Subcommittee on the constitution and Civil Justice will come to order. Without objection were authorized to declare recess in the committee at any time. We welcome everyone in todays hearing on the examining and now i recognize myself for an opening statement. Todays hearing will examine the ethical responsibility related to attorney advertising. Id like to start out by showing an ad by the law firm possession laskey, llc and theyll be projected. A blood thinner predaks a may call serious and internal injury. The manufacturer of predaks a link since 2010. If you or a loved one took this and suffered from bleeding, vehicle bral hem imagining or death you may receive compensation 1800 bad drug to sieve a consultation. Ladies and gentlemen if youve watched television in years or seep one like it. It includes a toll free number. One information thats not warning the patient being talking to the doctors before discontinuing use of the medication. Indeed, even if that warning is in tiny low contrast text at the bottom of the t. V. Screen, studies show these ads are reaching a broad audience. A recent survey states nearly three quarterers of americans say they have seen ads by law firms about pharmaceutical lawsuit in the last year. Three quarters of american. The same survey found that one and four people, say they would immediately stop taking the medicine without consulting the doctor. American medical association reported a similar effect. According to a press release last year patient were more likely to discontinue the use of prescribed fda suit calls after seeing television quotes, emphasis side effects while ignoring the benefit that the medication is fda approved, close quotes. A study ploushed in a journal stated that patients who were prescribed the antikoeing a lent tso real toe suffered serious injuries or have died. According to the author, 75 of Patient Experience add stroke. Two patients passed away including a 45yearold man. These only account for those that have been reported to the food and sbrug administration. There may be many more cases that have or many other drugs. Todays hearings are intended to examine the effective of these drugs and present more loss of life. I will call the witnesses for their testimony and i look forward to your perspectives on this issue. The chair recognize mr. Cohen. Thank you. Our hearing last week the new topic for us but its one in a new bottle. Its another attack on trial lawyers, advocates, or others as we have advocates argue for us in court and the beneficiaries that the attack on plaintiffs bar are wellhealed corporate interest that would benefit greatly and prefer not having attorneys at all. In this committee has unfortunately the constitution and subcommittee in riching the rich and attacking the plaintiffs bar. Rather than doing what we should be doing in representing and advocating for the constitution. Just this week, nearly 200 members of Congress Filed a legal action which we have to resort to do for this subcommittee and our full committee have not taken up any attacks on the constitution such as the clause, article 1section 9 and no foreign power shall give a gift amon yumt of any kind to someone serving in the United States without the consent of congress. We know that the current president has taken hundreds of thousands of dollars from government saudi holy here and leases at the trump hotel for the saudis and god knows where else. Land our ancestors native land ireland and he asked counsel if he could accept a zip, it was deemed so and he didnt accept it. Thats the difference, and many president s over the years have asked for and turned down, some even just small items. Know were dealing with attacking the plaintiffs bar once again. Last week we had the majority from plaintiff at government regulation of business and businesss ability to communicate with the public, somewhat a robo call advocacy, if you can can believe we have that, one of the most hated forms of communication thats been created, because attorneys were illegalities by robo companies and calling and calling and pestering people and bothering peep. Make no mistake this hearing may be framed of one as concern about healthcare, about the potentially harmful effects of attorney advertising on drug cases to the public. But the reality is the aim to protect companies from being held accountable from harmful drugs. Its consistent though with the healthcare that the majority has given the company which is not a healthcare in which president obama has correctly says its more about tax breaks for the rich and less about healthcare. This bill is clear why some would want to post greater restrictions on the able attorneys to communicate with the public about the able of Legal Services. But they would the First Amendment which we should be concerned about as the Constitution Committee and we should be protected the First Amendment and advertising the constitution of protecting free speech. Only with the advertising false or misleading may it be prohibited and only in limited services. So far theres billion little evidence to determine that attorney advertising is false and misleading under further law there are attempts to restrict these advertisements are constitutionally suspect at best. This is once again intruding on state sofrpty off the mantra of that side and socalled tort reform. Regulation lawyers are followed in the authority of Supreme Court, state bars or states in general. Surely the legislator has better use of its time then trying to supplement on matters traditionally. But weve done that on or doing that on gun laws, taking that from the province of states when it purr suits the political convenience of that side. It is a suggest that we could seek to limit attorney advertising in the name of protecting consumer and given the amount. Lawyer drug minute century serves on the danger of medications and the availability of Legal Services for those who are injured. Yet i note that while 114 million may have been spent on attorney drug advertising in the year ending 2016, that fails in comparison to the 6. 