Re: Medical Ghostwriting

January 25, 2006

Re: Medical Ghostwriting.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

One turns with relief, even pleasure, to something other than the damned Alito nomination. This is so even though the new subject is itself a distressing one.

The new subject is, in fact, a very old one, at least for this blog. Those who have read this blog for a year and a half or so will know, but those who have read it only since Counterpunch began printing excerpts from it will not know, that in the fall and winter of 2004 and the first half of 2005 much was written here about the practice of ghostwriting. That is the practice, indulged in American society by politicians, corporate executives, entertainment celebrities, judges, and a host of others, of having someone else write the speeches, books and articles for which the "ghostee" takes credit -- for which the politicians, executives, judges, etc. take credit.

An extensive set of postings, plus posted email responses, was set off in the autumn of 2004 by the realization that two famous Harvard professors, Laurence Tribe and Charles Ogletree -- law professors for God’s sake! -- had indulged in what was considered here to be the fraudulent act of claiming a ghostwriter’s work as one’s own, and using this claim to gain credit and to become or remain famous, or more famous. This blog, and a now apparently dormant blog that was run anonymously by one or more persons who called themselves AuthorSkeptics (and who, one would speculate, were probably Harvard Law students), became what we might call telephone central -- to use an early 20th century term -- with regard to ghostwriting, particularly ghostwriting done for Harvard law professors. Lots of well known professors, a number of obviously highly competent non-academics, and the country’s leading federal appellate judge all chimed in, emailing pieces that were cogent, sometimes of significant length, and that were posted on this blogsite, on the AuthorSkeptics site, or both.

The discussions of when (if ever), where, and to what extent ghostwriting might be permissible, and when and where it might be simply fraudulent, were extensive, to say the least. As well, through the grapevine one heard a rumor that at least one Harvardian was deeply upset by the circumstances of his "outing" (which occurred elsewhere but apparently began because of an e-mail from him that was posted here).

One does not propose now to rehearse the many arguments about ghostwriting that were canvassed about a year ago. Those who are interested in discussions of the pros and cons relating to what this writer thinks to be the use at high levels of society of one technique of the gross dishonesty that now pervades American life, can consult the extensive discussions that went on here and on the AuthorSkeptics site from September 2004 to May 2005. Rather than canvass the prior arguments about the legitimacy or illegitimacy of ghostwriting, I wish here to bring up two follow-on points, one merely of importance, the other literally involving life and death. The first should have been but was not entirely clear to me a year ago -- you can rightly chalk that up to thickheadedness. The other has recently been brought to my attention by the public prints, although I was not wholly unaware of it previously.

In the prior discussions, this writer opined that Messrs. Ogletree and Tribe should be punished in some very serious way for what they did, but recognized that for a number of reasons, some of them academically selfish, such punishment was unlikely to be imposed by Harvard’s President, Lawrence Summers, or by the Dean of the Law School, Elena Kagan. This, as far as I know, has proven true. There seems to have been either no punishment or only a very light non-public one for these acts of academic fraud.

Tribe was outed because of a 1985 book he had put his name to that dealt with the confirmation of Supreme Court Justices. He was not outed because of anything he did or did not do on his famous treatise on Constitutional Law (called American Constitutional Law), which had gone through two editions with a third one in preparation for some time now. During the latter stages of the internet discussion on ghostwriting, however, Tribe announced that he would not complete the third edition. He sent a short letter to Justice Breyer explaining his reasons briefly, and a very long "open letter" to others explaining his reasons at length. It may not be possible to really do justice to his asserted reasons by putting his lengthy professorial type of language into a short form. But if one had to try, it might read something like this: "One can have no idea of what will happen next in constitutional law or where the field is going. It is in flux, or at a crossroads, so this is no time to be writing a major treatise."

