumers given the enormous amount spent. Lawyer drug injury advertisements serve the vital function of educating the public about the dangers of certain medications. And the availability of Legal Services for those who are injured. Yet i neat while 114 million may have been spent on attorney drug advertising that pales in comparison to the estimated 6. 4 billion spent by Drug Companies on advertising in 2016 alone. 114 million by attorneys, 6. 4 billion by Drug Companies. Thats the real threat to consumers is drug advertising, getting people to want drugs and go to the doctor and say like huie lewis in the news, i need a new drug. We shouldnt try to manipulate patient choices what medications they should be taking. Our broadcast print and online media are full of pharmaceutical ads and its impossible to escape ads for medication and address everything from erectile dysfunction and a 4hour problem to constipation at any hour of the day. Even when children may be watching. Those are areas more important to be looked at and screened than drug advertising. Decisions about whether someone should take a particular medication including the balancing of risk and benefits of doing so should be left to the patient and consultation with a health care professional. They should not be influenced by advertisements and the in8 isable greed of Drug Companies telling you when youre in the moment. Use our drug. Truthful and constitutionally protected lawyer advertising performs important societal function and informing people injured by drugs of the availability of Legal Services and legal recourse. And where ads are false or misleading state bars are equipped to take action. Congressmen and Congress Women should stay out of the way and protect the First Amendment. I yield back the balance of my time. Thank the gentleman from tennessee and now recognize chairman of the full committee for his Opening Statement. Thank you, mr. Chairman. On march 7, 2017, this committee sent a series of letters regarding the topic of todays hearing to the american Bar Association, 51 state bars including the district of columbia, and two companies that aggragate plaintiffs for law firms. Based on the responses we received so far from state bars it appears there are few if any reported complaints of lawyer misconduct regarding these commercials. The lack of complaints does not diminish the fact that severe injury and death resulting from these commercials are being reported to the food and Drug Administration. I would like to read from a portion of a statement submitted for todays hearing dr. Frank peacock of houston, texas who reported one such case. He states, my patient being 66 years old female with a history of high Blood Pressure and diabetes has a 4. 8 risk of having a stroke within the next year, that would leave her debilitated unable to speak wearing diapers in a nursing home for the rest of her markedly shortened life versus taking a pill every day with a risk of a fatal bleed from anticoagulation of. 0009 per year. To summarize this patient had a 4. 8 annual stroke risk vers versus. 0009 annual fatal bleeding risk. We call this a nobrainer. And pick the lower of the risks. So i went to the patients bed side to have what i thought would be a relatively straight forward conversation. Usually this is a 5 Minute Exchange about what Atrial Fibrillation is and what would be the recommended treatment. I answered some of the questions, write a prescription, move on to the next patient. That is not how it went. I went to the bedside and told my patient that her test showed she had Atrial Fibrillation. Instead of asking me the question what if is it, she said, i know. So, if she had Atrial Fibrillation the next question was, what anticoagulant are you taking . She couldnt answer me as she broke down in tears. When she could talk she relate add story that made me so angry it motivated me to write this testimony today. Wednesday, four days before coming to my er she had felt tired and weak and had a fluttering feeling in her chest. She went to her physician who did an electrocardial gram and found the same results as i had that a controlled heart rate in a patient with a high risk of having a massive debilitating stroke, he spent 30 minutes teaching her, the risks t benefits, the treatment options, answered questions, then gave her a prescription fand discharged her home. On wednesday afternoon my patient filled the prescription, went home and took it. All was well until thursday evening which while watching television she saw the one, the first 1800bad drug commercial that implied that the drug was a dangerous drug. Having already taken it as instructed with dinner she did not know what to do. She called her doctor. But got an answering service. She called the lawyer firm who was glad to take her information but offered no advice. She did not sleep that night. Friday came and she again called her doctor but he didnt have an appointment available until the following week. She called the 1800bad drug ad number again but got no instructions. What to do, petrified with fear she did not take her anticoagulant med that night. On saturday morning in my er i spent an hour talking with this patient. This was an extremely educated intelligent woman who absolutely felt abused by our system. Her physical of many years prescribing a drug to save her life and lawyers coming into her house by way of her television to destroy the doctor patient relationship and prompt her to engage in behavior that could be tatele. My patient left my er about midday, took her pill before she left. Nobody will know what would have happened had she waited to take her anticoagulant, would she be dead from a massive stroke or in a nursing home at this very minute . What if it had been a different patient that just listened to