Sunshine Act: Are Doctors Still Enjoying Free Lunches From Drug Reps?

Leigh Page


November 21, 2017

In This Article

Data Makes Doctors a Target

Although many patients don't seem much interested in the Open Payments website, these very granular data are a boon for health systems researchers as well as investigative journalists, plaintiff's attorneys, and federal agents.

Many doctors suspected early on that this highly detailed database would make it easy to gather sensitive information on them. In a 2012 survey,[13] before the database opened, 27% of physicians said they opposed it because it could be an invasion of privacy.

Physicians have no privacy rights to the data. "Being on the list will feel like public shaming to many physicians," Dugan Maddux, MD, an executive at Acumen Physician Solutions, a nephrology software company, predicted in a 2014 article.[25] Using the website, media outlets can write about doctors who were listed as having very high payments, as the Boston Globe did in a front-page story[26] in 2014.

In malpractice litigation, a plaintiff's attorney could "twist the often inaccurate [Open Payments] reports and use it to defame your character in front of a jury who otherwise would be predisposed to trust a doctor," predicted a physician commenting on the 2014 Medscape article.[13]

Open Payment Enforces Fraud and Abuse Laws

This is a real threat, according to a Boston malpractice attorney in a 2014 article.[27] "In some malpractice cases, there could be an inference or circumstantial evidence that the physician's independent judgment was clouded by financial relationships," he stated.

Physicians who are paid high amounts by industry have always risked violating federal fraud and abuse laws. Stark Law regulations contain a "safe harbor" exemption for nonmonetary compensation, such as free meals, that had a limit of $330 in 2012; however, this shield does not apply to direct payments, such as consultancies, according to a 2012 article[28] by a healthcare attorney.

Rooting out these relationships, however, was always very difficult—until, that is, Open Payments came along. In its 2017 work plan,[29] the Office of Inspector General of the Department of Health and Human Services (HHS), which enforces fraud and abuse laws, indicated that it will look into these data.

In 2017, "we will analyze 2015 data extracted from the Open Payments website to determine the number and nature of financial interests," the work plan stated. "We will also determine how much Medicare paid for drugs and [medical supplies] ordered by physicians who had financial relationships with manufacturers."


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