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Via America’s Lawyer: Mike Papantonio and Attorney Dan Soloway talk about how the last prescription your Dr. gave you was probably the result of pharmaceutical kickbacks in cash.


Mike Papantonio: Every day, patients in the United States put their lives in the hands of doctors, but sometimes that prescription that you take to the pharmacy after visiting your doctor wasn’t written because the doctor really believes it’s the best treatment for you. Sometimes, it was given to you because the doctor is getting incentives from the drugmaker to write you that prescription. In recent years, the problem of big pharma kickbacks has finally received the level of attention that it deserves. News stories have emerged showing that doctors are being given financial compensation, luxury vacations, and expensive meals all paid for by drug companies in exchange for medical professionals writing prescriptions for their medications instead of competitive medicine.

The federal anti kickback statute is a criminal statute that prohibits the exchange or even the offer to exchange anything of value to reward the referral of federal healthcare program business. This applies to both drug companies and to doctors who accept these rewards, but for too long this statute has been completely ignored by medical professionals putting patients in danger by being given medications that may not be the best course of treatment just because the doctors are hoping for a few more bonuses from big pharma.

Joining me now to talk about this is attorney Dan Soloway. Dan, tell us how bad the problem of big pharma’s kickbacks have become in the United States. Every day, every week, if you’re really paying attention to this, somebody is being fined. What’s your take?

Dan Soloway: My take, Mike, is that the problem is big and the problem is getting worse. The statistics show that 65% of all doctors are now accepting kickbacks and the kickbacks amount to 8.18 million in a yearly time period. What we’re finding through the analyses is the impact that big pharma is having on the actual writing of the prescriptions is something that can be measured, it’s significant, and it’s benefiting their bottom line.

Mike Papantonio: Dan, what do the numbers tell us about how effective these kickbacks are becoming where it comes to prescriptions being written because some doctor has gotten something special from a drug company? We used to see this and all of a sudden the government got involved and said no we’re going to stop it. It seemed like they put the skids down on it. Now, this seems to be reemerging in a really big way. What’s your take?

Dan Soloway: Well, I think the numbers are showing that when the doctors are receiving these kickbacks, there’s a clear relationship between those doctors and the amount of brand name prescriptions they are putting out there for their patients. What they did is they compared those doctors who were getting the kickbacks with those doctors who were receiving no kickbacks and there’s a measurable increase in not only the actual prescription of brand name drugs but how much of the brand names they were prescribing. You’re talking about billions of dollars going into the pockets of these doctors and it having an immediate and measurable impact compared to doctors who take no kickbacks at all.

Mike Papantonio: We’ve learned in recent months that opioid makers, for example, were using this same kind of scheme to push their pills on to Americans. Tell us about their roles in all of this. We know the disaster. We know that as you and I speaking today 150 people will die of a drug overdose and it’s all, if you follow the story, most of the time it’s related to opioids where they go from opioids to heroin or sometimes they simply overdose on the opioids. What is your take on that issue? How big was the push by the drug industry?

Dan Soloway: I think the push by the opioid manufacturer is the worst of anyone. It’s been coupled with, I know a recent arrest of that doctor Kapoor who was with Insys, he was pushing that Fentanyl spray, which is 100 times more powerful than morphine, but he coupled his kickbacks together with fraud and other illegal conduct in a nationwide conspiracy to push these drugs on non-cancer patients. They were pushing, these doctors were writing prescriptions for this Fentanyl for people who had car accidents. Now, is it any surprise that people are dying as a result of the opioid manufacturers pushing their drugs? It’s coming down to the worse common denominator, which is not just medications that shouldn’t prescribed to particular patients, but those medications are killing those patients.

The opioid manufacturers are the worst culprits.

Mike Papantonio: Yeah. What we saw as a matter of fact to add to that, we actually saw the industry go out and hire doctors, maybe doctors and scientists that worked for universities, they might’ve worked for Harvard, Yale, Princeton, some of the big universities, to create literature that was all a fraud. It was literature that said doc, you know what, if you prescribe this, you’re going to fine because people don’t really become addicted to opioids. We have the literature. We’ve read it. We’ve seen it where you would have the sales people showing up in a doctor’s office and saying all these things that you’re worried with addiction and all, don’t worry about it because here is this article and it was written by a fraud.

