The Supreme Court heard oral arguments yesterday in the prescription data-mining case IMS v. Sorrell, and there’s a whole passel of news stories:
Reports indicate the judges were skeptical of Vermont’s position that preventing companies from buying doctors records from pharmacies – importantly, without the doctors’ consent—was not, in fact, limiting commercial speech.
Two important points that sort of rush by in the Post story. The Post quotes IMS attorney Thomas Goldstein: “If the message is accurate . . . the drug companies can go make their pitch,” Goldstein said. “Vermont can come along and make the opposite pitch. Terrific. So can insurance companies.”
But the accuracy of the message is squarely in question, and at the center of Vermont’s concern. The message is accurate…ly geared to sell drugs. Like all salespeople, those being given doctors’ prescribing data are not obligated to provide complete, accurate pictures about a given therapy class. They are obligated by their job description to sell more of their drug than the next guy.
In some cases “accurate” has been interpreted so broadly that companies promote their drug for uses beyond their approved indication. While physicians should be free to make those prescribing choices within the individual patient-physician relationships, sales-fueled marketing of such uses “off-label” can be dangerous to patients and is therefore illegal. And as we discussed last week, pharmaceutical companies have gotten in big multi-billion dollar trouble with that one. The flagrant scope of this shrugging off of the law and patient safety in favor of profit-motive is one thing Community Catalyst asked the Court to consider as it weighed Vermont’s case for restricting sale of prescriber-identifiable info.
The Post article also says: “IMS Health and other companies that collect data from pharmacies say it helps law enforcement and public health officials by locating areas where certain illnesses are concentrated and to identify doctors who overprescribe certain drugs, such as narcotics.”
This elides some really important matters at the heart of the case.
Not being in the room, it’s hard to know what exactly was said, but let’s be clear: Drug companies are not spending millions of dollars on this data each year to turn around and share epidemiologic trends with public health officials. One, because spotting disease trends does not require prescriber-identifiable data—knowing the incidence diabetes type II in Stowe, VT is unrelated to knowing which doctors in Stowe prescribe how much tolazamide vs. rosiglitazone. And that’s an important difference, because it’s that second kind of info IMS is making its money selling. Moreover, Vermont’s law specifically exempts legitimate research and public health uses of the data from its law.
Secondly, neither the pharmaceutical industry nor health-data companies like IMS are in business to out overprescribers. Not their job, and not in their interest. Claiming otherwise before the Court should be a non-starter.
Kate Petersen, PostScript blogger