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
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.