Free Speech vs. Medical Privacy Hits The Supreme Court

from the seems-like-a-stretch dept

I'm a big First Amendment advocate, but there are certainly times when people claim First Amendment rights that don't make much sense. Take, for example, the case that the Supreme Court recently decided to hear, Sorrell v. IMS Health, in which pharmaceutical companies are claiming a First Amendment right to use data from pharmacies to market to doctors.

The details involve a Vermont law that forbids data-mining companies and pharmaceutical firms from buying up prescription data, compiled by various pharmacies as required by law, to then go and market certain drugs directly to doctors. As you probably know, pharmaceutical firms spend billions every year trying to convince various doctors to prescribe their brand name drug, over the much cheaper generic equivalents (this "marketing" often involves ethically questionable practices). Thus, the data of what's being prescribed is really useful. The Vermont law said that this data couldn't be sold to data mining firms or drug companies without the doctors' consent. The 2nd Circuit appeals court said the law violated the First Amendment. Similar laws from neighboring New Hampshire and Maine had been upheld as Constitutional in the 1st Circuit, which is probably why the Supreme Court agreed to hear this case now -- to settle the split between the lower courts.

In this case, it seems like the 1st Circuit rulings make more sense. The key issue isn't even really the First Amendment rights of the companies to make use of this data, but that the data is available at all. The reason the marketing firms and pharmaceutical companies have access to that data at all is because the government requires the pharmacies to collect such data. Thus, it seems reasonable for governments to also then restrict how that data is used and/or sold in the interest of medical safety. It's not as if the data is public, and it's only being collected at the behest of the government. So it seems like a stretch to claim that this data, which is only available due to a government requirement, can't then include other restrictions.


Reader Comments (rss)

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    Anonymous Coward, Jan 10th, 2011 @ 4:44pm

    "it's only being collected at the behest of the government"
    Regardless of why pharmacies stated collecting this data, there is absolutely no doubt that they would continue to collect it if government data requirements ended tomorrow.
    Excepting those few states where it is restricted, the sale of that data is now established an easy revenue stream for the retail pharmacy business.

     

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    Jay (profile), Jan 10th, 2011 @ 4:56pm

    Devil's Advocate

    But if the government is collecting this data...

    Should it be in the public domain at any time?

     

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      Karl (profile), Jan 10th, 2011 @ 5:33pm

      Re: Devil's Advocate

      But if the government is collecting this data...

      Should it be in the public domain at any time?


      I assume (but am not sure) that this is PDMP ("prescription drug monitoring program") data. It's used mainly to monitor substances which are addictive, but legal with a doctor's prescription (e.g. codeine, oxycontin). It usually includes everything (including patients' names), and is accessible only by law enforcement or other government agencies.

      But each state has different laws, and some allow the data to be used by private parties (so long as it is stripped of personally identifying information).

      At least I think that's what's going on. It's about as good a guess I could make from the LA Times article and a quick Google search.

       

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      Anonymous Coward, Jan 11th, 2011 @ 7:03am

      Re: Devil's Advocate

      The government is NOT collecting this data. The government requires pharmacies to have the infrastructure in place to report detailed information regarding physician prescribing with respect to controlled drugs such as narcotics.
      Since the infrastructure is in place to collect that information however, it is very simple for retail pharmacies to collect information about ALL prescriptions. This information is very valuable to the pharmaceutical industry to allow them to target their marketing strategies. As I stated previously, the government requirement is now immaterial since the retail pharmacies will continue to sell this information regardless (unless prohibited from doing so).

       

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    angal2 (profile), Jan 10th, 2011 @ 5:08pm

    I'm curious as to what sort of data is being collected, and if the collection of this data could in any way be a violation of HIPAA.

     

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      Anonymous Coward, Jan 10th, 2011 @ 5:15pm

      Re:

      Unless the data is of the "Patient X was prescribed medicine Y" variety, it probably doesn't fall under HIPAA regulations.

