One can see why the pharmaceutical industry has gone to bat for health information companies that data mine physicians' prescribing history.
The data is valuable to pharmaceutical firms as they develop research and marketing plans. It also allows data miners to sell individual prescribing data to pharmaceutical firms that use it to arm their sales representatives.
Dubbed "detailing," this data provides the what, how and when an individual physician prescribes to her patients. It gives sales representatives valuable insights into how they should market their companies products to that doctor. Prescribing data allows companies to assess the impact of their samples, face-to-face meetings and other marketing activities on physicians.
The prescribing data also gives research firms like IMS Health and Verispan the ability to aggregate the data for reports such as one published on About.com Pharma, "The Most Prescribed Medications by Drug Class."
It is equally understandable why doctors, patient advocates and some state governments want to bring the practice to an end. Many physicians lament the fact that prescription data is protected for patients but not physicians.
Sources of Prescribing Data
Where does the prescribing data come from? Research firms combine prescription records they purchase from two sources: pharmacy sales records and the American Medical Association's Physician Master File of 600,000 U.S. doctors. While the AMA gives physicians the option to opt-in to a more restricted version of the prescribing data it sells to pharmaceutical firms, two-thirds of U.S. doctors don't belong to the AMA. They may not be aware that their records are being sold.
Efforts to halt the practice of selling prescribing history to data mining firms have had limited success. The State of Vermont attempted to give physicians a choice on releasing their data by passing the Prescription Confidentiality Law in 2007 which made data-mining an "opt-in" only system. IMS Health, Verispan and the Pharmaceutical PhRMA filed suit to block the law.
Vermont's attorney general won the case, Sorrell v. IMS Health, in federal court but lost on appeal.
In step with earlier U.S. Supreme Court rulings that extended the concept of freedom of speech to corporations, the high court in June 2011 overturned Vermont's law on a 6-3 vote. The Supreme Court was offended by language in the law that suggested the state intended to intervene in the 'marketplace of ideas' by threatening commercial free speech.
Sharon Anglin Treat, executive director of the National Legislative Association on Prescription Drug Prices, commented on the case. "The information Vermont tried to protect comes from private medical records," wrote Anglin. "It is being used to profile doctors to help drug companies in their marketing efforts. These records are not used in speech nor is the data in these records 'speech' as we have come to understand the term. The expansive decision by the U.S. Supreme Court, which extends new protections to commercial speech, should be a concern to anyone interested in keeping private information private."
A law passed in New Hampshire aimed at protecting the confidentiality of prescriber data from being used for drug marketing purposes, was overturned by a federal court, then upheld in the federal appeals court.
Where It Stands
In an article, "Higher First Amendment Hurdles for Public Health Regulation" published August 3, 2011, in the New England Journal of Medicine (NEJM), author Kevin Outterson describes two avenues states could pursue to protect prescribing history from data miners.
Outterson, co-director of the health law program at Boston University School of Law, suggests states add protections for prescriber-identifiable data through statutes that supplement federal privacy laws contained in the Health Insurance Portability and Accountability Act (HIPAA). In addition, "public and private health plans could refuse to sign contracts with pharmacies that sell prescriber-identifiable data," writes Outterson.
The National Physician Alliance says individual doctors can take steps to limit access to their data despite the Supreme Court ruling. It promotes a link to AMA's Prescribing Data Restriction Program and suggests physicians refuse to meet with "drug detailers" in their practices.
Considering the animosity the issue has caused between physicians and pharmas in an already challenging relationship environment, one has to wonder if pharmaceutical companies are on the right course with legal battles to protect data mining for sales staffs' marketing use.