the tv and didnt come to my er . Dr. Peacocks statement shows that these attorney advertisements are having a real world impact. Not only do they create a barrier between doctors and patients, but they are endangering the patients lives. I thank 4 witnesses for appearing and i look forward to your testimony. I thank the chairman of the full committee for his Opening Statement and the chair now recognizes the full Judiciary Committee Ranking Member mr. Conyers. Thank you, mr. Chairman. Top of the morning, witnesses, for coming. My colleagues without doubt most Prescription Drugs save lives. Yet its also a fact that some result in injury and death. Even properly prescribed medications cause, on average, almost 2 million hospitalizations every year. Worse yet, 128,000 people die from these medications annually making Prescription Drugs the fourth leading cause of death in the United States of america. These statistics prove that Many Americans are injured as a result of taking even food and Drug Administration approved medications. Accordingly, attorney advertisements that truthfully inform consumers of the danger of such medications, as well as the availability of Legal Services for those who have been injured by such drugs, perform invaluable educational function for our society. Nevertheless, there are those who claim that these advertisements cause some consumers to stop taking their medications and argue that they must be more aggressively regulated. But before we take any such measures we must keep a few points in mind. To begin with, truthful and nonmisleading attorney advertising is protected under the First Amendment in the constitution. Its wellsettled law that the constitution protects commercial speech including attorney advertising. Only where there is a substantial government interest may regulation on attorney advertising be upheld. Those complaining about attorney drug advertisements do not contend that such advertisements are false or misleading under current law. In light of this, proposals to limit or restrict attorney advertising may be unconstitutional. In addition, even if attorney drug injury advertisements could be considered false or misleading, there are already mechanisms to deal with the problem. Every single state has rules of professional conduct for lawyers that prohibit false or misleading advertising. And every state has a process by which consumers may complain about attorney conduct should they come across an offending advertisement. Ultimately, the onus is on physicians and other medical professions to be proactive in advising their patients about both the benefits and risks of medications. That burden should not be shifted to attorney advertisements, but truthfully i like the risk of those medications and finally, we must view this hearing in the context of other efforts to limit or each deny access to justice for those harmed by defective medical products. I just must note the hypocrisy of seeking to restrict advertising in the name of promoting Public Health and Patient Safety when the house will consider medical malpractice legislation next week. That bill is unjustifiably br d broad, Legal Protection to Health Care Providers. Including complete legal immunity for such providers and any Product Liability lawsuit concerning the provision of drugs or medical devices. Such protections for Health Care Providers will deny injured patients the ability to be made whole. Further regulation of attorney drug injury advertisements combined with enactment of medical mal of the medical malpractice bill would mean that consumers could potentially be denied full information about their legal rights, and access to Legal Services concerning defective medications on the front end, and then denied their day in court on the back end. Public Health Consumer welfare and the interests of justice would not be served by such an outcome. So i welcome the witnesses and look forward to their testimony and i thank the chairman. I thank the Ranking Member from michigan for his statement. And without objection other Opening Statements made part of the record. Before i introduce the witnesses i ask unanimous consent to introduce 13 documents that we received from various groups and individuals interested in todays hearing. Without objection, so ordered. Now id like to introduce the witnesses. Our first swns dr. Elana katinski, a director of Atrial Fibrillation services at William Beaumont hospital. The second is dr. Shawn h. Fleming, and dr. Phlegming is a vascular surgeon. The third is linda sheley who is a partner at the sheley firm. The fourth is alyssa tipit, assistant professor at the university of Oregon School of law. Each of the witnesss written statements in the record. I ask the witnesses to summarize their testimony in five minutes or less and to help you there is a timing light in front of you. It turns to green when you start to speak and turns to yellow at the end of four minutes, so then 60 seconds wed ask you to wrap up your testimony in a cogent way if you could and before i recognize the witnesses, as tradition of this subcommittee that the witnesses be sworn in. So id ask if you would stand to be sworn in. Raise your right hand. You swear that the testimony before that you are about to give before this committee is the truth, the whole truth, and nothing but the truth so help you god . Thank you. You may be seated. Let the record reflect all the witnesses responded in the affirmative. And i now recognize our first witness dr. Katinski. Please proceed after you turn on your microphone. You are recognized. Chairman king, Ranking Member cohen and members of the subcommittee. My name is dr. Katinski. I practiced medicine nearly two decades. 