Now, I have spoken with leading constitutional lawyers who think Tribe’s statement of reasons was intellectually farcical. (This writer himself thought that, if con law is in flux, that would be a reason to write a treatise that attempts to influence its path.) But more importantly by far for this posting is that there were some people who thought Tribe’s stated reasons were not the real reasons. Such people thought that the real reason Tribe was discontinuing work on the third edition was that his treatise had been ghostwritten, albeit under his supervision, from the get-go, and after the terrific brouhaha of 2004-2005 he knew he could not get away with this anymore. AuthorSkeptics were plainly of that view; they sent me a copy of an email they had previously sent to some other professor (I don’t know who) elaborating this. Here are the relevant paragraphs of the email:

We think a more logical explanation in [sic] that Tribe’s decision not to
continue with the treatise reflects that much of the second and third editions
of Tribe’s treatise was ghostwritten for Tribe by various students and former
students. We’ve received reports of this since the fall, from people directly or
indirectly familiar with his practices, who claim Tribe runs in effect a
ghostwriting mill, delegating his scholarly work to free up lots of time to do
lucrative consulting work. We emphasize we do not "know" this, in the sense we
cannot prove it, though similar to Dean Velvel, eventually we will probably put
questions to people who could easily put this suggestion to rest if it were
untrue, which will likely establish this in people’s minds as likely true.

We think that with all the recent scrutiny of ghostwriting. . ., it is
too risky for Tribe to continue the practice of making undisclosed use of
ghostwriters (on our blog, Professor Powell of Duke has recently opined that
such a practice is simply wrong), and Tribe does not want to devote the time and
energy to doing the work himself, nor does he want to giving [sic] his
ghostwriters co-authorship credit. Perhaps this accounts for the defensive,
long-winded, tortured explanation in Tribe’s letter (the two letters explaining
why Tribe is not going to keep working on explicating the Constitution, at least
in treatise form, are collectively longer than the U.S. Constitution including
all its amendments).

I personally had never spoken at that time to anyone who was involved with Tribe, so was unable to opine on whether AuthorSkeptics might be right or wrong. But that was then, and this is now. Recently, I spoke with a professor who told me, fortuitously, that Tribe had asked him to work on American Constitutional Law when he was a student at Harvard Law School, and he knew several people who had done so. (Working for Tribe was, he said, as one would think, a plum job that would lead to recommendations for prestigious judicial clerkships, that would lead to other prestigious jobs, etc.) The people who had worked for Tribe, said this professor, had written large tracts of Tribe’s treatise. So it now seems possible to me that AuthorSkeptics may not have been off the mark.

Of great interest with regard to the question of punishment that was discussed during the 2004-2005 debate is the identity of the people who worked for Tribe. In the Preface to the Second Edition, published in 1987, Tribe listed and thanked 29 Harvard law "students who helped most notably with this edition." One of those listed and thanked was Elena Kagan of the class of 1987, who is the current Dean of the Harvard Law School. Then, after thanking the 29 students, Tribe said that he "want[ed] to single out for special appreciation, for work especially well done, and for help above and beyond the call of duty, a few [ten] of those named above," including "Elena Kagan (for work on Chapter 13)." (He also singled out a student who is now a well known television commentator and writer, "Jeffrey Toobin (for work on Chapter 5 and especially extensive work on Chapter 12).")

So . . . . it begins to look, does it not, as if the Dean of Harvard Law School, one of the two persons (President Summers being the other) who should have but apparently did not punish Tribe, was one of the participants in what some people think was "in effect a ghostwriting mill" that Tribe ran to prepare the treatise which is one of the main components of his fame. If all this is so, there was no way in hell, was there, that Kagan could have punished him for having had one or more persons ghostwrite (very large?) portions of his book on confirmation of Justices? (It is claimed by some that the book was in effect written for him by a student, and now Democrat politician, named Ron Klain.) I mean, if all this stuff about Tribe running a ghostwriting mill is true, then Kagan was a participant in the ghostwriting machine by which Tribe wrote his treatise (and for all I know may have gotten various jobs partly because of his recommendation(s)). How could a participant in his ghostwriting mill punish him for it?

