NJBiz: Lawsuit ads may harm NJ patients, stifle innovation

By Jeanette Hoffman, Patients Come First New Jersey’s Executive Director

You’ve probably heard the ads on TV or seen them in your social media feed: “Have you taken Medicine X and experienced symptoms of Y? You may be entitled to compensation! Just fill out this short survey … ”

From medical devices to prescription drugs to the food we eat, New Jerseyans are inundated with alarming commercials that say the things we consume every day may cause serious injury or even death. Backed by the aggressive campaigns of trial lawyers, these ads are less about public health and more concerned with targeting health care products with fear-mongering ads to incentivize the filing of high-volume lawsuit claims.

In fact, many of these commercials omit critical medical information, including the fact that these drugs remain U.S. Food and Drug Administration-approved and that patients shouldn’t stop using medicines or devices without consulting their doctor. However, because the ads feature words like “health alert” or “medical alert,” consumers may believe they are legitimate public service announcements — and many patients may stop taking their treatments without talking to their physicians. This can be very dangerous, particularly for patients with chronic diseases.

However, these ads are less about being Public Service Announcements or medical advice and are now more a part of a sophisticated legal marketing strategy, undertaken by trial lawyers, to get more consumers to file lawsuits against a product. For example, in 2023 alone, nearly $1.2 billion was spent on 16 million legal ads (or 45,000 TV ads every day). Trial lawyers turn to these ads because of their huge and easy payouts, with many attorneys taking 30%–40% of case winnings.

Because of the misconception that these lawsuit ads are urgent and advise consumers to stop taking products immediately, there are cases of patients who’ve even died because they’ve stopped taking their prescriptions without consulting their doctor after watching these misleading commercials.

One such example is the case of lawsuit ads targeting the drug Xarelto. Back in 2014, trial lawyers spent nearly $1 billion on ads telling viewers that Xarelto could cause uncontrollable bleeding. As a result, the FDA reported 31 instances of patients who, after seeing the commercial, stopped taking Xarelto as prescribed and later experienced serious injury or death.

Despite the fact that lawyers had recruited 29,000 claims for a class action, several juries ruled that Xarelto’s manufacturer had properly warned physicians of the risks and provided instructions of what to do if patients experience these risks. In every one of the six trials, the manufacturer prevailed, and the lawsuits failed.

Both the American Medical Association and the AARP have expressed concerns regarding the impact of lawsuit advertisements on patient health and breaking the trust and comfortability between the physician-patient relationship. In 2016, the AMA noted that these ads often emphasize potential severe side effects without providing context about the actual risks or benefits of the medications, leading to unnecessary fear among patients. These ads cause patients to not only question their medications but also question the integrity of their doctors and the medical community. AARP also strongly recommended that doctors and patients have a conversation about the medication before a patient chooses to stop or alter their treatment plan.

Mass tort litigation can also pose serious challenges to the medical research industry by discouraging innovation and investment in new treatments. Pharmaceutical companies and medical device manufacturers often invest billions of dollars in research and development to bring new products to market.

However, the threat of large-scale lawsuits, even when the scientific basis for claims is weak, can deter companies from pursuing groundbreaking innovations. If manufacturers fear that a product could become the target of mass litigation, they may be less willing to develop treatments for complex diseases, ultimately slowing medical progress and limiting options for patients in need.

Read the full op-ed here in NJBiz.