The fraud was paid a lot of money. He’s a doctor. He’s a scientist and all of a sudden, you look credible so there’s a lot of parts to that opioid story. A lot of times, that same thing takes place, as you know, with all pharmaceuticals where you’ll have some university create some document that’s nothing but fraud. They phony up the real clinical information and all of a sudden, doctors are told basically a lie and the person that suffers there is the patient. Tell us about the anti kickback statute. What does it say and what kind of punishments does it call for, Dan, when these kickbacks are proven? It seems to be proven … Every week, I’m seeing a story in one of the journals about how bad this has gotten.

What’s your take?

Dan Soloway: Well, remember, the anti kickback statute only criminalizes that conduct where it’s done for the purpose of giving a federally paid for benefit to big pharma. In other words, there’s 65% of all doctors taking these kickbacks, these trips, these gifts, sometimes even stock in the company of the big pharmaceutical company. They have to give something in return for that. What we’re seeing, the statute itself says you can go to prison for five years, you can have a $25,000 fine, and you can be thrown out of the Medicare program such that your bills are not going to get paid by Medicare. Remember, one out of every four prescriptions is paid for in this country by Medicare, so it’s got some teeth in it. What we’re seeing is the prosecutions are not seeking the convictions.

They’re stopping. They’re settling the cases with big pharma for billions in fines, but they’re not throwing them out of Medicare. The doctors aren’t getting any penalties or sanctions that I’m seeing. Big pharmaceuticals are, but it’s limited to billions of dollars, which they make every year.

Mike Papantonio: Well, Dan, isn’t there another part to this? Every night, if you turn on the television and you go to the corporate media, NBC, CBS, ABC, these media corporations are making billions of dollars by selling pharmaceuticals. If you turn on the nightly news, you will see between seven and nine pharmaceutical advertisements just in the nightly news. The first thing that happens is the patient is bombarded by the pharmaceutical company about you need this drug if you have restless leg. You need this drug if you’ve been sad lately. You need this drug if you can’t sleep at night. Then add onto that these programs that they do for doctors. Yeah, doc, we’re going to take you to Hawaii.

We’re going to give you dinner every Thursday night where we’re going to give and put a show on for you and we’re going to tell you how important our drug is, all kinds of scams they got going. The point is this the doctor is overwhelmed with that and I’m wondering what types of … In order to change it, I think you’d agree. You’ve been in the criminal business as a defense lawyer and a prosecutor, I believe, over the years and you have seen that if you don’t punish criminals, you’re going to have the same thing happen again. I’m wondering what kind of punishments have been handed down to drug companies and doctors that have been found guilty of kickbacks. You mentioned that usually there are none.

Can you cite any where a doctor or pharmaceutical companies really had to spend time in prison because of this?

Dan Soloway: That’s an excellent question and the answer is no. I can’t cite criminals or a big pharmaceutical company CEO going to prison. Even worse than that, when they pay for instance. I’ve got a list right here. It’s got GlaxoSmithKline, three billion, Pfizer, 2.3 billion, Johnson & Johnson, two billion. These are settlements of criminal and sometimes false claims act prosecutions as well as civil prosecutions and they are settling. They’re settling where the end pusher, which could be a pharmaceutical. It could be a place that is simply distributing the drugs like a pharmacy or the doctor who is pushing it. I am finding no punishment for those individuals, even though the anti kickback statute punishes both sides supposedly.

What we’re seeing is a prosecution resulting only in civil and criminal penalties in the dollars and cents and nothing more that I can see. I’m just not seeing it being very effective because all these big pharma companies are continuing to spend the money. They’re seeing an impact on their bottom line, so they have no reason to stop. If they have to pay a billion dollar fine, so be it.

Mike Papantonio: It’s a heck of a thing, Dan, where we’ve all come to self help when you don’t even feel comfortable taking a drug unless it’s been on the market for 10 years, but I tell everybody that. No reason to take it, unless it’s going to save your life. Unless you’re out of options, do not take a drug that has not been on the market for 10 years. Dan Soloway, thank you for joining me. Keep up the great work out there. Okay.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.