Supreme Court to Docs – You Have No Privacy

The Supreme Court has sided with Big Pharma in their challenge to the Vermont Law limiting the pharmaceutical Industry’s access to physician prescribing information.

The nation’s high court handed down a verdict Thursday in the Sorrell v. IMS Health case, striking down by a 6-3 vote a 2007 Vermont law that that bans the practice of data mining — the sale and use of prescriber-identifiable information for marketing or promoting a drug, including drug detailing — unless a physician specifically gives his or her permission to use the information.

Apparently, Big Pharma’s right to “free speech” trumps my right to privacy. How getting access to my prescribing information has anything to do with free speech is beyond me.  In the twisted logic of the pro-business, anti-citizen Supreme Court –

Speech in aid of pharmaceutical marketing… is a form of expression protected by the Free Speech Clause of the First Amendment.

The Vermont Law Did Not Go Far Enough

By limiting its restrictions on data sharing to Pharma marketing, Vermont set itself up for the SOCTUS decision by making it appear that they were unfairly singling out marketing uses from other uses of prescribing data.  In my opinion, I don’t think anyone should have my prescribing data without my permission.

The AMA’s Role in Releasing  Physician Prescribing Information

The Vermont Law would not have been necessary were the AMA not selling physician information (the so called AMA Physician Masterfile) to the data mining companies, who then merge the files with pharmacy data and sell it to Big Pharma so they can use it to track physician prescribing patterns and target their marketing messages. Lucky docs don’t even have to be an AMA member for them to sell their data.

Now, the AMA is coming in like the White Knight, supporting physicians’ right to restrict access to their data –

While the AMA supports the appropriate disclosure of prescriber data, the AMA firmly believes that every physician has the unequivocal right to decide whether his or her individual prescribing data is shielded from pharmaceutical detailers. To help physicians exercise that right, the AMA created the Physician Data Restriction Program (PDRP), which enables physicians to “opt out” of such disclosure quickly and easily, while still allowing their data to be available for academic and governmental research.

“The PDRP is available to all U.S. physicians – both AMA members and nonmembers. Since its launch in 2006, nearly 28,000 physicians have used the PDRP to restrict their data….Interested physicians can register online or by calling (800) 621-8335.

Please. They’re the ones selling our data in the first place.

Looks like the wrong lawsuit was filed in the first place. It’s docs who need to be suing the AMA.

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Additional Reading

Medblogger Response to the Ruling

Dr Wes “When Speech Trumps Privacy

7 Responses to Supreme Court to Docs – You Have No Privacy

  1. You want your privacy – I can see that. Comapnies want to know where their product is being sold – I get that too. Especially for BTC and Rx drugs.

    What is your perspective of pharma companies knowing where their product is going if for reasons other than marketing? I can argue that if the pharma company is going to be held liable for the safety of a drug by the community, the FDA, the physicians, etc, then shouldn’t they have transparency into who is using the product so they can monitor? For this reason there should be data streams that reveal how a patient gets a hold of a product and by whom. Why should the pharma company not be able to see this data and defend itself should the doc and/or the patient participate in off-label indication prescribing? (for example)

    The marketing piece is less required, and I don’t see the logic in the free speech argument either. It just helps them to target their message more clearly to translate to sales.

    By the way, IMS (the company that gathers and sells the market data) is a private company worth nearly $6 billion. Since they are private they don’t publish revenues, but they likely are selling about $1.5 Billion/year in order to have that market cap. Not bad for a data gathering company…That’s why big pharma did not argue the case, IMS did.

    • The pharmacies are already holding prescribing info, and my EMR tracks everything I write. When drug warnings come out, I get messages via my emr. Pharma does not need the info.

      If pharma wants to defend themselves they can subpoena records, like anyone else who wants info that does not belong to them.

      We all know what this is about – $$$. You called it.

  2. this data will not reveal if a prescription is on or off-label, or why it was prescribed for a particular patient [which would implicate patient privacy] — it only shows who is prescribing what. if a pharm company is sued, they can request discovery or subpoena doctor records if they feel that is necessary to the defense.

    sadly, this is another baldly pro-business-profit decision from SCOTUS.

  3. I’ll watch for this when I get those “sign this petition” emails. If anyone wants me to protest against this latest horror from SCOTUS, I’ll do it!

  4. There are at least a dozen private companies who sell physician demographic information that could fill the void if the AMA cut its ties with the data-mining companies. There’s no room in the business plans of these private companies to give physicians a voice in how their industry operates. The reality is the AMA’s role assures physicians will always have a degree of control over pharmaceutical companies who want access to prescribing data.

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