Monday, April 25, 2011

Supremes to Hear Challenge to Vermont Law

We have not closely followed this story recently so an update/overview is provided by Natasha Singer of the New York Times:

Several states have now passed laws limiting the right of medical data brokers like IMS Health to collect patient-de-identified prescribing profiles for individual physicians and then sell these to drug companies, to allow their reps to do better-targeted marketing. Thanks to these data services the average drug rep walks into the physician's office knowing just how many prescriptions Doc wrote for that company's product, and how many for competing products. For many years the average doc had no idea that the reps had this info (which the reps were generally very cautious to conceal), but I think now it's more or less common knowledge.

The states passing such laws argued that even though patient names were not revealed, these data should be treated as confidential professional information, and that selling them to drug companies aided in pushing expensive, brand-name drugs that then broke the state's budget in Medicaid and other state medical programs.

A lower court upheld the relevant law in Vermont, but an appellate court overturned the law, and now the Supreme Court is set to hear arguments tomorrow (April 26).

The response from the opponents of the law is interesting. Companies like IMS Health trot out the usual version of "it's education, not marketing," about how knowing prescribers of specific drugs can aid the company in passing on critical new information, etc. Nothing new there. But what might be interesting is who has joined IMS in filing amicus briefs--along with the National Association of Chain Drugstores (who make bucks off selling these data to IMS, reportedly sometimes more than they make selling drugs), Bloomberg and the Associated Press, apparently seeing this as a freedom-of-speech issue.

Anyway, we'll know tomorrow how the arguments went, and court-watchers will predict how many votes each side will garner from the tenor of the questions asked from the bench. To my inexpert and non-legal mind, the outcome is a foregone conclusion. This court (at least the 5-member majority) seems completely committed to the idea that "commercial speech" is indeed speech and deserves just about as much protection as the sort of speech the framers had in mind when they wrote the Bill of Rights (which was certainly not commercial speech). I cannot imagine that the same court that threw out campaign finance reform, and stood up for a corporation's right to buy the White House and Congress, would not support a corporation's right to buy and sell whatever data they need to make a few bucks off selling more drugs, and the public health consequences be damned.

Singer's otherwise informative article left out one key player in this whole commercial transaction--the American Medical Association. The AMA makes money--some have estimated in the range of $44M annually--by selling the secret code that allows the data from drugstores and insurers to be translated into the names of individual physicians. Funny that the AMA did not submit an amicus brief alongside the drug stores and the Associated Press.

1 comment:

American Medical Association said...

The AMA’s role in sharing physician demographic data has real benefits for physicians. With the help of the AMA, physicians can exert control over pharmaceutical companies who want access to physician prescribing data.

Physicians can use the AMA’s Physician Data Restriction Program (PDRP) to designate their prescription data as off-limits to drug salespeople and register complaints against pharmaceutical companies that use the data inappropriately. The program is free and any physician can enroll in the service regardless of AMA membership.

The PDRP provides a balanced approach for addressing the diverse concerns surrounding the use of physician prescribing data. It gives the AMA the ability to intercede on behalf of physicians against unwanted use of prescribing data by pharmaceutical sales representatives, while preserving prescription data for public good purposes, such as medical research, quality improvement, drug diversion detection and drug recall notices.

The release of prescription data to pharmaceutical companies does not seem to be a significant issue for most physicians. A Gallup survey that found 84 percent of physicians either were not concerned about the release of individual prescribing data or felt that the ability to “opt-out” of the release of their data to pharmaceutical sales representatives would alleviate their concerns. The AMA’s PDRP accomplishes this "opt out" capability. A subsequent market research study indicated that 96 percent of physicians participating in the PDRP were either satisfied or very satisfied with the program.

Restricting access to prescribing data should be every physician's individual choice. Only the AMA can guarantee the nation’s physicians have that choice and control, while ensuring the data remains available for public good purposes. Without the AMA to protect physician interests, it’s likely that private companies would step-in and ignore the choice physicians deserve.

Cecil B. Wilson, M.D.
President, American Medical Association