The Culture of Technicalities
One continually troublesome issue in dissecting the pathology of commerce in medicine is what I call the "culture of technicalities". This is the mind set that comes to equate success, ethical behavior and legal justification with whether or not some tactical pretext or technicality can let the perpetrator justify or escape the consequences of something he knows or should know is wrong! If Merck wanted to sell Vioxx to the general public, then the ethical obligation was to disclose the potentially dangerous side effects of the drug in terms that the average television viewer could understand. It is not an adequate defense to argue, as their general counsel has been doing, that either such information was not "proven" scientifically or, in any case, should have been understood from the technical mumbo jumbo written on the pill bottle!.I hear often a sense of wonderment that lawyers are frequently either the source or the shield for clearly unethical, quasi-legal or even illegal, activity. Elected officials are overwhelmingly members of the legal profession. General counsels for corporations and universities are by definition lawyers. Spokesmen for dignitaries are often lawyers. What is it about the legal profession that lends comfort to actions and actors who violate the rules of ethical behavior?
Here is where I think the problem arises. Lawyers by training are taught to find reasons to exonerate their clients. That is, they are required by the ethics of their profession to uncover justifications for behavior that others, including the general public, do or might perceive as "wrong". Many or most legal conflicts involve disputes where there is some truth on each side, but the lawyers are obligated to only represent one side. Moreover, each lawyer's writ is to employ technicalities to build a one-sided case for his or her client. This is the premise of legal engagement that underlies our common law legal tradition. It ensures that the lawyer has no conflict of interest and will exhaust all legal means to represent and defend his client. It is the context which makes commerce viable and is the single most conspicuous deficit in economies and societies that are ruled by oligarchy [post-Soviet Russia], tribal or traditional alliances [most of the Middle East], corruption [much of Africa], or terror [North Korea].
However, there is a downside to this culture of technicalities. The culture carries over into other aspects of our society and economy where the legal imperative is not or should not be the governing method of behavior. Public corporations have an obligation to do what is commercially "honest", not just what is technically legal. It is therefore shocking to find the general counsel for Hewlett Packard defending the use of spying and subterfuge within the corporation, on the basis of legal technicalities. It is unacceptable for the general counsel of Merck to justify the sale of Vioxx to an unsuspecting public when the company's scientific officers and leadership KNEW that the drug had a high risk side effect profile. The same type of defense peppers the arguments offered by Arthur Anderson for its shameful abandonment of duty in the Enron scandal. And, this is just exactly the same mentality that induced Bill Clinton, lawyer, to argue about the meaning of the word "is", and Mark Foley, another lawyer, to justify sexual advances to teenage pages by his own alleged molestation as a child.
CEOS and Presidents of corporations have an obligation to look past the technical defenses offered by their lawyers. The duty comes with the job. The legal team works for the CEO, not the other way around. Any corporation, particularly one in the public markets, has a responsibility to do so. In the past five years, the pharmaceutical and medical device industry has lost sight of this objective. The physician community and the general public will remain suspicious and skeptical until there is evidence of a change in the approach by corporate management to the ethics and probity of corporate behavior. The shareholder community and the public at large expects a culture of doing the right thing, not a culture of technicalities once the right thing has been abandoned or ignored.
posted by Robert E. Sweeney, DA, MS @ 8:47 AM
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