Mina Kimes 2012-09-21


    美国司法部将矛头对准了4名位居高位的高级管理人员。按照一个名叫《公司主管責任律例》 (Responsible Corporate Officer Doctrine)的医疗保健法案一款不同寻常的条文,他们均承认自己犯有一项轻罪。他们承认对公司从事未经授权的临床试验,以及参与药品核准标示外营销(off-label marketing,即推广产品应用于未经授权的领域)等罪行负责,但并不承认自己参与了犯罪。当时,没有哪位高管因为这项指控被判入狱(4位高管的律师拒绝让其当事人接受本文作者的采访,也不愿就这起案件的事实发表评论)。

    药品核准标示外营销是一种非常普遍的现象,以至于在一些药品和医疗器械制造商看来,这种行为与轻微超速行驶没什么两样。过去10年间,默克(Merck)、辉瑞(Pfizer)、雅培(Abbott Labs)和葛兰素史克(GlaxoSmithKline)这样一些医药大鳄已经支付了数十亿美元的罚金,用来摆平它们因参与药品核准标示外营销所受到的指控。但此类案件依然持续发生,部分原因在于潜在的利润往往超过罚金。





    Most of all, this is a story about a company that repeatedly ignored evidence of potential lethal consequences. Interviews with more than 20 former employees and surgeons involved in the Norian project, hundreds of pages of court transcripts, and company documents submitted in the case reveal that Synthes not only disregarded multiple warnings that it was flouting the rules, but also brushed off scientists' cautions that the cement could cause fatal blood clots.

    The Department of Justice targeted four high-ranking executives, all of whom pleaded guilty to a misdemeanor under an unusual provision of health care law called the Responsible Corporate Officer Doctrine. They accepted responsibility for the company's crime of running unauthorized clinical trials and for engaging in off-label marketing, or promoting products for unapproved uses, without conceding that they were involved in the crime. At the time, no executive had ever gone to prison for such a charge. (Lawyers for the four executives declined to make their clients available for interviews or to comment on the facts of the case.)

    Off-label marketing is so common among drug and device makers that it's often dismissed as the equivalent of driving slightly over the speed limit. During the past decade, pharmaceutical behemoths such as Merck (MRK), Pfizer (PFE), Abbott Labs (ABT), and GlaxoSmithKline (GSK) have paid billions in fines to settle charges that they engaged in off-label drug promotion. Yet cases continue to happen, in part because the potential profits often exceed the fines.

    But this wasn't the typical off-label marketing case. Nor was it typical of trials for medical devices or drugs. Patients sometimes die during such clinical trials -- but only after being advised of the risks and then granting their consent. In hiding the unapproved status of the cement, prosecutors argued, Synthes denied patients the right to choose whether they wanted to be test subjects.

    For the Justice Department, the Synthes case posed an unprecedented opportunity. It could finally hold individual businessmen accountable for their actions. Mary Crawley, the assistant U.S. attorney who led the prosecution, urged the court to send the executives to jail for their "venal crime." The "callous disregard of patient safety," she argued, "warrants the highest sentence the law will allow."