Oh yes, one could say that Kagan was in a different position than Tribe back in the ’80s. She was a student. She was no doubt eager to win Tribe’s plaudits and approval and get recognition and recommendations from him and to get prominently published thanks from him in his book. One might almost sympathize with her if one didn’t suspect for various reasons that she likely is one of those east coast types, one of those Harvard/Yale types, like the Clintons, for whom she worked, who would run over their grandmothers to get ahead. Regardless, however, how could Kagan punish Tribe for conduct she had participated in? ’Tain’t likely, Jeb. (Is it conceivable, however, that seeing the brouhaha that had now arisen over ghostwriting, and knowing that speculation and investigation about ghostwriting would be rife if Tribe’s third edition came out, Kagan privately punished him by threatening to or actually cutting off research monies he may have been using to have portions of the third edition ghostwritten by students, and that she thereby forced the abandonment of the new edition?)

And then there’s the question of Summers, a guy who, as was discussed extensively here and elsewhere in 2004 and early 2005, has time and again proven his unfitness to be President of Harvard. How could he punish law professors such as Tribe or Ogletree when it turns out that his own Dean of the Law School, whom he appointed, was involved in Tribe’s ghostwriting mill if there indeed was such a mill. One might say: well, maybe Summers didn’t know of Kagan’s participation. Perhaps. But what are the odds that nobody -- absolutely nobody -- brought it to his attention if at any point he contemplated visiting a serious punishment on Tribe or Ogletree?
Nope, if you ask me, the lack of punishment was foreordained. It was foreordained for several reasons, most of which were discussed here in 2004 and 2005. But one of the reasons not discussed here previously is that Kagan was part of the ghostwriting mill if there was such a mill, as a number of people apparently say there was.

By the way, if one wants to further plumb the question of whether there was a ghostwriting mill, how about asking Jeffrey Toobin? He is, after all, a prominent member of the media, and therefore ought to be devoted to bringing information to the public. Still, why do I think that all that a person making inquiry is likely to hear from Toobin’s lips is a big fat no comment, or a statement that confidentiality prevents him from discussing what he did for Professor Tribe? (It likely is symptomatic, isn’t it, that Toobin, as far as I know, did not weigh in on the ghostwriting question in 2004-2005, when the question was all the rage?)

So much, then, for the Harvard fiasco. Now let’s turn to something of even greater consequence -- of health, life and death consequence. This is the ghostwriting of medical articles that appear in leading medical journals like JAMA -- the Journal of the American Medical Association -- or Britain’s Lancet or a host of other journals. Doctors rely on the articles in these journals to make decisions about medicines and treatment. If the articles are fraudulent or wrong or incomplete, medical decisions made about your health can prove wrong or dangerous. As The Wall Street Journal said in a December 13th article about medical ghostwriting:

It’s an example of an open secret in medicine: Many of the articles that
appear in scientific journals under the bylines of prominent academics are
actually written by ghostwriters in the pay of drug companies. These seemingly
objective articles, which doctors around the world use to guide their care of
patients, are often part of a marketing campaign by companies to promote a
product or play up the condition it treats.

Now questions about the practice are mounting as medical journals face
unprecedented scrutiny of their role as gatekeeper for scientific information.
Last week, the New England Journal of Medicine admitted that a 2000 article it
published highlighting the advantages of Merck & Co.’s Vioxx painkiller
omitted information about heart attacks among patients taking the drug. The
journal has said the deletions were made by someone working from a Merck
computer. Merck says the heart attacks happened afer the study’s cutoff date and
it did nothing wrong.

It is a dreadful fact that the picture of the medical profession that we are getting from leading books and articles today is of a profession that is heavily on the take from major drug companies that are pushing their products. To give one example among many, leading doctors and researchers are paid large sums to go around the country making speeches about companies’ products before medical meetings. The speeches made by these highly paid medical shills, naturally, laud the products of the drug companies that hired them. As Gomer Pyle used to say, "Suprise, suprise, suprise." Another major example of doctors being on the take, is that the drug companies pay doctors and researchers significant sums to write laudatory articles that appear in major medical journals. And -- the focus here - - drug companies, their marketing departments, their hired consultants and communications companies, their Washington lobbyists, are paying doctors and researchers to put their names as authors to articles that appear in medical journals but that the purported authors did not write, and that were written instead by ghostwriters hired by the companies or their various hirelings and that are slanted in favor of the companies’ marketing-driven desires for profit. Important information contrary to the companies’ views -- information that could create doubts about or even discredit the product - - is left out (just as important information was left out of the 2000 article on Vioxx). Favorable information is cherry picked (the same process the Bush Administration used to get us into the war in Iraq, incidentally). The emphasis in a ghostwritten article can be very different from what it would have been had the listed author written it himself or herself. Moreover, sometimes the listed author is not even the researcher or one of them, but is instead just some shill who is putting his or her name to the article for money -- sometimes, indeed, articles are drafted by company shills and then listed in company records with authors "TBD" -- to be determined. (Can you believe it?) Companies influence the shills to write an article in a certain way, or to structure it in a certain way.

