April 25th, 2011
States vs. data collectors at the Supreme Court
When a doctor writes a prescription and the patient has a pharmacist fill it, the transaction generates information companies have increasingly sought out, compiled and sold to drug manufacturers.
What often happens next, say Vermont officials trying to block disclosure of prescription records, is that “doctors’ names and prescribing habits travel from pharmacy records to the laptop computers of pharmaceutical sales representatives.”
Those sales reps, Vermont Attorney General William Sorrell tells the Supreme Court in a case to be argued Tuesday, show up at doctors’ offices armed with a marketing strategy, samples and gifts, intended to persuade doctors to switch patients to new and expensive drugs.
That scenario, counters Randy Frankel, a vice president at IMS Health, challenging Vermont’s law restricting this data, is “an attempt to show a darker side to the process.” Frankel stresses that patients would suffer if pharmaceutical companies could not track and market to physicians whose patients most need new medications. Information in the hands of those sales reps, Frankel says, can get new drugs for Alzheimer’s and other diseases to the doctors who treat those diseases.
Vermont’s law, similar to measures in Maine and New Hampshire, prohibits pharmacies from selling prescription information for drug marketing without a physician’s consent. The U.S. Court of Appeals for the 2nd Circuit declared the law an unconstitutional restriction on commercial speech. (A separate U.S. appeals court upheld the similar New Hampshire law. )
The Supreme Court case pitting states against data collectors and the drug industry comes at a time of national concern about escalating medical costs.
Twenty-seven “friend of the court” briefs, some representing multiple organizations, have been filed in the closely watched case of Sorrell v. IMS Health. Here are the lead parties on each side:
Vermont officials say its measure was intended to protect the doctor-patient relationship and ensure patients are not unnecessarily steered to brand-name drugs over generics. They say there is no First Amendment right to information pharmacies collect under state and federal drug regulations.
The challengers, IMS Health and, separately, the Pharmaceutical Research and Manufacturers of America, counter that not only do private companies have a free speech right to use the information but that making it available enhances drugmakers’ ability to swiftly pass on medical breakthroughs to the doctors and patients who need them.
Vermont’s law traces back to 2006 when members of the Vermont Medical Society, attending a meeting in New Hampshire, heard from physicians there that pharmacies were selling records to pharmaceutical companies. Until then, says Paul Harrington, executive vice president of the Vermont society, “physicians were completely unaware that pharmaceutical companies had access to this information when they were coming to the physicians’ offices.” He said doctors had two concerns: that their private relationships with patients could be breached and that the information could be used to promote more expensive drugs, driving up the overall costs for all patients.
At the Vermont Medical Society’s urging, the state Legislature in 2007 passed the law prohibiting pharmacies from selling the records for drug-marketing purposes without the physician’s consent. The information includes the name of the physician, the patient’s age and sex, the type and strength of each drug and the date and locale of prescription. Though patients’ names are encrypted, pharmaceutical companies are able to track the types of patients seen and prescribing patterns.