3450i goal is to explain why attorney advertising related to medical treatment should be required to represent transparent fair and balanced view of medical issues and should contain a clear disclaimer that the ad is not presented by a medical professional. I am here to offer the perspective of a concerned doctor. I was not paid to be here by a legal or Political Organization and i will not receive a financial benefit of any kind. The facts that i share with you do not come from a survey or think tank, my testimony is based on the personal experience of a doctor who witnessed the harm caused by careless unregulated legal advertising. I have unfortunately watched my own patients refuse and discontinue medical treatments and prescriptions because they were frightened by legal advertising. This is a sad phenomena i see on a regular basis. The misrepresentation of facts made in mass tort ads causes fear in patients and can lead to treatment noncompliance. Irresponsible attorney advertising undermines the patient physician relationship and disregards evidence based medical practices and recommendations from the fda. To offer an idea of what i have seen i will describe an incident involving an elderly patient of mine. Of i have many examples like this. This is just one. To reduce her likelihood of stroke i recommend that she begin a regimen of anticoagulation medicine. All medicines have side effects. Its the job of the physician to counsel about the side effects and why they are outweighed by the benefits of the medicine. This elderly patient was resistant to anticoagulation because of the potential bleeding effects. After several Office Visits involving long discussions one on one education i built a Strong Enough relationship with the patient that she agreed and she understood that the risk of her stroke was high and that the benefit of treatment with an anticoing alation agent significantly outweighed her bleeding risk. She agreed to take the medicine. She did not want to have a stroke and lose her independence. Then three years later she presented to the hospital with a massive stroke. I was confused and i spoke with her family. I was concerned that my treatment failed her. They informed me two weeks prior she had received a flyer in the mail from an attorney warning her that her anticoagulation medicine could cause massive internal bleeding and death. She didnt want to die so she stopped her medicine. She planned to discuss her decision with me at her next appointment. Unfortunately by then it was too late. She was unable to communicate with me when i saw her at the hospital and subsequently fell into a coma and died. She was under my care for nearly eight years, after finally convincing her to go on anticoagulation so she would be protected from a stroke, she stopped the medicine after receiving a flyer. This is just one example of something i experience on a constant basis. It may seem implausible a person would disregard the sound advice of a trusted physician. But it is true. Atrial fibrillation is common, there are over 5 million americans with it and by 2030 that which would be over 12 million. I know that patients with Atrial Fibrillation have a high mortality that is directly threated to thromboembolism. Medical societies recommend countering this risk by initiating therapy with anticoagulation. That is the standard of care. As a physician i understand and discuss this with my patients, that the anticoagulants hold some risk of bleeding. In reality a very low risk but those are outweighed by the benefits of stroke prevention. Because lawyers are held in high esteem they can eradicate sound medical advice with a single advertisement despite no medical training. Patients often do not recognize the solicitous nature of a tort ad, the financial motive behind the message and assume that an attorney, a licensed professional, must have their best interests in mind. They are not confident, they are easily scared into discontinuing a medicine based on a wellcrafted advertisement. Resume our business. At this point the chair would ask consent to introduce a document by professor barton to judges favor the legal profession, without objection, so ordered. And i now recognize myself for five minutes and questions. See if i can pick myself up to where the thought process was as i finished the excellent testimony of all of our witnesses. And one of the things that came to mind for me when im listening to the discussion about the ads that are affecting peoples decisions and was the statement i believe it was you, doctor, if i can find my note, which was, one single ad can eradicate when one single ad can eradicate professional advice and the frustration was on your voice as well as in your words that you can have build a long term doctor patient relationship and then the patient goes home, turns on the television, they decide to make a decision that is directly against their best Health Interest because of an ad. And does that change as the patients get older . I think that i had i was thinking about this and i think as patients age they get more frightened in general, they are afraid of their health, and these are drugs that they didnt want to take to begin with. Nobody really wants to be on a blood thinner or any of any drugs really. So all they need is like maybe a little nudge. But they are frightened and they dont know. So yeah, i think that one advertisement, i had known this lady for many, over eight years when this happened. The older people are, the more they are likely to have the higher their anxiety as a function of age. Very easily. And then the lawyers, they focus on the risk in order to find as you were suggesting people who have been injured by it. Like the political market, buyer beware. We expect people to make informed choices. And to try to work it out themselves. I dont know if either have a thought on that. I would be happy to