      I would expect the data to be aggregated in some form - "there were X prescriptions for this medicine during the following time period..."

       

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      hippaa sherriff, Jan 10th, 2011 @ 8:53pm

      Not all medical providers are required to be HIPAA compliant.

       

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      Anonymous Coward, Jan 11th, 2011 @ 6:55am

      Re:

      The data being collected consists of detailed quantitative information about which physician writes which prescription for which drugs.
      The pharmaceutical companies are therefore able to have their sales reps come into the physician's office and literally say "I know you prefer to write prescriptions for brand X. Can I have 2 minutes of your time to tell you why I think my brand Y is better than X."/
      They may even say things like, "I know I'm not going to convince you to write my drug all the time, but can you at least give me 2-3 prescriptions per month, especially in those special circumstances where my drug has been shown to be superior to your favorite"

      There is no patient specific information being collected, and therefore this is not a HIPAA issue.

       

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    bob, Jan 10th, 2011 @ 5:18pm

    Wht is the data collected in the first place.

     

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    bob, Jan 10th, 2011 @ 5:23pm

    Wht is the data collected in the first place.

    This data collection is done with taxpayer monies, Medicare/Medicaid/Tricare, so that data should be open and free to use for anyone.
    As to the rest, Private insurances, that data should not be give out.

     

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      Anonymous Coward, Jan 10th, 2011 @ 10:41pm

      Re: Wht is the data collected in the first place.

      No, personally identifying information should not be available to anyone, regardless of whether it is a government program or not. I did not give up my privacy rights just because I'm poor.

       

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    TechnoMage (profile), Jan 10th, 2011 @ 5:37pm

    I'm surprised

    I somehow think that the DRUG MAKER... knows how many pills each pharmacy(or group of them) buys and sells... since they can only get them from the maker in the first place... so this data isn't about aggregate information. So if this data is more about "per pharmacy" or "per zip code" it is more about marketing, or if it is more like what I expect "John. Q. Public got 1 month of twice daily 10mg worth of _insert random drug name_" then this is more about invasion of medical privacy.

    Open government and Open...anything... needs to have limits, like private medical records... of... I don't know... _maybe_ just maybe what prescriptions someone is taking.

    Big Pharma knows how many pills they are making. Perhaps this should be a sign that Pharma shouldn't be allowed to market to doctors (or anyone else for that matter), there is no reason why pill commercials should be legal, they don't help the overall society, they just make us want more pills.

     

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      Karl (profile), Jan 11th, 2011 @ 1:07am

      Re: I'm surprised

      since they can only get them from the maker in the first place...

      Actually, that's not correct, and I suspect it's the entire point of collecting the data.

      With a ton of prescription drugs, there are either competing drugs (e.g. allergy medications), or generic equivalents. From a single drug-maker's perspective, either is bad for your business.

      So, you gather data, and in any areas where patients are buying generics or competitors' drugs, you target the local doctors and hospitals with whatever bribes are currently legal.

       

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        Anonymous Coward, Jan 11th, 2011 @ 1:10pm

        Re: Re: I'm surprised

        Karl, your suspicion is absolutely correct.
        Although I would point out that the "bribes" have largely dried up in the past 3-4 years as appropriate public scrutiny of the process has been brought to bear.
        Now there are no more free trips to the Bahamas, hardly any paid speaking engagements, almost no free "educational" lunches, no more free handbags at conventions, no pens, no more note pads, etc. etc.
        There has been a huge vacuuming of 'drug money' dirt from the healthcare system lately.

        Whether the money Pharma has saved will actually go into price reduction, or into new research is doubtful however.
        How about bigger CEO bonuses as a reward for saving money perhaps??

         

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    The Mighty Buzzard (profile), Jan 10th, 2011 @ 5:38pm

    I'm not sure how the law is worded but it seems to me that it would be a lot easier to use the commerce clause to forbid drug companies from buying such data than it would to forbid pharmacies from selling it to them.