4 billion 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 drugs and going to their doctors and say, like huey lewis in the news, i need a new drug. We shouldnt try to manipulate patient choices about what medication they should be taking. Our broadcast and online media are full of pharmaceutical ads that its impossible to escape ads from medication and address everything from i reck tile dysfunction and a four hour any other of the day even when children may be watching. Those are areas that should be looked at and screened than drug advertisement. The prescription on which a person should be taken a medication on the risk of doing so should be left to the patient and consultation of a healthcare profession. They should not be looked at by Drug Companies telling you when youre in the moment use our drug. Of the availability of Legal Services and Legal Recourse and where ads are actually false or misleading equipped to take disciplinary action. Congressman and women should stay out of away and protect the First Amendment. I yield back the balance of my time. Thank the gentleman from tennessee for his opening statement. And i mcmr. Good ladder for his opening. Thank you mr. Chairman. On march 2017 and two companies that aggregate plaintiffs for law firms. Based on the responses we received so far from state bars there are fewer reported complaints regarding these commercials. The lack of complaint duds not diminish the fact that severe injury and death resulting from these commercials are being reported to the food and Drug Administration. Id like to read a portion submitted for todays hearing dr. Peacock from texas who created such a case. He states my patient being 66 years old, a female with a history of high Blood Pressure and diabetes has a 4. 8 risk of having a stroke in the next year that would leave her debilitated, upable to speak wearing diapers in a nursing home for the rest of her life rather than taking a pill with a risk of fatal bleed. So summarize it, the patient had a 4. 8 annual sproek risk versus. 0009 of fatal bleeding risk. In medicine we call this a nobrainer and picked the lower of the risks. I went to the patientee bedside to have what a thought would be a relatively straightforward conversation, usually this is a five Minute Exchange about what ate owe fib ral is and what would be a treatment. I answered the questions wrote a prescription and move on to the next patient. That is not how it went. It went to the bedside and said her test showed she had ate owe fibrillation but instead of her asking me what that is she said i know. The obvious next question for me was what antikoeing a land are you talking. She couldnt answer me as she broke down in tears. When she could take she related a story that made me so angry that she had felt tired and weak and had a fluttering feeling in her chest. She when to a physician who did an elect troe cardiogram and diagnosed cart owe fiblation. He found the same problem i had. He spent 30 minutes teaching here about ate owe fibrillation, the risk benefits, the treatment options, answered her questions and gave her a prescription and discharged her home. On wednesday afternoon my patient filled the prescription, went home and took it, all was well until thursday which while watching television she saw the one, the first, 1800 bad drug commercial that implied the drug prescribed was a dangerous drug. Having taken it as instructed with appear dinner she called the doctor and got a friday came, she called her doctor but he didnt have a opening until the following week. She called the 1800 bad number again and got in instructions. She did not take her medication that night. On saturday morning in my er i spent an hour talking with this patient. This was an extremely educated intelligent woman who felt abused by our system. Her physician of many years prescribing a drug to save her life and lawyers coming into her house by way of her television to destroy the doctorpatient relationship and prompt her to engage in behavior that could be fatal. My patient left my er by midday he took her medication before she left. Nobody would know what had happened had she waited to take her medication. Would she be dead from a massive stroelk or in a nursing home at that minutism what if it had been a different patient that just listened to the t. V. And didnt come to my er. Dr. Peacock statement shows these attorney advertisements are having a real world impact. Not only do they create a barrier between doctors and patients but they are endangerering these patients lives. I want to thank or witnesses that appeared today and i look forward to your testimony. Thank you the chairman for his opening statement. The chair recking mr. Conniers for his statement. 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 two 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 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 dangers of such medications, as well as the availability of 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 protecting in the First Amendment in the constitution. Its wellsettled law that the constitution protects commercials 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 lim or restrict attorney advertising may be unconstitutional. In addition, even if attorney drug injury advertisements could be false or misleading, there are already mechanisms to deal with the problem. Every single state as 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 onuss own physicians and the fell professions to be proactive advertising their patients about both the benefits and risks of medications. That burden should not be shifted to attorney advertisements that truthfully, i li to highlight the risk of those medications. Finally, we must view this hearing in the context of other evidence to lim, or even deny access to justice for those harmed by defective medical products. I just must note the hypocrisy of seeking restrict advertising in the name of promoting Public Health and Patient Safety when the house will consider mal practice legislation next week. That bill is unjustifiably