answer that. First of all pharmaceutical advertising is heavily regulated by the fda. These attorney ads are not there only regulated by state bars. So the comparison between pharmaceutical ads and attorney ads i think is apt and we should be as thoughtful and data driven by attorney ads as farm astd. Who is we. Attorneys. Traditionally its the state bars and state Supreme Court that regulates this problem. So as far as i can tell there have been no complaints and nobodys brought cases, you know, i get my lawyer magazines and i see hundreds of cases of complaints against lawyers every week. Lawyers are complained about for this or that, not calling clients back, not giving them information. Im amazed theres never a case like this. My understanding most complaints are client driven. Its not the clients who are injured. They are not complaining about the lawyers stealing their fees. Because its nonclients i think thats why there is way fewer complaints than Consumer Protection might suggest. Yes. You want to comment. Let me clarify one issue with respect to regulation and lawyer advertising. Im not aware of any cases involving any of these ads but i believe thats because people have not complained to the state bars about any of these ads and all the information that we have from state regulators and that includes many of the responses that chairman received to his letter from state bars, they are not receiving these complaints. And consumers do complain about lawyers all the time. They dont complain just about their lawyer. They complain about every lawyer and they do complain about people that they just see in court. So complain about advertising . Lawyer advertising . Sorry. Forgive me. If i could take one second to introduce in the record a letter march 23, 2017 from the aba, in response to the chairmans questions. So ordered. Now recognize the gentleman from michigan mr. Conyers for his five minutes. Thank you, mr. Chairman. I thank the witnesses. Were there any of those, linda sheley, any of the attorney advertisements cited by the witnesses or members here today violate the american Bar Associations model rules which of course prohibit false or misleading advertising or any other similar state rule which you are familiar . Thank you for the question. And just to clarify for the record the american Bar Association model rules are exactly that, they dont regulate anybody, they are simply models that the states then craft their own state bar regulations after. And not looking at every single ad but at least at the ad that the chairman showed at the beginning of the hearing, if a lawyers name and address are not present, that absolutely would violate aba model rule 7. 2c. You must have a lawyers name and address in all communications again including my past, thats a communication about a lawyer, that is regulated by the rules of professional conduct, and if thats not there then that bar that would have jurisdiction over that lawyer could sthaubt lawyer to discipline. Does that happen much . Complaints about lawyer advertising in virtually all of those complaints are from other lawyers. Consumers rarely ever complain about seeing something on tv. Or on a billboard or in a print ad. Its always other lawyers who complain. When Bar Association does receive a complaint they will go through the rules of professional conduct apresident dued in that jurisdiction, and they will either ask that the lawyer put something clarifying in the ad if they think its confusing or creates unjustified expectations, or they may even discipline that lawyer through a reprimand or suspension. Let me ask this about a constitutionality of the American Medical Associations recent resolution recommended that attorney advertisements should be required to include a warning that patients should not discontinue their medications without first consulting their doctor. Do you think thats constitutional . An appropriate disclaimer in an ad if the act otherwise would create unjustified may be appropriate and thats going to be decided on a state by state basis. Anybody else want to yes. Please. I think theres a difference with these ads like so you said that people, that patients arent complaining, there havent been complaints. The patients dont actually know that the ads are false. Thats part of the problem. So, if an ad states that a drug can cause massive internal bleeding and death, they dont the patient doesnt know thats right or wrong. The patient doesnt go and get the medical literature and do a review. The physicians know thats wrong. The physicians are angry but the patient doesnt know that its wrong. Thats why its misleading. The pharma ads, you still require a visit with your physician. You need a prescription so there is still a physician patient relationship. Who cares what the ad states you need prescription to get the drug, you sill have to go through a physician. The lawyer ads dont necessarily make you talk to your physician because they are just saying this is a side effect. A big side effect. Warning. Anybody else want to . Yes, sir. To the earlier point i would say about the First Amendment, if i walk into a patients room and give them bad advice and they have a bad outcome i cant claim the First Amendment to say whatever i want in defense. Its my belief that these commercials enter into the territory of giving medical advice. When you give medical advice i believe you have to be held accountable for the outcome. Very good. Let me ask this question. Miss sheley. Professor tipit suggests that state bars consider more deregulation of attorney referral clearly allowing advertisers to receive refer fees. What do you think of that . The aba model rules require that if a lawyer who is advertising is not going to be the one taking the case, the referral has to be disclosed. So