Prescribing drugs is a normal part of a medical doctor’s work. According to the Centers for Disease Control and Prevention, approximately half of Americans have taken at least one prescription drug in the past 30 days. In order for drug companies to tap into this huge market, pharmaceutical sales representatives approach doctors to market and hype the company’s drugs. Some salespersons act professionally and follow the law, but others do not. With millions of prescriptions written daily around the country, how can physicians recognize pharmaceutical fraud, and what should they do if they suspect misconduct?
Pharmaceutical representatives who maintain legal sales procedures will have solid sales presentations that show only drug uses approved by the FDA. An underhanded pharmaceutical salesperson might stress off-label uses of drugs in their marketing presentation, or offer a doctor cash, vacations, trips or other valuable services - referred to as kickbacks - to bribe doctors into prescribing a particular drug.
As an attorney who handles whistleblower litigation cases, and some of the most high-profile cases in our country’s history, I have seen evidence of doctors accepting kickbacks and been contacted by doctors who were offered kickbacks and suspected some type of pharmaceutical fraud was active. Doctors should understand that the federal anti-kickback strategy prohibits a party from making or accepting any type of payment, cash, trips or free goods that are intended to encourage them to buy more products or prescribe a certain drug. It is illegal to offer a doctor paid travel explicitly in exchange for their agreement to prescribe a drug, and it is illegal for a doctor to accept this kickback. If doctors are offered any type of goods or services, they should decline them.
Illegal pharmaceutical strategies manipulate doctors to grow their drug sales, but in doing so the drug companies are defrauding the government. When a sales representative markets a drug for uses that the FDA has not approved, and a doctor prescribes a drug for a condition the FDA has not approved for that drug based solely on that marketing pitch, insurance companies or government programs that cover prescription expenses are being defrauded.
Sometimes physicians are fully aware of the misconduct and choose to illegally accept and enjoy kickbacks. One way this type of fraud is revealed is through a whistleblower employee who generally works closely with the doctor.
Whether doctors themselves wish to report fraudulent acts of pharmaceutical representatives, or if medical staff seek to report doctors accepting kickbacks, the reporting individual can contact their human resources department, a whistleblower litigation attorney or the federal government. Some workers may be concerned their employment could be compromised if they report fraud. There are federal statutes that protect whistleblowers, and the United States Department of Labor runs a Whistleblower Protection Program.