A PBM Amicus Brief
The FTC has filed an antitrust and consumer-protection lawsuit against the three largest pharmacy-benefit managers, or PBMs, and affiliated businesses over their tactics for negotiating prices for drugs. I’m no fan of FTC Chair Lina Kahn, but healthcare policy makes for strange bedfellows. Bravo. It’s about time that the silent middlemen of healthcare are called to account over their, shall we say, muscular behavior when it comes to building stockholder value on the backs of the patients they profess to serve.
That being said, and in the spirit of professional courtesy, allow me to offer some pointed questions that counsel for the defense can ask potential jurors.
Q: Have your pharmacy co-pays gone up or down over the past few years?
If the answer is “up,” do not seat this citizen.
Q: Do you think that it’s a good idea that the three largest PBMs (who control more than 80% of the market) are owned by large insurance companies – who also own many of the nation’s largest chain pharmacies?
If the answer is “no,” do not seat this healthcare consumer
Q: Do you think it’s fair that PBMs negotiate robust discounts from drug companies and then pocket most of those discounts, using none of those savings to reduce patient out-of-pocket costs?
If the answer is, “no” (or, more likely “hell no”), use one of your peremptory challenges to keep this person out of the jury box.
Q: Do you agree that PBMs and their affiliated companies should have veto power over your physician when it comes to approving prescription drug coverage?
If the prospective juror begins to turn red in the face and issues a feral growl, decline to seat this person.
Q: Do you agree that PBMs should steer patients to medicines that generate the biggest profits for the PBM and its fraternal pharmacy and insurance brethren rather than the best care for the patient?
As the sovereign individual begins to leap out of the jury box, fists clenched and yelling multiple expletives, step aside and let the bailiff regain control of the situation. Then use another peremptory challenge.
Q: Do you think that pharmaceutical couponing programs, designed to facilitate patient access to innovative medicines for serious and life-threatening diseases, should instead be used to further enhance PBM profitability at the expense of physician preference and patient choice?
If uproarious laugher and foot stomping makes it difficult to hear the juror’s response, don’t bother trying to rephrase the question and repeat after me, “How about a recess, your honor.”
Other strategies include throwing yourself on the mercy of the court, invoking Marbury vs. Madsion and/or the Fugitive Slave Act, make shadow finger puppets of cute bunnies to distract the jury pool, quote from the voir dire scene of “My Cousin Vinny.”
In the words of HL Mencken, “The penalty for laughing in a courtroom is six months in jail; if it were not for this penalty, the jury would never hear the evidence.” All of this would be funny – if it weren’t so deadly serious.
My final words of advice to Big PBM: You’ve finally gotten caught with your hands in the healthcare cookie jar. Throw in the towel, cut the rhetoric, cut a deal, admit that you’re part of the problem – and get down to the business of becoming part of the solution.
Fat chance. See you in court.
Peter J. Pitts is President of the Center for Medicine in the Public Interest and a former Associate Commissioner at the FDA.
