Did Your Former Company’s Speaker Program Look Like This?
- Doctors were selected because they were high prescribers.
- The same doctors were repeatedly invited to speaker programs.
- Sales representatives were involved in selecting the speakers.
- Doctors received substantial payments for speaking.
- Programs were held at expensive restaurants.
- Little meaningful discussion of the drug occurred.
- Managers encouraged representatives to use particular doctors.
- The real objective appeared to be increasing prescriptions.
These aren’t hypothetical examples. Federal prosecutors have alleged substantially similar conduct in pharmaceutical False Claims Act kickback cases.
How Much Are Whistleblowers Paid in Speaker Program Cases?
A False Claims Act case is filed “under seal”, preventing the public and the defendant from knowing about the case. The Department of Justice then has 60 days (and often much longer) to evaluate the case and decide whether to intervene and take over primary responsibility for prosecuting the case.
If the government decides to intervene, the whistleblowers (called qui tam relators) and their attorneys are typically entitled to share 15% to 25% of the settlement, with shares often in the range of 15% to 18%.
If the government decides to not intervene and the relator prosecutes the case successfully without government assistance, the relator’s share is 25% to 30% of the settlement. The Biogen settlement is an example of a case prosecuted without the government’s assistance that resulted in a very exceptional reward to the qui tam relator.
Special Fraud Alert: Speaker Programs
The Office of Inspector General (OIG) issued a special fraud alert that lists the characteristics of speaker programs that may violate the kickback statute and the False Claims Act.
9(b) Particularity – Camburn v Novartis
The 9(b) particularity rule is often the main obstacle to a successful settlement.
Why Is It Illegal for Drug Companies to Pay Doctors for Prescriptions?
Many businesses are allowed to pay for referrals. Where a buyer is using his or her own money to pay for a good or service, the buyer has an incentive to compare prices and make sure the bargain is fair. Pharmaceutical prices are different. With Medicare, Medicaid, and other government programs the drug is often free or heavily subsidized. It costs a doctor no more to prescribe an expensive brand name pharmaceutical than a much less expensive generic. When speaker programs are used to pay doctors rather than just educate them, it can be expensive for taxpayers and contribute to our rapidly increasing national debt.
Protections for Whistleblowers
The False Claims Act protects employees from being fired, demoted, suspended, or harassed for reporting fraud. A whistleblower who is fired or penalized is entitled to reinstatement, double back pay, interest, compensation for emotional distress, attorney fees, and litigation costs for retaliation by an employer.
False Claims Act of 1863
History and focus of the federal False Claims Act
Christopher Crennen
Find Out If You Have a Good Case Anonymously
If you have worked in pharmaceutical sales, you may have evidence that a physician speaker program has gone beyond a purely educational purpose and has been used to reward doctors for prescribing your company’s drugs. Many employees are worried about losing their job or being otherwise penalized for reporting misconduct or filing a case under the False Claims Act.
I offer a way to find out your chances of success before filing a False Claims Act case. First, read over the list of questions below to see if you have the detailed, specific evidence needed to survive a motion to dismiss by the defendant before your case ever gets to trial.
If you believe you may have a good case, either call me at my home phone 303-777-8743 or email me chris@christophercrennen.com with a time I can call you to discuss your case. I often play pickleball from 7am to 10am MST. I can often be reached at my home number after 10am MST on weekdays and weekends.
When we talk on the phone, I don’t need or even want your last name or the names of the companies you’ve worked for. By keeping our call on a first name basis, there is added protection for your anonymity. On our first call I want to ask you some of the Questions About Speaker Programs on the bottom of this page. Read the questions and make note of any questions where you have evidence that speaker programs were being used to pay doctors for prescribing and not just for educational purposes.
If it sounds to me like you might have a case, I’ll contact one or more law firms that specialize in False Claims Act cases to see if they will take on the case. Law firms I contact are governed by professional rules of confidentiality of information as I am in Colorado.