broad Legal Protection of Healthcare Providers including completely legal immunity or such providers in any Product Liability lawsuit concerning the provision of drugs or medical devices. Such protections for Healthcare Providers will deny injured patients the ability to be made whole. Further regulation of attorney drug injury advertisements combined with enactment of medical mal practice of the medical mal practice bill would mean that consumers potentially be denied full information about their access to Legal Services concerning defective medications on the front end, and then deny their day in court on the back end. Public health consumer, welfare and the interest of justice will not be served by such an outcome. So, i welcome the witnesses and i look forward to their testimony. And i thank you the chairman. I thank the Ranking Member from michigan from his statement and without objection other members statements will be made part of the record. Before i introduce the wendys i ask for the consent to introduce into the record 13 documents that we received from various individuals. Without objections, so ordered. Now id like to spruce the witnesses. Our first witness is dr. Alana, shes the director of ate yall defiblation services. Second witness is dr. Sean h fleming. Hes a vascular surgeon. Third witness is linda shely. Whos a partner at the shely farm. Our fourth witness is tip pit. These are the witnesses, wherein statement will be written into the record in its entirety. I ask the witnesses to shorten their testimony to five minutes or less. That light will turn green whether you start to speak and yellow at the end of four minutes and 60 seconds wed ask you to wrap up your testimony in a cogent way if you could possibly. Before i recognize the witness its the tradition that you be sworn in. Id ask if you please stan to be sworn in. Raise your right hand. Do you swear that the testimony before you that youre about to give before this committee is the truth, 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 affirm tifr. Ill recognize our first witness, dr. Ka ten ski. Youll see shortly after you turn on your microphone doctor. You are recognized. Chairman king, Ranking Members of the subcommittee. My name is dr. Lana ive practiced medicine for two check dads. My goals today is to explain why attorney advertising related to medical treatment should be required to represent trans pattern fair, medical views of medical issues and should contain a disclaimer the ad is not presented by a medical professional. Im here to offer the concerns of a concerned doctor, i was not paid to be here and will not receive a financial benefit of any kind. The fact that i sure with you do not come from a survey or think tank. My testimony is based on personal experience, the doctors whose witnessed the harm of uncare less advertisements. My own patients have refused and discontinued prescriptions because they were frightened by false advertisements. The misrepresentations of facts made in mass tort ads causes fear in patients and can lead to treatment noncompliance. Irresponsible attorney advertising undermines the patientphysician relationship. To offer an idea of what ive seen ill describe an incident involving an elderly patient of mine who was diagnosed with ate yall defiblations. I have many examples like this. To reduce her likelihood of stroke i recommended she began a regiment of anticoagulation prescription. Its the physicians responsibility to counsel patients about the side effects. This particularly elderly patient was resistant because of the the potential pleading effects. After several Office Visits involving long discussions, and 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 anticoagulation agent sufficiently outweighed her bleeding risks. She agreed to take the medicine. She did not want to have a stroke and lose her independence. Three years later she presented to the hospital with a massive stroke. I was confuse requested spoke with her family, they informed me two weeks prior to her admission she received a flier in the mail from an attorney warning her that her medication could cause massive internal bleeding and death. She didnt want to die so she stopped her medicine. She plan it had discuss the decision with me at her next appoint. Unfortunately by then it was too late. She was unable to community with me when i saw her at the hospital and fell into a coma and died. She was under my care for eight years. After finally convinced her to go on anticoagulation so shed be protected from a stroke she stopped the medicine from a soliciting attorney who has no medical background. This is one of the examples of something i experienced on a constant basis. It may seem implausible that a person would disregard the advice from a doctor based on a personal injury attorney but it is true. There are currently over 5 million americans with atroe owe defiblation and by 2030 that number will be over 12 million. I know patients with this disingenuous will have a high mortality thats related to high this romlism. As a physician i urns and discuss with my patient that the antikoeing a lants hold some risk of bleeding, in reality a low risk but those risks are outweighed by the benefit stroke physicians. Counter patient take these medicines based on treatment patients. Because lawyers are held in high esteem they can eradicate advice despite no medical training. Patients do not represent they do not consider the financial motivate behind the message and assume that an attorney, a licensed professional must have their best interest in mind. They are not confident by easily scared to discontinue a medicine based on well crafted advertisement. Im not a lawyer so im not here to argue whether the advertising incringes on freedom of speech or its sufficient by the state Bar Association. I can communicate the events ive witnessed on a basis involving real people who disregard sound medical advice based on misleading advertisements. While im not a lawyer i do understand all constructional rights are subject to lim including freedom of