if an ad doesnt include that if you want to run an advertisement for a bad drug but youre not actually the lawyer who is going to handle that case you are supposed to disclose under the aba model rules how you are referring that. The referral fee is not the driving force there as much as you have to identify who is actually going to handle that case. So that would be the disclosure that would be appropriate for these ads. Any other comments . Thank you, mr. Chairman. I yield back. Thank you, Ranking Member from michigan, the chair recognizes the gentleman from new york for his five minutes of questions. Thank you. I have a couple of questions and comments. Let me say dr. Flming. There is a higher burden for restraint than for punishment after. In other words its a heavier constitutional lift to say you may not say that, than to you shouldnt have said that. Because some bad outcome occurred. Its a bigger First Amendment problem to prohibit speech in advance. Professor, you write in your testimony about the state of scientific literature regarding people, were talking about regarding people stopping their medication because of an ad and you say im not aware of any large scale Observational Research that establishes a causal link between drug its possible that attorney advertising is no aggregate effect whether consumers decide to discontinue prescribed medication. A study of mehimmediat immediat did not find injure that skrened drug injury advertising volumes associated with the decrease in prescription rates. You go on to cite other studies which are suggestive, not at all dispositive. Youre here testifying as are some fellow witness this is is a serious problem that we should deal with, and yet you are saying that youre not aware of large scale Observational Research that establishes a causal link. Until we have such why should we act . Thank you for asking about that. Its really hard to establish a causal link as a matter of observation, as a matter of science, its really hard. And because the research is at such an early stage i wouldnt be surprised that we havent found a causal link. That doesnt mean there isnt one. Our study hold on. I get that point. But we should act and limit these ads on the possibility that there is a causal link . First of all, my recommendation as you know from my written testimony dont say we should limit the ads, but second, you have other evidence, large observational studies are not the only way to prove things through scientific experiment. So we have evidence from the federal adverse event data base, admittedly sponsored by pharmaceutical that found that 31 patients did base their decisions on the advertising and two of them died. In my mind how many . I dont know. Because the data base is only looking at the people who reported adverse events f. Anybody is dying you should take that seriously as a profession. What is your recommendation . My recommendation is that we need to study this further, so that we actually know which content is misleading so we can provide good advice to the advertisers and then make possible, more Information Available to the attorney receiving the referral so they can choose ethical advertisers over unethical advertisers and see if we can use informational and market based forces to improve the quality of advertising overall. I dont think thats unreasonable. Let me ask you a different question. As larger than advertising that says if youve been injured by such and such a drug, call us, we may get awe fortune, there is advertising that says if you have a syndrome we just invented, call your doctor, tell him to prescribe watch a ma call it. Is that harm snl should we regulate that . Are you asking me . I think thats an excellent question. I would love to provide an answer on the record. Go ahead. In written. Because i want to look into it. Those ads are called disease mongering. They occupy a special pocket of regulation. Lets say its not restless leg syndrome, some legitimate disease and they tell you call your doctor and ask for such a drug. Well, those ads are already regulated. Im not as worried, there is substantial oversight. Miss shelly, would comment on that. There is also substantial regulation of lawyer advertising if people have a concern, you need to bring it to the state bar so that they can review the ad. Because the content and the ads varies so drastically, we dont have just one bright line rule that says you can say this and you cant say this. In addition to the First Amendment issues of prior restraint and limiting what restrictions we have on commercial speech, there are also significant anticompetitive effects adding additional regulation. And you want consumers to be aware of what actually risks are, so the only thing that i would disagree with some of the testimony that the ads are false, i dont think they are false because they are factually accurate. Whether they create an unjustified expectation is something that each state bar needs to look at. Whether an additional disclaimer will help is questionable. My time is expired. I thank you. Gentlemen, return time. This concludes todays hearing. I thank the witnesses and for your testimony. All members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record. This hearing is now adjourned. Now live to the white house where President Trump will be signing the department of Veterans Affairs accountability and whistleblower protection act, in the east room of the white house. We expect to see the president in just a few moments. Live coverage on cspan3. Ladies and gentlemen, secretary shulkin. [ applause ] wow. Its a full house. Thats great. On behalf of the president , i want to welcome everybody here today. I have the great privilege of introducing one of the nations heroes. Let me tell you about sergeant michael. He was