     

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    Chris in Utah (profile), Jan 10th, 2011 @ 6:18pm

    Umm question...

    Anybody know why we allow government to collect information on drugs in the first place? Spare me on the war on drugs.

     

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    Not willing to register, Jan 10th, 2011 @ 6:54pm

    Corporations are NOT persons

    Corporations are made up of people, but not a person. The Constitution grants rights to individuals. I have a hard time believing that the founders intended for economically powerful groups to have the same rights as a poor individual. I think they mean for all folks to have the same rights, rich or not.

    There is a bit of a tortured history in the US over this issue, but I believe that some courts have ruled improperly over this issue. I also believe that corporations should NOT enjoy any of the rights enumerated in the Constitution. Those are reserved for individuals.

    Here is an article that explains the issue, unfortunately behind a registration wall:

    http://www.law.com/jsp/article.jsp?id=1050369429283

    The article quotes Justice Renquist as believing that the precedent is weak.

    So why should a corporation have First Amendment rights to begin with.

    Not willing to register

     

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    Anonymous Coward, Jan 10th, 2011 @ 7:30pm

    Obama also is trying to sell the people the Internet ID idea, the government is trying really hard to take away privacy and control from citizens.

     

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    Anonymous Coward, Jan 10th, 2011 @ 7:49pm

    The drug companies really don't care what drugs you are taking and don't receive that information from IMS. What they are interested in is what doctors are prescribing their drugs. One person taking their drug isn't that valuable, one doctor that tells 300 people a month to take a drug is.

     

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    Michael, Jan 11th, 2011 @ 6:31am

    Glad I'm Canadian

    Where I live NO ONE can access my medical information without my express consent. Employers have no access, police have no access, and unless I sign something called a "form 14" authorizing the release of my medical information (and the scope is very limited) they cannot legally read one single line.

     

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      Anonymous Coward, Jan 11th, 2011 @ 7:16am

      Re: Glad I'm Canadian

      I'm glad you brought this up.

      HIPAA was sold to the American public as a protection against disclosure of their private information.
      In fact, HIPAA was one of the greatest political sleight-of-hand maneuvers in a long time. Prior to HIPAA, there were situations in which patients and/or physicians were able to deny medical information to their employers or their insurers on the basis of privacy. HIPAA guaranteed that by law, that employers who offer insurance benefits, and insurers always have access to medical information.
      It is now a very expensive mistake for a health-care provider to inadvertently allow a patient's information to be seen by an uninterested 3rd party, whereas the very people who patients didn't want to see their information have an unequivocal right to it.

       

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    Paul Keating, Jan 11th, 2011 @ 7:48am

    commercial vs non-commercial Speach

    The Supremes long ago distinguished between commercial and non-commercial speech for the purposes of the 1st amendment. For restrictions on commercial speech, the government must only show a reasonable purpose. The case should be an easy toss for me and the only explanation for their having accepted it is to (hopefully) strengthen this distinction.

    This is fine for me and I for one wish it would be more strenuously applied to corporations in the area of political contributions and lobbying. The fact that you are a corporation makes your speech inherently commercial. Lobbying is inherently commercial. If it were not commercial, for profit corporations would not do it and if they did it would not be deductible as a business expense since it was not in furtherance of earning income (the IRS standard not mine).

    PRK

     

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    Anonymous Coward, Jan 11th, 2011 @ 2:26pm

    HIPAA is a complicated law and it does not cover everyone. If you put your medical information up on a non covered entity, they don't have to keep is confidential.

    Not all pharmacies give IMS information. There is no IMS data from Walmart. Of course, Walmart might sell the information themselves, but that is their choice. They are selling doctor prescribing information, not information on what drugs you take.

    Of course, one time a drug was recalled and the company was trying to figure out who actually received that drug. They looked at the IMS data and realized that the pharmacy patient ID looked like a phone number. Once they realized they had in their system actual identifying information of the person (or household) who took their drug, they deleted it from their systems as that was a violation of the law.

     

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