faech. But that does not require anyone including lawyers to make a false representation at the expense of the public. In closing, i ask the committee to consider that first attorney advertisements are not have a disclaimer stating that they have no medical background. Second, because of this lack of balance, advertisements have the potential to scare patients into stopping important therapy. These advertisements undermined the physician and patient relationship instilling unfounding doubt and mistrust. These advertisements involved current evidence. Theyre directly advertising against medications determined by the fda to be safe and effective without any communication as to the risks of abruptly stopping these treatments. I urge the committee to ensure all attorney advertisement related to medical treatments represent a fair of the medical issues and hold a clear disclaimer that the ad is not presented by a medical professional. I thank you the committee for its attention to this issue and allowing me the opportunity to shire my experience. Thank you doctor. Now the chair recommends dr. Fleming for your testimony. Chairman king, Ranking Members and subcommittee i thank you for opportunity to be here its an honor. My name is sean fleming, i have the privilege of practicing as a Board Certified vas kerr surgeon in income. Im also asked to determine the need for coagulation as well as describing regiments and determining risks of nicoing alation around the time of surgery. Im also on occasion called to perform emergency suggs on people who are bleeding to death. In the term of my training war fa rin has been the koeing a lant that is used for many years. Although it is cheap it requires constant monitoring and dose adjustment. The new dosage of this koeing a lants several years ago have simplified the management in patients for risk for blot cots. These medications do carry a small risk of bleeding that must be waeged against the benefits they provide for the patient. This is not a new phenom noun and its one that all prescribers take into account when theyre considering the benefits and riskts for the patient. Several years i became aware of the i seements regular frequent and strong resis steps from patients when i prescribed these medication. When i required about the resistance i was told about the commercial and fares they have of dying from the drug. Not since i began training in the year 2000 ive seen patients fear recommended treatment from a medical professional. Since these commercials first appeared ive spent countless time in the clinic trying to quince patien convince patient of their safety. I required a patient in my practice who was under the care of another physician in the Healthcare System for an unrelated million condition, a pulmonary imbut lance, this is a blood clot that yield to the lunge and threatening. You may remember cnn reporter david bloom died from this while doing a story in iraq. When reviewing his medications he was told he was not taking the medication nor would he ever because of a commercial hed seen on television. I did spend time trying to consequence him otherwise but he refused. Several weeks later we got a note he died of a reoccurring blood clot. While this has been a case i was directly involved in related to death ive spent countless hours trying to convince patients to take their prescribed regiment. Its my intention these medications that are just not true. When you say call 1800 bad drug that clearly implies its a bad drug which runs counter to medical evidence and also the fdas recommendation. These advertisements imply a false choice where patients not take this med and be just not or take the medicine and spontaneously bleed to death. Thats not the case, if they dont take the medications they could die and are more likely to die from a tlom gottic event and that is not mentioned in the commercials. While i dont sbepd to know the intention of the commercial, i can testify with confidence that patients foresee these advertisements and medical advice and theyre in direct of that in their physicians. This leads to conflict in the doctorpatient relationship. If theyve believed ive prescribed them a drug that may kill them, and six months later when i need to give them a different drug theyre resistant. When i tell them they need to put them to sleep and do surgery on them their resistant because they no longer trust me. Each of these new medications carry a significantly lower risk of bleeding, yet they have seen the commercials targeting the generic drug war ferrin. The patients are making the decisions based on advertisements i believe that are not held to the same standards as medical profession. Ultimately these drugs have saved lives over the course of my career. In my professional opinion, a positive benefits of antikoeing a lants is very significant. My patients have benefited from these therapies are are alive today as a result of their plan of care. As such 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. That you feel. Thank you dr. Fleming, now recognized miss shely for your testimony. Thank you mr. Chairman and Ranking Members and members of the subcommittee. Thank you for inviting me today to talk to you about lawyer advertising and regulation on lawyer advertising. Im speaking today in my individual capacity, i am not representing any organizations, even though im a member of three state bars, arizona, the district of columbia and pennsylvania. Im also a member of the American Bar Association and the immediate past president of the association and responsibility lawyers. For the past 24 years i have practiced exclusively in lawyer ethics, advising over 1500 law firms around the country or legal professional matters. I want to note i dont advise any of the firms discussing today regarding any of this commercials. I am not being paid for my testimony but here on my own nickel. In regulated lawyer advertising, i know many of you on the subcommittee are lawyers but i thought it useful to sum rice what the current status is of regular lawyer advertising nationally. Lawyers are