In the third part of our Supreme Court prescription data-mining review (here’s Part 1 and Part 2) we look at the amicus briefs filed by groups of major physician organizations that represent hundreds of thousands of US physicians and a prominent medical journal.
Since it’s physicians whose prescribing data and identity are being sold to marketers, their interests stand at the heart of this case. Their statements to the Supreme Court demonstrate their powerful consensus that Vermont’s data-mining law protects against harmful intrusion into their clinical decision-making and the foundation of their profession: the confidentiality of the patient-physician relationship.
In a brief submitted by groups who represent more than 170,000 physicians nationally, the Vermont Medical Society and other physician groups told the Court that data mining with Prescriber Identifiable (PI) data violates medical privacy, one of the “central tenets” of the patient-physician relationship.
They argue that because the data in question belongs to a physician and patient it is private data, not public, and does not qualify as commercial speech. But they go on to build a case that even it were commercial speech, the Prescriber Confidentiality Law substantially advances state interest by closing gaps in medical privacy and protecting the patient-physician relationship from intrusion by sales people, who tend to promote newer, less-tested and more expensive brand name drugs.
The law also protects public health, they say, and lowers health care costs that come with the intrusion of salespeople into the medical decision-making—salespeople whose “goals are wholly unrelated to the best clinical treatment for any specific patient.” Studies and millions of marketing dollars have shown that drug company detailing influence the prescribing of newer less-tested, more expensive brand-name drugs when proven lower-cost alternatives exist.
In its decision, they say, the Second Circuit ignored the existing framework of state and federal privacy laws—Vermont’s Prescriber Confidentiality Law fills in those gaps that have allowed data-miners to buy and sell confidential prescriber data.
Other notable quotes:
–With unrestricted access to otherwise confidential data, pharmaceutical companies have been able to insert themselves as a third party in the physician-patient relationship in a way that would not be possible without access to PI data. The intrusion on this private relationship is harmful because it calls into question the treatment choices made by physicians and therefore injures the integrity of the physician-patient relationship.
–The law takes appropriately narrow steps to close an unintended loophole in the State’s regulatory system, thereby closing the back door through which data miners buy access to the private patient-physician relationship.
–When salespeople use the prescriptions a physician writes for his or her patients as a basis to “tailor” their pitches, they are actively seeking to exploit confidential treatment information to gain influence and press their advantage over the physician’s subsequent treatment decisions.
By using prescriber-identifiable data without consent of either patient or physician, these groups argue, drug companies and data miners essentially force the doctor and her patients to speak against their will. It detooths HIPAA and other laws that aim to protect private medical info from commercial exploitation, they say, and the Court should not apply advertising cases to what is essentially a medical privacy law. By matching detailed info about a patient’s conditions and treatment, the practice exploits patients and their medical history to publication and exploitation—exploitation the Vermont law seeks to prohibit.
This case isn’t fundamentally an issue of commercial speech; our view as medical publishers, physicians and medical students is that data miners have wrongfully converted private health information for commercial purposes without consent. Data miners should not have a First Amendment right to use or sell private health information.
The First Amendment does not protect data theft, and the drug companies buying this data without doctors’ consent would not suggest that the First Amendment protects the sale and use of their trade secrets without consent.
Furthermore, the amici write, Vermont’s action only empowers physicians to choose privacy—a choice all physicians should have.
“In a world where privacy is daily being eroded by technological advances,” they write, “Vermont may deem it prudent to slow the dissemination of certain data in order to avoid similar breaches. Federal law has specifically permitted just such a move.”
Other notable quotes:
–One key error in the Court of Appeals below was the failure to appreciate this difference between unauthorized access and subsequent publication. Publishers certainly have First Amendment rights, but not if the data was taken without consent, violating privacy, confidentiality, or intellectual property laws.
–Leave these complex matters of science and health policy in the hands of those best suited to make the decision – the prescribing physicians who are able to discuss these issues with their patients. Let the individual physician decide whether data mining is detrimental or helpful. The First Amendment does not require unconsented disclosure of prescriber-identifiable medical records.
–Kate Petersen, PostScript blogger