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Legal Analysis of Undue Influence

A classic English case in the undue-influence literature analyzed the concept as follows: The test for undue influence is the presence of agency and whether or not the individual will had been overpowered—the inequity of the act consists in compelling a person of ordinary firmness to do what he does not want to do.. .To be undue influence in the eye of the law there must be—to sum it up in a word—coercion. (Wingrove v Wingrove 1885: 82-83)

A more modern American source expands the analysis as follows:

Any action that subverts the will by solicitation, flattery, putting in fear or some other manner.. .kindness or attention is not enough...[Its effect must be] Psychological domination resulting in an inability to resist the will of another. (Estate of Auen 1994: 565)

Susceptibility: Physician Narcissism

Members of the medical profession (incidence unspecified) have been diagnosed with “entitlement syndrome,” a symptom associated with narcissistic personality disorder. Supposedly, the selective educational process, disciplined delayed gratification, initial commitment to service, and long years and hours of training eventually confer high status. Supposedly this makes it appear to some physicians in training that gift offers of pens, mugs, and nice dinners are deserved tribute, marks of appropriate respect shown by drug rep supplicants. But if so, it is argued, their syndrome makes them susceptible to gift-exchange bribery by the reps. The vain, affirmation-seeking physician, hungry to satisfy an acquired taste eagerly dispensed rep flattery, reciprocates by irrationally prescribing the costly products from the drug rep’s bag (rather than cheaper generics) (Brody 2007: 192).

This explanatory mechanism doesn’t make sense. The formerly committed, but now entitled, narcissistic physician, who accepts tribute from inferiors as her due, would not feel any obligation of reciprocity.

It will be objected that drug reps successfully use “key opinion leader” (KOL) designation as flattery to entice physicians to lead astray their colleagues at product promotion events. Physicians who attend such events are much more likely to prescribe and make formulary addition requests for the sponsor’s products than nonattendees. However, the physician samples in these studies (attendees vs. non-attendees) are self-selected. The marginal effect of the KOL on attendee motivation to prescribe and to make formulary addition requests must be confounded by selection bias. Besides, drug-talk attendees voluntarily take a weeknight or weekend night to hear what the KOL has to say and to visit with their colleagues. Their opportunity cost—time away from home/family—must be judged “worth it” all things considered. Prohibiting attendance at such gatherings is oppressive.

The standard of “firmness” for measuring physicians’ susceptibility to influence should be higher than for a person afflicted with narcissistic personality, higher than for “the man of ordinary firmness,” and, indeed, higher than for a “medical student of average firmness” or for other trainees such as residents and fellows.

We do not allow trainees to set the standard for measuring the adequacy of a licensed physician’s clinical decisions. How does their naivete qualify them to set the professionalism standard for physicians when they have yet to attain that status? Neuroscientists claim to have discovered that prefrontal lobe development, where brain functions for impulse control and judgment have been localized, is not complete until age 25 or thereabouts (Lebel and Beaulieu 2011). It is not obvious why medical students whose frontal lobe connections have only recently matured and who have little or no experience in dealing with commercial product information should set the standard for physician exposure to marketplace influence. Howsoever, the neuroscience of judgment may turn out to be that the COI entrepreneurs have not proved with data that physicians are so susceptible to having their wills overpowered and without having convinced their judgment that they must be protected for their own and their patients’ sake. This will be further discussed below.

 
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