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Qui Tam Lawsuits Accuse Pharma Companies of White Coat Marketing

Dec. 27, 2017 – Washington D.C. — Recently unsealed lawsuits accuse international drug companies of hiring nurses to improperly promote their drugs to prescribers in violation of anti-kickback laws. Initially brought by whistleblowers, the suits allege Gilead Sciences, Amgen and Bayer Pharmaceuticals caused government healthcare programs to pay for prescriptions that were tainted by kickbacks.

The fraud alleged in the lawsuits, known as “white coat marketing,” has caught the Justice Department’s attention in recent months. Several high profile cases filed this year involve similar allegations where nurses or certified educators were accused of moonlighting as drug company sales representatives.

A fraud scheme involving white coat marketing typically works like this: a drug or medical device company pays nurses or certified educators (or a third party hires nurses on the company’s behalf) to provide independent medical advice in connection with its product line when, in fact, the nurses or educators act as undercover sales representatives for the company.

Physicians typically view nurses as better credentialed and more credible than those working in drug sales. This provides nurses with more access to prescribers, access that drug companies covet. Nurses are also in the position of being able to offer value propositions that drug sales reps cannot, like nursing support to prescribers, for example. This quid pro quo, however, is illegal.

What is White Coat Marketing?

On the surface, there is nothing wrong with pharmaceutical companies hiring nurses—many drug makers regularly deploy nurses to educate physicians and patients on their products. For example, a company that manufactures an injectable medication might deploy nurses to show doctors and patients how to inject the drug safely, how to store the drug, what to do if patients miss a treatment, or what side effects are expected while taking the drug.

Administering this education does not constitute a problem in and of itself. However, if drug company nurses consistently advocate for one particular drug over competing drugs, or offer in-kind remuneration in return for more prescriptions, that represents a problem because prescribers consider the profit motive in addition to the health and well-being of their patients.

The Office of Inspector General (OIG) has warned against the practice of using nurses to promote particular drugs:

“The fraud and abuse risks are compounded where … a physician or other health care professional is involved in the marketing activity — a practice sometimes referred to as ‘white coat’ marketing. White coat marketing is closely scrutinized under the anti-kickback statute because physicians and other health care professionals are in an exceptional position of public trust and this may exert undue influence when recommending healthcare-related items or services…”

White Coat Marketing Allegations Against Gilead Sciences, Amgen and Bayer

Gilead Sciences, Amgen and Bayer are accused of contracting with third parties to hire nurses to help them gain direct access to prescribers and patients. According to the lawsuits, the drug makers wished to cloak themselves in the uniforms of the third party nurses and push physicians to prescribe and patients to request prescriptions for Gilead drugs.

The lawsuits accuse the three companies of providing in-kind remuneration in the form of free nursing services for physicians to induce them to prescribe their drugs. The drug makers are also accused of providing reimbursement support services to physicians to encourage more prescriptions. Both of these accusations would have saved physicians thousands of dollars in administrative expenses.

As a result of the marketing practices alleged in the lawsuits, government health care agencies paid for prescriptions that were tainted by kickbacks. The anti-kickback statute prohibits any individual or entity from the offering, paying, soliciting, or receiving any “remuneration,” which includes “any kickback, bribe, or rebate” to “any person to induce such person” to purchase or recommend a drug or service that is covered by government healthcare programs.

Eli Lilly faced nearly identical allegations in a lawsuit unsealed last month, and a whistleblower lawsuit unsealed earlier this year accused Novo Nordisk of similar misconduct. Last year, Alexion Pharmaceuticals was named in a lawsuit that accused the company of white coat marketing. Alexion allegedly organized its operations so that its nursing staff reported to its sales team, which put undue pressure on the nurses to maintain customers.

Whistleblowers a Vital Weapon Against Pharmaceutical Fraud

Whistleblowers were responsible for bringing many of this year’s fraud cases to the government’s attention. If you are privy to similar misconduct involving drug company nurses operating as sales reps, it is in your best interest to speak with an experienced whistleblower lawyer about filing a claim on the government’s behalf.

By coming forward you are not only helping to preserve the integrity of government healthcare programs, you are also putting yourself in a position to receive a whistleblower reward for your efforts. Whistleblower cases that lead to a successful enforcement action can earn the relator between 15 and 25 percent of any money returned to the government.

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