Prescription for Conflict

[October 3rd, 2007]

The practice of pharmaceutical companies paying big money to doctors in hopes of influencing what drugs they prescribe is under investigation by Oregon’s Department of Justice.

“We have three investigations going on right now that concern this,’’ says DOJ spokeswoman Jan Margosian. She wouldn’t be more specific other than to say the DOJ intends to “file a lawsuit or announce a settlement agreement within the next six months” on one of the cases.

Margosian expects the three current investigations to be a harbinger of even more under current unfair trade practices laws. But she says the Legislature could have strengthened the regulatory front if it had passed a statute this year that directly cracked down on the perks.

Legislators agree about the need for a specific anti-perks law. But Margosian’s version of history infuriates those same lawmakers who tried to get two anti-perks bills passed. They blame the DOJ for the death of the measure they thought had the best chance.

“That’s really aggravating. I mean that really pisses me off,’’ says Rep. Mitch Greenlick (D-Portland). “If anybody wants to know why it’s not law, it’s them.”

One bill—House Bill 2523—focused on disclosure, requiring pharmaceutical companies to tell the DOJ “the value, nature and purpose of any gift, fee, payment, subsidy or other economic benefit that is provided.” The other bill—House Bill 2648—would have prohibited gifts above $100.

Greenlick, who was director of Kaiser Permanente Health Center for 31 years, focused on HB 2648 because there was less opposition to it from the pharmaceutical lobby. But the DOJ put a $200,000 price tag on the bill, which required it to go to the Ways and Means Committee. The DOJ later lowered the cost estimate to $100,000, but the measure died in Ways and Means because it came too late in the session for the budget-writing committee.

DOJ legislative coordinator Stephanie Soden says the department is definitely interested in reviving the bill. But Soden says the legislative fiscal office requires state agencies to estimate bills’ fiscal impact and that $100,000 is a “consistent cost we’ve added to other bills” for attorney time and related fees to get rules into place.

Critics of Big Pharma providing perks to docs say exchanges between drug companies and docs raise conflict-of-interest questions.

“The buyer is the patient. The seller is the pharmaceutical company,” says Dr. John Santa, an internist and associate professor of public health at Portland State University. “But there’s a trusted agent—the doctor or hospital that many times is the real decision-maker. The question is whether it’s fair for the seller to be able to bribe the trusted agent and for the buyer to not know that the trusted agent has been bribed.”

The Pharmaceutical Research and Manufacturers Association of America says it has guidelines that make any laws superfluous. Its marketing code says “all forms of entertainment, including competitive sporting events and games of golf, are inappropriate.” And PhRMA Senior Vice President Ken Johnson said in a statement that “only modest meals should be allowed,” that gifts shouldn’t top $100 and only support a medical practice, like a stethoscope or medical dictionary.

Local medical institutions also have rules in place. At OHSU, gifts are limited to $100. At Kaiser Permanente, there is no dollar limit on gifts, but doctors can’t receive gifts from vendors “which might create an actual, implied or perceived obligation to initiate or continue the use of the vendor’s product or services.”

Greenlick says a law is needed because PhRMA’s “rules” are voluntary. PhRMA and Greenlick both say they worked toward compromise, one that Greenlick says would have institutionalized PhRMA’s recommendations. He plans to return with tougher legislation in 2009.

Giving a doc a golf club isn’t the issue, he says. It’s the payments for speeches and speaker’s bureaus that force up medications’ cost. “This isn’t a $100 dinner,’’ Greenlick says. “This is 10,000 and 20,000 and 100,000 bucks.”