Doctor beware: some of those faxes arriving from drugmakers may be perfectly legitimate and not the sort of unwanted missive that have prompted some physicians to file lawsuits. Johnson & Johnson, in fact, won such a case when a federal judge last week tossed a lawsuit filed by a doctor who claimed two faxes concerning reimbursement information he received about the Levaquin antibiotic were unsolicited "junk."
The drugmaker succeeded in convincing US District Court Judge Freda Wolfson that the lawsuit filed by a Cincinnati physician named Jose Martinez did not violate the Telephone Consumer Protection Act, which bars transmitting unsolicited ads (read here. In making its case, J&J argued the faxes were not ads at all, but informational because they contained updated information about reimbursement by UnitedHealthcare, and such information is important to patients.
And J&J (JNJ) also asserted the faxes were 'transactional,' because they help maintain an ongoing relationship, which is supported by the law. And on this basis, the drugmaker and its marketing agent, Alert Marketing, contended that First Amendment rights are "at issue if informational speech is burdened with the 'draconian' penalties of the TCPA" (here is the lawsuit, the J&J response and the dismissal order). This is not the first time that a physician has filed such a lawsuit against a drugmaker over unwanted faxes. Three months ago, a St. Louis cardiologist filed a case against Forest Laboratories (FRX) for continually faxing as many as 40 invitations to attend seminars at fancy steakhouses that were held to promote its medications (back story). In each of the lawsuits, the physicians demanded $500 for each violation, although only the J&J lawsuit sought class-action status.
Even as the doctors claim that drugmakers are making a nuisance of themselves, such lawsuits may be seen as nuisance suits and a money grab. Nonetheless, the complaints suggest that some physicians are none too keen about unsolicited overtures. Then again, a fax about reimbursement coverage strikes us as legitimate information to convey to a physician, however it may be interpeted. This is the price to be paid for having a fax machine, after all.
fax pic thx to uscpsc on flickr
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