SACRAMENTO - California's lawmakers have passed a bill aimed at combating what supporters claim is misleading advertising by plaintiffs' attorneys.

The bill, AB 3217, targets advertisements by law firms wanting to attract business by claiming certain drugs are dangerous or medical devices defective. The bill passed committee last week, and the full Assembly approved the bill Thursday.

Berman
Berman

While amended as it went through committee, a main sponsor of the bill, the Civil Justice Association of California (CJAC), welcomed its passage by 71-0.

It specifies that an advertisement may be considered materially misleading if it understates the benefits of Federal Drug Administration-approved medications or medical devices, or overstates the risks.

Further, a commercial can be considered misleading if a material fact is omitted by the law firm.

Supporters of the bill were driven by the belief that legal advertising is out of control, with CJAC president John Doherty describing it as akin to the "wild west."

"We have $1 billion worth of trial attorney advertising a year," Doherty told the Northern California Record, "and this is not a situation where consumers are looking for attorneys, it is attorneys looking for clients."

He added, "It is like the wild west, and they can make almost any claim."

The danger, Doherty said, is that consumers, or patients, will watch these commercials and stop taking their medications or using medical devices.

An FDA report from late 2016 in response to a Congressional inquiry showed 61 patients stopped using the blood-thinners Xarelto or Pradaxa after seeing commercials. Of that group, six died – three from strokes, one from cardiac arrest, one from a pulmonary embolism and one from an unreported cause.

A paper released last year by the U.S. Chamber Institute for Legal Reform, which owns the Northern California Record, included testimonials from doctors who had a patient stop using his or her medication. Dr. Ilana Kutinsky said she treated a woman for several years, finally convincing her to take anti-coagulates.

When the woman had a massive stroke three years later, she was surprised to find that, two weeks earlier, the woman had received a flyer in the mail that warned her against using the medicine.

“She didn’t want to die and so she stopped her medication. She didn’t want to ‘bother’ me and decided to wait until her next appointment to discuss her decision,” Kutinsky said.

“Patients are dying because they are afraid to take the medications prescribed for them due to the fear brought on by these negative and one-sided campaigns.”

Doherty said it was unfortunate that some of the original language of the bill, introduced by Assemblymember Marc Berman, was removed during passage through committee.

Provisions removed included a requirement that commercials include a warning that consumers should consult with their doctor before stopping taking a medication. Other removed ones related to patient privacy, including what would have been a a bar on obtaining, selling, transferring or disclosing health information for the purposes of soliciting legal services.

"My hope is that the bill will lead those putting forth these advertisements to more carefully consider how they characterize both the upside and downside of drugs and medical devices," Berman said during a recent Judiciary Committee meeting.

Nevertheless, Doherty said, the bill is an important step in protecting the public, and people's health, from what his organization claims is misleading advertisements.

The CJAC president welcomed its passage through the Assembly, but said it was hard to predict what will happen in the Senate. It appears, he said, that trial attorneys did not object in any strenuous way to it passing the Assembly.

Doherty said he does believe this bill, if passed and signed by Gov. Jerry Brown, will offer some protection to individuals caught up in a practice detailed recently by the New York Times.

The article examined how lawyers, marketers and doctors worked together to encourage women who claim to have been damaged by mesh implants to go through corrective surgery.

More than 100,000 women claim they have been damaged by mesh implants, with manufacturers setting aside $3 billion to cover settlements, according to the Times story.

But it is claimed, in court documents and by individuals, that some women have been enticed into corrective surgery, contacted by cold-calling marketers and paid for by third-party funders, in order to increase the amounts expected to be awarded following settlements.

There is a concern, said Doherty, that consumers are enticed into the arms of law firms via scare tactic advertisementss. Cold callers can get in direct contact with patients, and know their medical history.

"This bill is still relevant because people contacted do not know how they got the information," Doherty said.

He added, "They do remember answering an advertisement, calling the number, and giving information that is then sold or transferred over to law firms and others."

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