Judge Slams Feds For Its Attempt To Punish Another Whistleblower

Should Doctors Who Put Their Names On Ghostwritten 'Journal' Articles For Big Pharma Be Sued For Fraud?

from the and-don't-forget-racketeering dept

Fri, Aug 5th 2011 8:41am — Mike Masnick

A few years back, we wrote about one of the (many) nasty and nefarious practices of the pharma industry: ghostwriting scientific "review" articles that pretended to give an overview of research on a certain treatment, but which really promoted a specific treatment, while de-emphasizing the risks. These ghostwritten works were then made to look legitimate by getting a real doctor or academic to put their name on it, and then getting it published, sometimes in somewhat prestigious journals. Back in 2009, there was some movement on this story, as some Senators began investigating this practice... but not much came of it.

However, now, there's a fascinating article over at PLoS, arguing that guest authors who put their names on such ghostwritten papers should be charged with fraud under the RICO Act. The article argues that mere academic sanctions and/or banning such authors from publishing again in certain journals may not be enough. Instead, it suggests that a credible claim can be made in some cases on a RICO class action:

Because a journal�s readers are all harmed by the fraud, they may sue the guest in a civil RICO class action. One of their harms involves the value of the journal subscription. The subscription price represents the value of a year�s worth of articles that conform to the guidelines. Readers would not willingly pay for the fraudulent articles, as shown by the hypothetical example of a guest author who disclaims responsibility for authorship. Whether or not they read the article in question, its publication deprives them of the opportunity to read an article satisfying the journal�s requirements, and thus diminishes the value of their subscription. The harm may be measured by reducing the subscription price in proportion to the space devoted to the ghostwritten article. If the subscription costs $100, and the journal publishes 100 articles per year, it could be said that each subscriber suffers a $1 loss from a fraudulent article. The individual loss is small, but the aggregate loss to all subscribers may be significant�particularly if the cost is trebled under RICO.

While I find the whole practice of bogus pharma marketing of this nature to be ridiculous, I'm still not sure I see a strong RICO claim here. My guess is that a lot of courts would throw this kind of claim out pretty quickly. I agree that something should be done to stop ghostwritten articles, but I'm not convinced that potentially charging them under the RICO Act is going to be the most effective.

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Filed Under: fraud, ghost writing, journals, medical journals, pharmaceuticals, rico

22 Comments

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Nicedoggy, 5 Aug 2011 @ 9:04am

I prefer the light approach.

Plaster the name, face, occupation, work address all over repeatedly for five years so nobody forgets him for at least 10 years that should be punishment enough.
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Richard (profile), 5 Aug 2011 @ 9:04am

UK Research Assessment
These ghostwritten works were then made to look legitimate by getting a real doctor or academic to put their name on it, and then getting it published, sometimes in somewhat prestigious journals.

The current UK research assessment process is coming down on this practice, demanding evidence of authorship for papers submitted. I would have thought that the journals themselves will be forced to do the same soon - probably the best way to stamp it out.
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out_of_the_blue, 5 Aug 2011 @ 9:07am

You downgrade fraud to "ridiculous" at the end.
And don't support any action at all. One can reasonably conclude that you're merely defusing popular sentiment.
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:Lobo Santo (profile), 5 Aug 2011 @ 9:12am

In a word:
YES! Sue the bastards!

...

Hell, lately I've been pondering the possibility of drafting legislation to make opinion statements and logical fallacies a crime for politicians, lawyers & judges... this topic kinda falls right in line with that...
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DannyB (profile), 5 Aug 2011 @ 9:19am

Doctor should lose license
If a doctor puts their name on an article they did not write, they should still be held responsible if the article fraudulently claims to be real science.

One sanction that would work for a doctor is to lose their license.

Overall for doctors or academics, the best remedy is if there would be some mechanism to make it widely known that this person has put their name on a fraudulent article. If they put their name on it, they should be responsible for what it says.
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Christopher (profile), 5 Aug 2011 @ 9:26am

Disagree.
Nothing happened to the pharmas involved. Going after the doctors would be consistent if and only if the pharmas were punished, which they were not. In fact, I'd prefer to see the doctors used to prosecute the pharmas; I'd offer them full immunity if it helped punish the machines promulgating this fraud in the first place.