Finding a law firm to handle a case is not always easy. False Claims Act cases are expensive and time consuming. Just the filing fee in federal district court is $405.00. After the complaint is filed under seal, the government has 60 days to study the case and decide whether to intervene and take over prosecution of the case. The government often asks for numerous extensions so it is not unusual for a case to remain under seal for months or years. A law firm needs to be convinced that there is a good chance of success before committing to a case.
After talking on the phone and calling law firms, we should have an idea of the chance your case will succeed. You can then decide to pursue the case or not as you wish. If the case is successful, my fees are a share of the agreed attorney fees and not in addition to other fees.
If you have a good case, I’d encourage you to follow through and become a qui tam relator for two reasons. First, these cases can be very financially rewarding for a successful relator. But equally important, the False Claims Act is one of the few tools available to slow down the amazing explosion of Medicare and Medicaid costs and the national debt since the adoption of Medicare and Medicaid in 1965.
When pharma incentivizes doctors to prescribe expensive brand name drugs over generics or lifestyle changes, the cost to government health care programs can be very high. Doctors say they are not influenced by pharma gifts and payments but studies show that prescribing patterns are changed.
My work and history can be seen on my website, christophercrennen.com. You can verify my attorney information by clicking here and typing my last name in the search field.
Questions About Speaker Programs
Basics: What’s your pharma work history? (For example: several yrs-sales rep-small co, many years-rep-manager-large co, 3 yrs-mngr-current large co), What are your duties as a rep and manager?, What was your role in arranging doctor speaker programs?, How long was your involvement in speaker programs?, How many speaker programs were held over what period of time?, Do you have dates, venues, and names of doctors and attendees at speaker events?, Can you identify the drugs and their prices that your company is competing against? Are any of the competitors low-cost generics?, Are the drugs your company sells sold throughout the United States?
Food: Did speeches include dinner?, Are programs held at expensive restaurants with alcohol?, What was the average cost of meals?, What were the highest cost meals?, Is free alcohol offered at meals?, Can you provide a list of restaurants where speaker programs were held?
Monitoring prescriptions: Are you able to see the volume of your company’s drugs that your doctor prescribes?, Do you use IQVIA, Symphony Health, or another company to track doctors’ prescriptions?, Do you track the amounts paid to doctors and the subsequent amounts paid by Medicare?, Was the prescribing history of speakers tracked?, Was the prescribing history of attendees tracked?, Are speaker fees based on prescription volume?, How did payment to doctors affect their volume of prescriptions?, Are doctors dropped as speakers or attendees if their volume of prescriptions does not increase?, Do you sell speciality drugs? Do you use specialized drug aggregators like IQVIA, Claritas Rx, or ConcertAI?
Paying doctors: Were different speakers paid different amounts?, How much was paid to doctors?, How much were high-prescribing doctors paid?, Is the amount of speaker compensation based on past or potential future prescriptions?, Are speakers paid more than the fair market value of the speaking?, Were excessive fees paid to speakers for canceled events?, Were doctors paid for events that never took place?, Were travel costs paid to speakers?, Have speaker training fees been paid to doctors?, Have consulting fees been paid to doctors?
Quotes: Was the intent of speaker programs to increase prescriptions?, Were statements made showing an intent to increase prescriptions?, Did managers make statements indicating a knowledge of wrongdoing?
Selecting doctors and attendees: How are doctors selected to be speakers?, Are speakers or attendees selected based on past or expected revenue?, Is a return on investment analysis used to identify speakers or attendees?, Who is invited to speeches?, What was the size and composition of the audience at the typical speaker program?, Are spouses and family members invited to speaker events?, Are a doctor’s staff members who do not have a business reason to attend invited to speaker events?, Were speakers also attendees at dinners?, Are attendees invited who have already attended?, Did groups of doctors repeatedly attend the same speaker program?, How often did prescribers hear the same talk?
Speech: Did the speech include a slide presentation?, Who prepared it?, At what different entertainment venues were speaker programs held?, Are programs held at restaurants, entertainment, or sports venues that are not suitable for educational programs?, Are programs offered with little substantive information about the risk, benefits, and uses of the medicine?, Was the only purpose of the speeches educational?, Are a large number of speaker programs held on the same product with no recent substantive change in information?