Epstein vs. Relman: A Debate to Overlook

All right, as the Old Testament might have put it, first Richard A. Epstein, a law professor at University of Chicago, begat a book called Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press). That in turn begat a book review by former New England Journal of Medicine editor and frequent drug industry critic Arnold S. Relman (who also happens to be the husband of another NEJM former editor, Marcia Angell, author of The Truth About the Drug Companies). That begat a reply by Epstein, recently posted on pointoflaw.com.

I have not read Epstein's book, and based on HOOKED you can presume that I would tend to disagree with most of what he says. Epstein also wrote a paper published last winter in Perspectives in Biology and Medicine on conflict of interest, and I disagreed with most of what he said in that paper. All of which is beside the point here, as the question is rather what one might learn from this exchange of views.

Alas, it is disappointing. Relman beats up on Epstein for two cardinal sins. First, Epstein is a frequent consultant for the drug industry and is also an economic disciple of Milton Friedman. Second, Epstein is a lawyer writing about health care matters. Both sins show that he is an idiot and that he cannot possibly therefore be correct about anything further.

Epstein replies in kind. Since Relman is a physician without any additional training, he clearly knows nothing about law, or economics, or corporations, so he's incompetent to pass judgment on any of these issues. And since Relman rejects Friedman, he must be an unreconstructed New Dealer (proof: he was born in 1923!) and is therefore completely unreliable on anything related to either economics or government.

Just how this pissing contest is supposed to enlighten the rest of us is never explained by either party.

Because Epstein assumes that Relman is an ignoramus, he proceeds to teach Relman (and the weary reader) a course in Econ 101 as he sees it. Industry must make a profit or else it will have to shut down. Regulation has costs as well as (purported) benefits. Advertising lets consumers know that there is a product out there that they might wish to consume. Drug companies spend a lot on research. Gee, thanks for all of these insights.

If we are going to keep score, I give the win to Relman. He accuses Epstein of being an unabashed apologist for the industry, citing all the arguments that support the industry position, selectively remaining silent on any point that is not in the industry's favor. Epstein, in his Econ 101 course, basically acts in such a way as to verify Relman's description of him. As my printout of his rebuttal runs 16 pages, single spaced, I can give only one example. Epstein says that as a consumer who has no special training in drugs, he naturally goes out and hires a professional--a physician--to advise him on medical matters. But in the next paragraph, he says that if he had a serious or terminal illness, he would not wish to wait for the randomized controlled trials to be finished. For such a person, he says, "the fetish over clinical trials is a death sentence." He goes on to praise the Abigail Alliance for demanding a legal right to access to any experimental drug that the patient and physician think might be life-saving.

Now, what Epstein never explains, and seems completely unaware of, is the contradiction between saying that he would hire a doctor to give him the good advice he needs on drugs, and depriving that same doctor of what is today considered the best possible evidence of what drugs work and for whom (that is, the randomized clinical trial). How is the doctor that he prudently hires supposed to get the information on which to base his advice--tea leaves?

Fortunately this is not about keeping score. It is about figuring out these thorny policy issues, and we cannot do so if we have a cardboard caricature of free-market worship on one side, and a cardboard caricature of anti-free-market attack on the other.

Instead, read two different books. First read Medicine and the Market by Callahan and Wasunna. You will find a careful analysis of both the ethics and the facts related to markets as a means of organizing medical care. Among other things you will read that in most of the civilized world, it is simply a given that we need both private markets and government regulation, and that regulation helps markets run well by leveling the playing field. Only in the U.S. do we find the ideological fervor that insists that we worship at the altar of the "pure" free market and the government be damned.

Next, read Leonard Weber's Profits Before People? Weber (an esteemed colleague of mine, who taught at University of Detroit-Mercy) has taught and written about business ethics in health care. His book on the pharmaceutical industry could be viewed as an ethics consultation, as if the industry had noted its poor PR lately and asked Weber for his ethical advice. Weber tries to give them the advice that he thinks a good business ethicist would. And his advice is markedly different from the Milton Friedman school. In fact, Weber ends up saying just about the same bad things about the drug industry as do its more strident critics like Angell (and me for that matter). I'd like to hear Epstein explain how it is that Weber knows nothing about corporations and markets and the realities of business.

Relman AJ. To lose trust, every day. The New Republic, July 23, 2007: 36.

Epstein RA. Cambridge v. Chicago: an answer to0 Dr. Arnold Relman's New Republic review of Overdose. August 22, 2007; http://www.pointoflaw.com/columns/archives/004194.php

Callahan D. Wasunna AA. Medicine and the Market: Equity v. Choice. Baltimore: Johns Hopkins University Press, 2006.

Weber LJ. Profits Before People? Ethical Standards and the Marketing of Prescription Drugs. Bloomington, IN: University of Indiana Press, 2006.