Medical Ghostwriting is a Fraud on the Court by Dr Dach
Posted Aug 08 2011 8:30am
Deemed "A Fraud on the Court"
by Dr Dach
Stern and Lemmens, two Toronto Law Professors, have joined forces in a scathing publication denouncing medical ghostwriting in the August 2 PLOS journal.(1)
The two law professors cited a 1944 Supreme Court case dealing with ghost writing, Hazel-Atlas Glass v. Hartford-Empire Co. (1944).
In this patent dispute case, the Supreme Court was fooled by a ghost written trade article presented in defense of the patent. A few years later, when Anti-Trust litigation revealed that the article had been "ghost written", the Court overturned the patent decision, and ruled that ghost writing in the trade literature amounted to a "fraud on the court", and the lawyers who had used the "ghost written" article were disbarred from practice.(2) This same concept applies to the pharmaceutical industry.
Above left image: Ghost Image on cover of old comic book courtesy of wikimedia commons.
Current examples of ghost writing by the drug industry planted into the medical literature include drugs such as:
(rofecoxib) a heavily promoted anti-inflammatory NSAID drug, later found to cause heart attacks.(3)
2) Prempro (combined estrogen/progestin), a synthetic hormone combination drug heavily promoted for years as hormone replacement for women. This was found to cause cancer and heart disease in the WHI (Women's Health Initiative Study).(4)
(paroxetine), an SSRI antidepressant found to be no better than placebo for most patients in treatment for depression, and also found to cause suicidal impulses (5).
"Ghostwriting of medical journal articles raises serious ethical and legal concerns, bearing on the integrity of medical research and scientific evidence used in legal disputes. Medical journals, academic institutions, and professional disciplinary bodies have thus far failed to enforce effective sanctions. The practice of ghostwriting could be deterred more effectively through the imposition of legal liability on the “guest authors” who lend their names to ghostwritten articles.
We argue that a guest author's claim for credit of an article written by someone else constitutes legal fraud, and may give rise to claims that could be pursued in a class action based on the Racketeer Influenced and Corrupt Organizations Act (RICO).
The same fraud could support claims of “fraud on the court” against a pharmaceutical company that has used ghostwritten articles in litigation. This claim also appropriately reflects the negative impact of ghostwriting on the legal system.
Guest-Authored Articles as “Fraud on the Court”
As to the pharmaceutical companies, we propose another approach, also grounded in fraud. Just as the integrity of medical research is a key factor in recognizing false authorship warranties as fraud, the courts' concern about the integrity of their proceedings is key to the doctrine of “fraud on the court.” Hazel-Atlas Glass v. Hartford-Empire Co. (1944), which seems to be the only ghostwriting case decided by the US Supreme Court . The facts are worth reviewing, because their significance is easily misunderstood—and to the best of our knowledge, the case has not been cited by any commentators on medical ghostwriting. In 1926, Hartford tried to patent a method of molding glass. Faced with skepticism from the Patent Office, Hartford's employees wrote an article lauding their method as an important advance, and then found an author for it in William Clarke, president of the Flint Glass Workers' Union. After publishing the article in a trade journal, Hartford cited it in their patent application, and the patent was granted. In 1928, Hartford sued Hazel, a competing glass manufacturer, for infringing the patent, but lost at trial. On appeal, Hartford leaned heavily on the spurious article. Hazel doubted its legitimacy, and interviewed Clarke, but he refused to acknowledge the truth. The court of appeals ruled for Hartford, quoting from the article as evidence of the patent's novelty and utility. The truth came to light 9 years later, when Hartford disclosed its files during an antitrust action. In 1944, the Supreme Court vacated the prior judgment, sanctioning Hartford's use of the article as a fraud on the court. The Court also nullified Hartford's patent, and the Hartford lawyers who had used the spurious article were disbarred from practice before the Patent Office ."
(2) Hatch v. Ooms, 69 F. Supp. 788 (D.D.C.1947), rev'd sub nom. Dorsey v.
Kingsland, 173 F.2d 405 (D.C. Cir. 1949), rev'd, 338 U.S. 318 (1949).
9) Medical ghostwriters should be sued, lawyers argue Toronto Home News. CTV News.ca Staff Tuesday Aug. 2, 2011 Academics who lend their names to medical and scientific articles that they didn't actually write are doing little more than prostituting themselves, according to two law professors at the University of Toronto.
11) Guest authorship, a form of ghost writing, constitutes legal fraud
"Guest authorship is a disturbing violation of academic integrity standards, which form the basis of scientific reliability" state two law experts in a robust attack on this unethical practice in a policy article in this week's PLoS Medicine—a practice which the authors also argue constitutes legal fraud.
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