As is always the case with anything that is dishonest, fraudulent, or immoral, those who engage in this process come up with reasons, e.g., researchers don’t have time to write, or they write poorly, or the true researchers look over and approve the manuscripts. No matter. The entire business is a species of fraud, fraud that puts lives and health at risk.

It is hilarious that an association called the American Medical Writers Association is pressing for medical ghostwriters to receive credit for their work. Under the banner of disclosure, it seems, the AMWA wants ghostwriters to receive recognition for their participation in the fraud. Or perhaps the idea is that doctors who read the ghostwritten articles will be more skeptical about them if they know the articles are ghostwritten. Still, the readers won’t know what was left out, how emphases may have been changed, what was cherry picked at the behest of the drug companies or their hirelings. I think that all one really needs to say about this is that some of the ghostwriters themselves do not want full disclosure of their roles because they fear -- they know perfectly well? -- that ghostwritten articles will not be accepted for publication by journals that have integrity. This was put very nicely in the Wall Street Journal by a guy who heads the medical ghostwriters of one consulting group:

But some medical writers say they fear articles with full disclosure are likely
to get bounced. Editors "say they want disclosure, but if you do it, they
scream, ‘ghostwriter’!" says Art Gertel, who oversees medical writing at
Beardsworth Consulting Group in Flemington, N.J. "Despite the cries for
transparency, the journal editors still feel that there’s an element of
corruption if a medical writer is paid by a drug company."

Being one who despises the dishonesty and fraud of ghostwriting (I -- like Richard Posner too -- write my own stuff, as bad as it may be), I, like Jonathan Swift, would like to make a modest proposal. The proposal is designed to put an end to the medical ghostwriting, which involves matters of health, life and death. The proposal is that anyone who participates in any way in the process of allowing or creating medical ghostwriting -- drug companies, their executives, consultants and communication groups, ghostwriters, Washington lobbyists, the putative but false authors -- be subject to serious criminal penalties if a ghostwritten piece or pieces contribute to medical mistakes that harm people. If, for example, ghostwritten pieces contribute to deaths, then any and all of these people could be subject to imprisonment for many years, even for life.

I know, I know. There are lots of objections to this modest proposal, ranging from what would be the exact definition of a ghostwritten piece, to you don’t want to jail doctors and researchers who can contribute heavily to future research, to this might be thought inconsistent with our capitalist system. The big objection, however, the real objection, however, is that criminal punishment for these people is a new and novel idea that nobody has gotten used to yet. That has always been the real, underlying objection to new ideas, from abolition to civil rights. But if you really want to stop the dishonesty that pervades this society, sometimes with consequences disastrous to life, there is really no substitute for criminally punishing people, ranging from the top officials of the federal government to the medical ghostwriters. The fear of serious criminal punishment for misconduct will go a lot farther towards stopping it than all the (easily avoided) regulation in the world.

Let me close with one other point on a different but related subject. To a considerable extent, the information in this posting was disclosed by The Wall Street Journal (as well as in some books), especially by a Journal article of December 13, 2005. The Journal’s news pages are, as said here before, first rate. They often contain major pieces, major exposes, about serious subjects, including exposes of wrongdoing in the capitalist system that the Journal’s editorial pages defend so stridently. This writer, like many other people, finds it remarkable that such constantly excellent news pages exist in the same newspaper that puts out absolute crap in its editorial pages. One concludes that The Wall Street Journal is the only newspaper in the world that has schizophrenia.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.