Life Science Compliance Update

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March 02, 2012

Physician Payment Sunshine: USA Today Editorial Author Still Hiding in the Shadows vs. Stell bringing Sunlight to Sunshine

Flashlight
Now that the comment period for the Physician Payment Sunshine Act (Section 6002 of the Affordable Care Act) has closed, various news media have begun discussing and examining the potential impact this legislation and regulations will have on healthcare stakeholders.  

Unfortunately, these media have decided to focus on selling stories and headlines about “potential conflicts of interest,” instead of telling the true and balanced story behind physician-industry collaboration.  For example, a recent editorial from an unnamed author in USA Today, claimed—without providing any evidence (since none exists)—that “small-bore favors such as free samples, promotional trinkets, tickets to sporting events, and deli trays delivered to the office have evolved into practices that look more like outright bribes.” 

These kinds of claims are outright wrong and unethical.  They are nothing more than smoke and mirrors to promote an anti-industry agenda to support some peoples academic careers and livelihoods.  

The reality is, the kind of practices described above are practically non-existent, illegal, and banned by PhRMA and AdvaMed codes.  In fact, the USA Today article’s only mention of evidence of this activity came from a 2007 article.  And that article itself likely collected data from prior years.  So in its duty to report fair and balanced information, the USA Today failed by using old data and not even attempting to discuss the current state of industry.  

The article claims that while “the drug industry stopped paying for some restaurant meals and distributing trivial gifts such as mugs, pens and the like,” items like vacations thinly disguised as educational seminars and fees — kept flowing.  But this is absolutely incorrect.  ACCME and AMA rules ban such meetings for accredited educational programs, and while promotional programs may still exist, these have been restricted severely as well.  The “good old days,” as the author would like to believe still exist, are long gone. 

Consequently, the article then moves on to discuss the Physician Payment Sunshine Act, which requires pharmaceutical and medical device manufacturers to report and submit all payments they make over $10 to physicians and teaching hospitals.  The author’s viewpoint is that, “Physicians and medical schools are still fighting to limit the law's reach.” 

The article notes that, “Doctors insist that industry payments lead to valuable innovations, not to conflicts of interest.”  And the author admits that this is “sometimes true.”  But instead of delving into the lifesaving breakthroughs, treatments, and technologies that have come from physician-industry collaboration, the article and author does what mainstream media do best: dramatize reality to sell papers and sensationalize news, leaving the hardworking physicians and patients to suffer from their publishing and editorial greed.  

The article references “investigations” that have “turned up evidence of payments that could compromise patient care, drive up medical costs and weaken drug safety.” 

We do not condone the past behaviors of companies, executives, or employees who have engaged in deceptive, immoral and unethical behaviors.  Those individuals and parties who have defrauded our government and harmed patients deserve to be prosecuted to the fullest extent the law allows.  These investigations, however, are rare instances, and involve a tremendously small amount of individuals.  

The overwhelming majority of individual physicians who are consulting, researching, and educating physicians are ethical physicians.  They would not deceive or harm patients for a pen or pizza or for that matter $10,000.  These physicians, as we have quoted many times, work with industry to advance medicine, to teach their peers, to interact and learn from other experts, and to ensure better patient care.  

However, USA Today could care less about the lifesaving treatments and medical devices that industry and physicians are creating every day.  The author sensationalizes and stigmatizes physician-industry collaboration without even considering or mentioning the value these relationships provide.  There is no mention of how American lifespan has increased tremendously, how cancer and heart disease death rates have dropped significantly, and how medicines and treatments are reducing the incidence and costs of chronic diseases such as diabetes, hypertension, and asthma.  

The only thing the author even says is the following: “some paid collaborations between doctors and industry yield important medical discoveries.”  Hardly a journalistic attempt considering the significant emphasis and research the author put on the opposing view.

Instead, the article focuses on the few cases where investigations have showed that the proper firewalls and safeguards were not used or in place, which allowed the “potential for conflict” to appear.  

Opposing View 

Lance K. Stell offered the opposing view to the above editorial.  Of course, USA Today gave Stell half as many words to respond to the “majority view” noted above. 

Dr. Stell, who teaches medical ethics at Davidson College and at Carolinas Medical Center, noted that, Supporters of the Physician Payments Sunshine Act fail to take into account how expensive sunshine" would be.  He recognized how, “Requiring drug and medical device manufacturers to publicly report virtually every payment they make to physicians, physician groups and teaching hospitals will end up costing far more than the $224 million estimated for just the first year of compliance.” 

As Stell noted, however, “The biggest cost will be the valuable, socially useful physician-industry collaborations that simply won't occur.” 

In 2007, the measure's original sponsors, Sens. Chuck Grassley, R-Iowa, and Herb Kohl, D-Wis., argued that shedding light on industry payments to physicians would be good for the system. The Pew Prescription Project, alarmed by findings that more than 90% of physicians receive payments of some kind from the pharmaceutical industry, opined that patients deserve to know whether their doctors are on the take. 

“Sunshine supporters always affirm that many financial relationships between medicine and industry are necessary and beneficial. However, the measure's title implies that such relationships need detoxification by exposure to "sunshine," the best disinfectant.”

Stell asserted that, “The new law stigmatizes payments and deters accepting them. But it's utopian to suppose that doctors will give their time and effort for free to do socially useful research and peer education.”  In fact, many physicians won't want to be enshrined in this hall of shame. 

Instead, Sunshine will just make physicians “require higher payments to provide what even "sunshine" supporters agree is valuable work. How much higher? That depends on how our most talented and innovative physicians price their time and how much compensation they'll charge for loss of anonymity and insinuations of corruption that a sunshine listing implies.” 

Ultimately, Stell noted that supporters of the Sunshine Act “foresee only benefit devoid of risk. But they've done no credible cost/benefit estimate. Reporting errors, misattribution and mistaken shaming will occur.” 

What is most problematic about this, as Stell points out, “the government candidly acknowledges that it has no empirical basis for estimating the frequency of improper payments, the likelihood that reporting will reduce them, or the likely effects on reducing the costs of medical care.” 

Conclusion 

As CMS begins going through the hundreds of comments stakeholders submitted on the proposed Sunshine regulations, the media will continue to press on about the potential impact of publishing physician payments.  It is important to remember in reading articles about physician-industry collaboration that many of the articles and journalists covering these topics will only take the viewpoint that industry is bad and payments for collaboration are inherently wrong.  

We encourage readers to do their own research, to ask their own doctors and healthcare providers about the important value industry provides to them, whether through education, research, new products and treatments, and grants.  While transparency and sunshine is important for patients and consumers, it is also important to know the context of these relationships and payments.  Patients should be skeptical about reading articles that stigmatize a few bad apples to generalize an entire profession of healthcare providers who are overwhelming ethical and practice medicine to improve patient health and advance science. 

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