The May 26 New England Journal of Medicine includes an editorial on Prescriptions, Privacy, and the First Amendment. The free full-text article discusses a recent Supreme Court case about data mining in Vermont, specifically the practice of selling information about individual physician's prescribing practices to drug companies for targeted detail visits:
This is the way it works: Retail pharmacies retain information about all drug prescriptions that they fill, including the patient’s name, the identification of the prescriber, the name, dosage, and quantity of the prescribed drug, and the date the prescription was filled. This information is collected, along with the patient’s age, sex, and drug history, and sold, with the individual prescribing doctors identified but the patient’s names encrypted, to data-mining companies (IMS Health is one such company). The data-mining companies then further process the information by collating each physician’s prescribing history for each patient, and they sell it to pharmaceutical companies. The prescribing information of individual doctors can be linked to the Physician Masterfile of the American Medical Association (AMA), thereby enriching the data on prescribing physicians (the Masterfile, which is sold by the AMA, includes information on every physician’s education, licensure, certification, hospital privileges, and practice details). The companies’ marketing departments use the information to develop strategies to sell drugs to individual doctors, and the schemes are applied by pharmaceutical sales representatives (“detailers”) to make pitches to the doctors in their offices. These solicitations are not intended to communicate evidence-based information to doctors; they are intended to sell expensive drugs.
It is a very successful business. When drug detailers have the prescribing history of the physicians they are visiting, they sell more drugs. This is one of the principal reasons why the Pharmaceutical Research and Manufacturers of America (PhRMA), the trade organization of the pharmaceutical industry, joined the data miners as a party to the lawsuit. It is quite clear who profits from the sale of the prescribing information: retail pharmacies, data-mining companies, drug companies, and the AMA. In the end, the costs are passed along to patients, and physicians’ prescribing practices are manipulated by drug salespeople who know the details of their interactions with their patients.
Personally, I find this practice abhorrent. Until this lawsuit, I did not realize that my information could be sold in this manner. Being one of the more than 80% of physicians who has not joined the AMA, I was also unaware that I could opt out of the use of my prescribing data by salespeople, although I cannot prevent the sale of my data to drug companies via this mechanism. The opt-out site has been minimally effective (<3% of prescribing physicians), in part because so few belong to the AMA and because this service is not exactly front and center on their web site.
If you are a physician reading this post, you can opt out by clicking here.
Vermont tried to make the sale of data to the mining companies an opt-in requirement; only if you allowed it would your individual data be shared. The fact that data-mining companies and PhRMA have paid lawyers to take this all the way to the Supreme Court tells me something:
Those data are worth a lot of money.
So what is the legal argument here?
At issue in this important case is the conflict between the privacy of physician-identified drug- prescribing information and the First Amendment right of a business to communicate about its products (“commercial speech”). In contrast to public discourse, which is protected by the First Amendment as a fundamental part of the democratic process, protection of commercial speech under the First Amendment is a relatively recent development in the law. According to the Supreme Court, government regulation of commercial speech must directly promote a substantial governmental interest and must be no more extensive than necessary to meet that interest.
The law in question does not prevent drug companies from advertising the hell out of their products in any way. It will prevent drug companies from using individual physician prescribing habits to tailor a marketing campaign for an individual physician. An opt-in program will produce less data from which the mining companies and the AMA may profit. Given the role of the government in financing and regulating so much about healthcare in the US, the government has a compelling interest in speech that increases healthcare costs - as this sort of data-mining certainly must - or influences the health of the nation.
It will be interesting to see how the Supremes come down on this case. I fear the same group that gave corporations the same protections for political donations as individuals will not see the logic in Vermont's law. Be sure and read the NEJM article in full; the authors make the point in more detail and with greater eloquence and expertise than I can.
In the meantime, let's all opt out of the scheme via the AMA's little-known site. It's the least we physicians can do.