regulated in most injury dictions by the highest court in each state. Were not selfregulated but by the judiciary. As recommending chairmen coney remzed in his remarks 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, the Current System that we have of state regulation of lawyer advertising, what happens is if the state regulators whether it be a Bar Association or a committee to the highest Judicial Court receives a complaint about a lawyer advertisement they investigate, they determine whether there is actually something in the ad that is false and misleading. So, what they do when they receive that ad is investigate and then the lawyer who is responsible for that advertisement may be disciplined requested 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 to clarify the statements or they may be reprimanded or suspended if theres found to be a violation. As the representative mentioned in his remarks and representative collin, the First Amendment protects those ads. And next week we actually celebrate the 40th anniversary of baits versus the state bar of arizona which was the Supreme Court case that commercial speech, including lawyer ads is protected by the First Amendment. So, when that 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 you also are aware, and i believe my remarks indicate that the federal trade commission over the years has sent letters to various state bar regulators on the general topic of lawyers advertising indicating that overly broad restrictions of factually accurate commercial speech, actually is a competitive and may have the detrimental effect of increasing the pricing charged the consumers. Id have to tell you that in 24 years ive been advising lawyers on legal ethics matters including ten years at the board of ethics, i never once heard a consumer complaining been an advertising. Actually i have not soon any doctors submit advertisements to the state bar complaining. You all know that everybody has standing to complain about a lawyer ad, it does not have to be somebody whos harmed, anyone can commit to the state bar or concern about a lawyer ad. Now, all of this information is ante dotal, the association of professional responsibility lawyer conducted a survey in 2015, which i incorporate as part of my remarks, and that survey confirm that the 34 responding jurisdictions of state lawyer advertising regulators or state bar regulators, virtually also confirmed. Consumers dont complain about being confused about lawyer advertising. And this is not a fact that consumers dont know that they can complain, consumers do complain a lot. Consumers can complain about the conduct. I ask that this committee simply submit any ads they are concerned about to the appropriate state regulators so that they can take appropriate action, because a Current System regulating thats false and misleading advertising and im happy to answer any questions. Thank you. The chair now recognize professor tip pit for her testimony. Thank you Ranking Members and members of subcommittee for the opportunity to testify today. I am a faculty member at the university of Oregon School of law. Its an honor to be here today. I want to preference this by saying i am a member of bar in new york, california and oregon and i have a great deal of respect for. At the same time, its my strong belief that drug injury ive shared in my written testimony the Scientific Evidence we have to date on effecting the way people make decisions. I wanted to share a personal story with you. The reason im interested in these ads because of a phone call i received from a Family Member several years ago, and they told me they were cancelling a surgery because of an attorney ad they saw on television. It was a drug injury ad. I had to explain to the Family Member that it was from a lawyer looking for clients and thats why they had that ad. And i asked does your surgery. The Family Member said yes, so i said look, at the end of the day youre going to have to decide a over a lawyer or your own doctor. And they ultimately proceeded with surgery but i wondered are there other families affected by these ads too. And as lawyers, the responsibility to communicate Important Information in the most responsible way. Im also married to a hear from his patients in the community about how these ads affect their practice. 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 this seriously as lawyers, we need to take this seriously. I want to be clear that the drug injury advertisements are inherently bad. I think informed consumers are better than uninformed consumers and when individuals are harmed by a drug they have to seek counsel, bring a claim. We cannot stick our heads in the sand and act as though these ads are the same as. To see them. Not just people who are harmed by the drug, might be taking the drug or. These advertisements almost always involve drugs that are still on the market. To 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 some of them were not. Some of them looked like a Public Service announcement that had consumer alert and medical alert and warning. And they described all the bad things that will happen to you if you took a drug. And sometimes from these ads it was heres the strange thing that i dont understand about these ads. If you have been harmed by a drug you dont need a warning, you have already been harmed, why spoke with an advertising torn about this and ask why we see this language. He explained to me that these ads only have a few seconds to capture and it do takes and who may not be able to connect their injury with a drug they may have taken in the past. Essentially what he was telling people to is a side effect of the advertising. The point of the advertising have helped harm consumers and has a side effect on everybody watching it. I think we need to take these behavorial side effects seriously. Understand them better t same way we take seriously the medical side effects of prescription drugs. Now, as i explained in my testimony the drug injury Advertising Market sponsor the advertising are different from the lawyers that