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Supreme Court Project files brief in pharmaceutical case

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Tim Hussey

A recent appeals court decision that challenges prior labor law has inspired an amici curiae brief by Emory Law students. The brief was filed with the U.S. Supreme Court on behalf of physicians who see potential ethical conflicts in the case, which involves defining the relationship between doctors and pharmaceutical sales representatives.

Michael Shane Christopher and Frank Buchanan v. SmithKline Beecham Corp., D/B/A/ GlaxoSmithKline, will be argued before the Court on April 16. A decision is expected by June, says second-year student Kedar Bhatia, president of the Emory Law School Supreme Court Advocacy Project. The physicians for whom the students filed the brief are Dr. Gregory Curfman, executive editor of the New England Journal of Medicine and Dr. Howard Brody, director of the Institute for Medical Humanities, University of Texas Medical Branch. Sarah Shalf, administrative professor for field placement and co-director of Emory Law’s Professionalism Program, is counsel of record.

The brief focuses on a narrow part of the issue—the Court of Appeals for the 9th Circuit decision to override the U.S. Department of Labor definition and view pharmaceutical sales representatives as “outside salesmen.”

That’s an issue for physicians because the perception of a sales-buyer relationship could erode public trust in the medical profession.

“We’re arguing against doctors becoming mere buyers in a sales transaction,” says third-year student Audrey Patten, who worked on the brief with Bhatia and first-year students Benjamin Smyser and Micah Revell. As a buyer, a physician is less likely to be viewed as trustworthy by his or her patients, the brief argues. Also, the decision to prescribe a particular drug is much more complex and ethically bound than the level of decision-making typically involved in sales, they say.

“Labeling pharmaceutical sales representatives as salesmen is problematic because it ignores the ethical responsibilities that doctors have to their patients,” Bhatia says. “The 9th Circuit completely disregarded the high ethical standards that physicians are bound to uphold, and those doctors have an interest in ensuring that the courts consider that position in the future.”

“The Department of Labor properly labeled the relationship as informational and educational,” the brief says. To “casually push aside” the Department of Labor’s classification could lead to further erosion of the perception of a physician’s duty to act ethically and morally, Patten says.

“The more the public perceives that physicians are easily swayed by sales pitches from the pharmaceutical industry, the more likely it is that social trust in physicians will erode,” the brief says.

“The Department of Labor recognized that PSRs were not salesmen, and we believe the Supreme Court should rely on that interpretation,” Bhatia says. “The 9th Circuit failed to give proper deference to that interpretation, and our brief highlights one of many reasons the Court should reverse the court below and stick with the Department of Labor position.”

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