Richard Fogl and Rick Robinson interviewed by Pharma in
Partners Frederick Robinson and Richard Fogl comment on
mandatory reporting in the pharmaceutical industry.
The below article was originally published by Pharma in
Focus and has been reproduced in full with permission.
Legal warning on new transparency
While Medicines Australia and member companies ponder their
response to the ACCC's draft determination calling for even
greater transparency, lawyers are warning that we should not rush
into a system of greater reporting until the US experience becomes
Richard Fogl, partner at Norton Rose Fulbright in Sydney, says:
"On the one hand there are potential benefits to making more
information available, which we may see arise in the US once the
data being collected under the Sunshine Act becomes more complete
and is properly analysed."
However, he told Pharma in Focus that Australia should
not "rush" into a system of greater reporting until the
US experience becomes clearer.
"We need to look at how our current system works and
whether mandatory data reporting would cause information overload
that would result in people jumping to the simplistic conclusion,
as opposed to a considered one after having analysed all the
data," Mr Fogl said. "Jumping to conclusions is not going
to be conducive to a thoughtful analysis of that
Rick Robinson, Norton Rose Fulbright global co-head of life
science and healthcare based in Washington DC, says following the
recent release of US Sunshine Act data that the media has been
"pretty balanced about its coverage about the information that
is being reported" so far. But it's still a case of wait
and see, as there are many uses for individual payments data, aside
from consumers looking up their doctors to see what types of
payments they are getting.
For example, he told Pharma in Focus the US government
is already looking at matching that data with another set of data
on doctors' utilisation of outpatient services, and hospitals
are checking if their doctors have disclosed conflicts of interest
accurately. Lawyers will look at the data if a doctor is involved
in a medical malpractice case, "to see if there is a way they
can argue if the doctor is corrupt".
Mr Robinson adds that there is also competitive information in
there that pharma companies might want to take advantage of.
"If you're ... a pharma company and you're not getting
traction with a doctor, might you want to look up the information
to see if the doctor is getting payments from your competitor, and
so you can ... maybe understand why you are not getting any
traction with them."
He points out that one of the things that the US government
hopes will happen is that over time, payments will go down, as a
result of transparency reporting. In the US, where some companies
have had to reveal such information as a result of fraud
investigation settlements, "I think it is fair to say that
they have seen the payments go down over time", Mr Robinson
"Because, one, some doctors don't want to have their
names in the newspapers as receiving the payments so they'd
rather do the work and not be paid. And then ... companies are also
really scrutinising the arrangements, saying ''do we really
need ten doctors on the advisory panel? Could five be
enough?'' So I think transparency will have some
disinfecting effect - and that's the idea behind transparency
and I think that will turn out to be true."
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Liability was apportioned between the VMO, Dr.Brown, and the hospital on an 80/20 basis in favour of the hospital.
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