-C
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Ninja (profile), 5 Aug 2011 @ 10:03am

Re:
And let them sue back for defamation? Anonops. Wikileaks. Thank God those things are out there causing havoc!
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Chris-Mouse (profile), 5 Aug 2011 @ 10:19am

How about a simple requirement that everyone involved in writing and/or editing the paper must be listed on the front page, in order of the amount of writing they did. Also, individuals and corporations providing funding for the research described by the paper should be listed on the front page as well.
It won't stop corporations from ghostwriting articles, but it will make it a lot more obvious when it happens. It will also make such ghostwriting less effective as people treat it like the advertising it really is.
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omnivore, 5 Aug 2011 @ 10:21am

Profs/docs have been putting their name to papers they didn't write reporting research they didn't do for generations. Their grad students have been their (involunary?) ghostwriters. The pharmcos have just exploited existing practice. If you use RICO to go after such practices, you will have to take down the entire academic enterprise.
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Ron Rezendes (profile), 5 Aug 2011 @ 10:27am

Sure seems to fit a RICO case to me...
The pharma company and the doctor are obviously colluding in the dissemination of false information that is being presented as scientific fact. It honestly doesn't get much more damaging than that in the world of medicine and the information being published.
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Any Mouse (profile), 5 Aug 2011 @ 10:37am

Re: Re:
Can you claim defamation against the truth? Seems suspect.
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Nicedoggy, 5 Aug 2011 @ 10:38am

Re: Re:
They are not the only ones that can be "Ghostwriters".
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Any Mouse (profile), 5 Aug 2011 @ 10:39am

Re: You downgrade fraud to "ridiculous" at the end.
You claim he doesn't support any action at all. Can you show how you came to this conclusion when he only states he doesn't support RICO claims? Or are we back to jumping to conclusions that don't exist?
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Ron Rezendes (profile), 5 Aug 2011 @ 11:05am

Re:
So, ICE and DHS would have legitimate work to fill their time?!
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CommonSense (profile), 5 Aug 2011 @ 11:27am

Re: You downgrade fraud to "ridiculous" at the end.
or maybe..... he's just not trying to do your thinking for you, and leaving some of the work to the audience. Facts are here, his opinion is here, but he doesn't tell you what you should think...that's up to you.

Can be a tough concept to grasp, I understand, especially if you're used to Fox News or the like...
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Mr. Oizo, 5 Aug 2011 @ 11:38am

The problem is the 'high impact'
The problem is not that it is gostwritten, nor that someone else puts his name on it. The problem appears to me the money involved with high impact publications. If there would be no desire from universities (nor a requirement from the government), to have at least XXX high impact publications before you get funding, then these things would not happen.
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The eejit (profile), 5 Aug 2011 @ 12:29pm

Re: Re:
No, that would be sensible.
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Alien Bard, 5 Aug 2011 @ 1:48pm

It's interesting that the only recognized issue here is the financial harm to various businesses. The potential physical harm to the end consumers seems to be completely ignored or dismissed as unimportant.

Then again, I suppose that is the new trend. Corporate entities are more important then living entities, and they don't have to worry about physical or mental health. So those things can safely be removed from the equation.
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Anonymous Coward, 5 Aug 2011 @ 1:58pm

Shill reviewed... I mean peer reviewed scientific journals are full of this kind of fraud and it needs to be dealt with.
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WysiWyg (profile), 6 Aug 2011 @ 1:32am

I really don't see the problem. If they want to put their name on something, then let them take responsibility for it.

To me it should be treated exactly as if the doctors/whatever themselves wrote the article. That is, if it's found to be fraudulent, then they get to answer for it in court.

But I don't think that the very act of signing someone else' work should be illegal. It should however be a breach of contract with the publication.
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Gene Cavanaugh (profile), 6 Aug 2011 @ 1:32pm

Big Pharma
I know you get readers by being controversial, but under your reasoning, nothing of much importance in everyday life falls under RICO, so why have it?
In other words, even though I know this is just an off-the-top-of-the-head comment, it does not make you look very good.
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aikiwolfie (profile), 7 Aug 2011 @ 12:24pm

If this issue is affecting the peer review process then it should clearly not be allowed. But then again what you expect to happen in a privet healthcare system?
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