litigate these claims. My testimony included that practice. And part of the solution may be to have an impartial Rating System for advertisers so that the lawyers who are litigating these claims can vote with their dollars and chose their referrals from advertisers that are the most ethical. As attorneys, we have the privilege and duty and selfregulation and i dont think we have taken that duty seriously enough. We need to invest more time and resources to understanding and addressing this problem. The opportunity to testify today i will be happy to take. Professor tip pit thank you for your testimony. Well now proceed with the members ill recognize myself for five minutes. Yes, we are in that case well recess and come back to this hearing. This committee will now recess and well return shortly after we conclude our votes. The subcommittee will come back to order and resume our business. At this point, the chair has unanimous consent to have a document produced by professional without objection so ordered. And i now recognize myself for five minutes in questions and see myself up to where the process was as i finished hearing the excellent testimony of all of our witnesses. One of the things that came to mind for me when im listening about the ads affecting peoples decisions was the statement, i believe it was you dr. Ka ten ski, if i can find the note, which was one single when one single ad can e rat katie professional advice and the frustration was on your voice as well as in your word was you think you can have a long doctorpatient relationship and the patient goes home, turn on the television and its all erased. And they decide to make a decision directly against their health because of the ad. Does that change as the patients get older . I think that i had i was thinking about this and i think as the age they get more frightened in general. These are drugs that they didnt want to talk to begin with, nobody really wants to be on a blood thinner or any drugs really. And so all they need is like, maybe a little nudge in that direction and it gives them almost like an excuse to stop taking their medicine. But theyre frightened to think that one advertisement i mean this was one advertisement and years when this happened. Well, the older people the pharmaceuticals their likely to have prescribed to them, the higher their anxiety goes in age i would think. Yeah, i think as they age they get less confident in everything. Theyre on 10, 11 different medicines and they get confused. They lack trust. They can get preyed on very easil easily. You ever watch political ads . Yes. You every think about what youre describing here and political ads . Yes. And sometimes we leave out a whole ocean of information nes ser to evaluate . Yes, i think if theres a fair look at an issue. If the ads say theres a 0. 5 risk of massive bleeding but theres a 70 risk of preventing a stroke, thats a fair ad, right . So if you bleed, you take that risk, that 0. 5 risk. So when i describe it to patients, thats what i do. Im not saying there shouldnt be ads. If youre prescribed the wrong drug, are you liable . Of course. And then your medical malpractice professional Liability Insurance is supposed to cover that. Whats happened to your premiums in the last ten years . Theyre super high. They just continue to go up. They probably run in the same line with my Health Insurance probably. Yeah. And i want to understand if doctors are liable when they prescribe the wrong drug and then attorneys can advertise and spend potentially millions of dollars to put out a thread of truth and argue its under First Amendment protection, and it counter acts 99. 9 of whats necessary. If doctors are liable, arent attorneys liable . If the misinformation from attorneys brings about death or injury and doctors are paying for their professional errors, why arent at or nears paying for theirs . So i guess i dont know i agree with the position these ads only have a thread of truth. I think attorneys are pretty careful their statements are factually accurate. Its just the context in which they present the information is misleading. And thats my primary concern is the context for which they provide this information. Sure. But the if the doctor in context is recognizing theres a 10 battery reaction to a drug, either prescribes the drug understanding theres a tiny percentage of a bad reaction or fails to prescribe the drug because of a tiny percentage of negative reaction, that doctor is liable under their malpractice. So why is there a different standard for attorneys . So my understanding is that attorneys might be liable under a common law claim. But i would be happy to provide you with a more complex answer on the record. Id appreciate you introducing a more complex answer on the record. I know its a very complex issue. I see my time has expired. I yield back the balance and recognize the smiling gentleman from marld, mr. Ras kin. Mr. Chairman, thank you very much. Ms. Shealy, let me start with you if i could. To what extent is the problem were talking about just a general cost of having the First Amendment at all . I mean assume youve got a drug where 1 of the people end up with horrific sooefts, those people certainly have a right to go into an interview on theope raw winfrey show or be on the news or take out an ad of their own. They still have the right of free speech to talk about the horrific effects on them, even if its not giving the context a doctor would, right . Yes. Is there a way to deal with that problem . Yes. We do have a system to deal with this. Lawyers are a regulated profession. And the Supreme Court has said lawyers do have a First Amendment right to engage in freedom of speech, but it cannot be false, deceptive or misleading, correct . Correct. Do you know of any cases where lawyers have put out ads like this and just fwoek s on the risk and play on peoples anxieties and fear and then brought up on charges that their false and deceptive in their freedal of speech . Im not aware of anybody clanicla complaining to. Are you aware . My Research Suggests that i cannot