The PPACA 's 'Physician Payment Sunshine Provisions'

Located in ' 6002 of the PPACA and formally titled “Transparency Reports and Reporting of Physician Ownership or Investment Interests,” the Physician Payment Sunshine provisions require pharmaceutical and medical device companies to publicly disclose the payments they make to physicians. Although a small number of manufacturers already report this information publicly, there has never been a widespread federal requirement to do so until the PPACA was enacted.

Public access to pharmaceutical companies' physician payment data could change the landscape of product liability litigation in many ways. Most troubling is the possibility that the heightened attention and access to this data could lead some courts to use physician compensation as a basis for carving out yet another exception to the learned intermediary doctrine. A federal district court has recently come close to doing so in Murthy v. Abbott Laboratories, No. 4:11-cv-105, 2012 WL 734149 (S.D. Tex. Mar. 6, 2012), reasoning that compensated physicians may not be capable of making unbiased medical treatment decisions. Id. at *9. Although several other courts have previously rejected this position, its acceptance by the Murthy court may provide greater traction for this position as visibility into physician payments increases.