find any evidence that any state bar has taken any action on this. Nor has the fdas or the ftc. But have there been consumer complaints with people engaged in the course of therapy, they see a terrifying ad and cease treatment, and then they make a report to the Illinois State bar or the i have not seen i have not access to that information, but it seems likely a consumer would know to complain to the state bar when they see an advertisement like this that influences their medical decision. Well, the chairman made an interesting point about political ads. I can run for office and i can say im going to build a wall and i guarantee 100 mexicos going to pay for it, and i win the election and mexico doesnt pay for it. Nobody has a cause of action against me. Im not kicked out of office. Nobody can go for money damages ear injunction or whatever. To what cost is the First Amendment, prescription Drug Companies are going to put ads out that emphasize the benefits of using the drug. And then they will say theres 50 possible side effects that youre not going to hear in the next three seconds. And the lawyers focus on the risk in order to find the viewers of people who have already been injured. Isnt it like the political market, buyer be aware . We expect you to informed choices and work it out themselves . I dont know if you would have id be happy to answer. First of all, pharmaceutical is heavily regulated by the fda. So the comparison between pharmaceutical ads and attorney ads i think is apt, and i think we should be as thoughtful and driven as attorney ads as we are about drug ads. Tradition tale its been the state bars that regulate this problem. As far as i can tell theres been no complaints and nobodies brought in the cases. And i get my lawyer magazines and i see hundreds of complaints against lawyers every week. Lawyers have been complain said about this and that, not calling their clients back, not giving complete information. So im just amazed theres not been a case like this. So my understanding most consumer related complaints are client driven. And this is an unusual situation because its not the client thats injured. Theyre not complaining their lawyer is stealing their fee. Because the client is affected, i think thats why theres way fewer complaints than Consumer Protection might suggest there should be. Yes, you want to comment. Let me clarify one issue with respect to loir advertising. Im not aware of any cases with any of these ads but i believe because people have not complained to the state bars about any of these ads. And all the information we have from the state regulators and that includes many of the responses the kmarman received from his letter from state bars, theyre 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 they see in court. They compare about advertising sorry . Mr. Chairman, forgive me, but if i could take one second to introduce into the record a letter from aba in response to chairman goodmans question. The chairman now recognizes mr. Conners for his five minutes. Thank you, mr. Chairman. The witnesses, would any of the attorney advertisements violate the American Association model rules, which of course prohibit a false or misleading advertising or any other similar state rule of which you were 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 state then craft their own state regulations after. And not looking at every single ad but at least at the ad 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. 2 c. You must have a lawyers name and address in all communications against that is reg lalted by the rules of professional conduct. And if thats not there, then that bar that would jurisdiction over that lawyer, could subject that lawyer to discipline. Has that happened much . Bar associates will receive complaints about lawyer advertising. And 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 and either ask that the lawyer put something clarifying in the ad if they thinkites confusing or creates unjustified expectations or they may even discipline that lawyer through a reprimand or suspension. Let me ask you about the American Association recent resolution recommended that attorney advertisements should be required to include a warning to patients to not discontinue their medications without first consulting their doctor. Do you think thats constitutional . An appropriate disclaimer in an ad if the ad authorize would create an unjustified expectation, 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. So you said that people the patients arent complaining, there havent been any complaints. The patients dont actually know the ads are false. Thats part of the problem. So if an ad states that a drug can cause massive internal bleeding and death, the patient doesnt know thats right or wrong. The patient doesnt go and get the medical literature and do a medical literature review. The physicians know thats wrong, the physicians are angry about it, 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 theres still a physician patient relationship. So who cares what the pharma ads say, you still need a prescription to get the drug. You still have to go through a physician. The lawyer ads theyre just out there saying this is a side effect, a big side effect warning. Anybody else want to chime in . Yes, sir. 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 and my ability to say whatever i want in my defense. And its blie belief these enter into giving medical advice. And when you give medical advice, i think you have to be held accountable for outcome because i certainly am. Very good. Let me ask this question to ms. Shealy. Professor tippet suggests that state bars consider more deregulation of attorney referral fees clearly allowing advertisers to receive referral fees. What do you think of that . The ava model rules require if a lawyer who is advertising is not going oo be the one taking the case, the referral has to be disclosed. So if you want to run an advertisement for a bad drug but youre not actually the lawyer whos going to handle that case, you are supposed to disclose under the ava model rule, how youre referring that. The referral fee is not the driving force there as much as you have to identify who actually is going to handle that case. So thats 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. And the chair now recognizes a gentleman from new york for his five minutes of question. Thank you, i have a couple of questions and comments. Let me first say doctor flemming, its a much higher constitutional risk to say you may not say that than there is for you shouldnt have said that and therefore well penalize you because of some outcome occurred. It prohibits speech in advance. Profess professor t professor tibet, you write in your testimony regarding people stopping their medication because of an ad. You say im not aware of any large scale Observation Research that establishes a link between drug advertisements and patient decisions. It is possible it has no effect and whether consumers choose to discontinue. We did not find any evidence thaf increased drug injury advertising volumes associated with increased prescription rate. You then go onto cite some other studies which are subjective, if not at all dispositive. Youre here testifying for some fellow witnesses this is a serious problem we should deal with. And yet youre saying youre not aware of any large scale Observation Research that establishes this cause of link. Until we have such large scale Observational Research whoosh 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 if we havent yet found a causal link. But that doesnt mean there isnt one. For example, our study for one year hold on. I get that point, but we should act and limit these ads on a possibility theres a causal link . Well, first of all my recommendations as you know from my written testimony dont say we should limit the ads. But second we do have othereds. I mean large observational studies arent the only way to prove things through scientific experiments. So we have evidence from the event database that found that 31 patients did base their medical decisions on attorney advertising and two of them died. In my mind, if anybody is dying, we should be taking that seriously as a profession. And what is your recommendation . My recommendation is we need to stustudy this further so we actually know which content is misleading and make more Information Available to the attorneys receiving the referral and see we can use informational and market base forces to improve advertisement over all. I dont think thats unreasonable. Okay, let me ask you a different question. With advertising if youve been injured by such and such drug with advertising that says if you have restless leg syndrome, which we just invented, call your doctor and tell him to prescribe watcha mucollet, is that harmful the. Are you asking me . Yes. I want to look into it because those ads are called disease monitoring and they occupy a little special part lets say its not restless leg syndrome but some legitimate disease and they call your doctor to prescribe such and such drug. Well, those ads are already r regulated by the fda. Ms. Shelly, will you comment on that. If people have concerns, they need to bring it to the state bars so they can review the ad. Because the content in the ads vary so drastically, we dont have just one bright line rule that says you can say this and you can say this. In addition to the First Amendment issues of prior restraints and limiting what restrictions we have on commercial speech, there are also significant and competitive effects to adding additional regulation. And you want consumers to be aware of what actual risks are. And so the only thing that i would disagree with some of the testimony the ads are false. I dont think theyre false because theyre factually accurate. Whether they create an unjustified expectation is something each state bar need to look at. And the disclaimer with regard to health, is questionable. My time has expired. This concludes todays hearing. I thank all the witnesses for attending and your testimony. All members will have five legislative days to submit additional materials for the record. This hearing is now adjourned. This weekend on American History tv on cspan 3 saturday at 6 00 p. M. Eastern on the civil war, the disbanding of the Confederate Army of Northern Virginia is discussed by Perdue University professor carolyn jany. Remember, lees terms had surrendered his army. They had said nothing about declaring the confederacy defunct. There had been no peace treaty, and as of may 9th, Jefferson Davis remained on the run. And then at 8 00 p. M. University notre dame history professor on the east Texas Oil Boom of the mid20th century and the expansion ofile bebusinesses to saudi arabia and canada. Saying that american oil reserves were going to really collapse by 1970, forcing the country into a difficult situation. And so this kind of apocalyptic fear of america losing its oil sources is going to drive explorgation abroad. And sunday at 4 00 p. M. Eastern on real america, the 1979 United Nations film the Palestinian People do have rights. Violence breeds hatred. Retaliation brings only further retaliation. An eye for an eye is often paid at high Interest Rates in our day and age. And at 6 30 recall reagans 198 0e trip to berlin and the gate speech. He knew it was a great applaud line, and i knew it was authentic ronald reagan. But history as president obama said, has been hard. And of course we would never celebrate that famous speech if in fact the events of 1989 had not traspired the way they did. For our complete channel line up go to cspan. Org. And now rick perry testifies before the Natural Resources committee on president trumps proposed 2018 budget for the department and its agencies. This is an hour and 40 minutes. Good morning, everyone. The committee will come to order. I apologize for the delayed start. Hopefully we will have an opportunity to hear from the secretary and learn the president s views for the department of energy. Secretary carry, i want to welcome you to your first hearing following your bipartisan confirmation in the