May 17th, 2011

Should Drug Companies Get to See What Your Doctor Is Prescribing?


An e-mail has been making the rounds among some of my physician colleagues. “I am shocked that information about the prescriptions I write for my patients is being sold (along with my name!) to drug companies for marketing purposes,” begins the missive. “This is a violation of my privacy as a physician and an intrusion into the doctor-patient relationship!”

The note implores doctors to support laws that restrict the sale of physician-prescribing information to drug companies and to sign up with the American Medical Association (AMA) to have our prescription information blocked from sale for commercial purposes.

The trigger of this e-mail was a court case, Sorrell v. IMS Health, which was argued last month in front of the U.S. Supreme Court. The case challenges a Vermont law prohibiting the commercial sale of doctor-prescription records without the physician’s express approval. IMS Health, the company that brought the suit on the grounds that the law violates free commercial speech, is a data miner: it buys prescription data from pharmacies, removes the patients’ (but not the doctors’) names, then aggregates, sorts and sells the information to drug companies who use it to tailor their “detailing” marketing operations to specific doctors and locations. (See “Health Checkup: How to Live 100 Years.")

The way pharmaceutical-detailing works is complex, but it often involves sending representatives to doctors’ offices — sometimes with goodies like cookies, free drug samples for patients and “educational” materials, which usually reference drugs and devices sold by the representative’s company. Detailing is expensive — companies spend more than $7.5 billion per year on it — but it is also considered a very effective way to promote drugs and other medical goods.

So what was the reasoning behind the Vermont law? The e-mail I received focused on physician privacy. Indeed, the law was spurred by the Vermont Medical Society, which issued resolutions in 2006 over concerns about doctors’ privacy as well as the privacy of patients, in situations in which the medical identifiers were not removed fully.

This is curious because very little about the practice of medicine — a highly regulated and monitored profession — is truly private. As a physician, nearly every medical decision I make, every care note I write and every test I order is subject to review and evaluation (and sometimes even public reporting) by various public and private entities. Yet despite this, the culture of medicine elevates the sanctity of the doctor-patient encounter; so for many, the commercial sale of prescription information — a byproduct of that encounter — just feels wrong, even if the patients’ names are scrubbed. This, I suspect, is why so many doctors feel that their prescription data should be kept private. (See the most common hospital mishaps.)

It wasn’t just that one e-mail. Other doctor colleagues have told me that they are shocked that their prescription histories can be traced in order to make them targets for pharmaceutical marketing. Although many doctors welcome the attention (and the pens, free samples and cookies) that comes when a detailer shows up at the office, evidence shows that these doctors believe that detailing does not change their own personal prescription habits. In other words, these doctors think, “I am happy to hear what the representative has to say, but that doesn’t mean I will do what she recommends.” So then it feels sneaky and unfair if the detailers somehow have secret information about our personal prescribing history that they use to craft persuasive messages.

The actual reasoning behind the Vermont law (and similar legislative efforts in other states) goes beyond protecting doctors from privacy invasion. These laws were written, in part, to lessen the impact of drug-company tactics that are understood to have limited medical value. Because detailers tend to promote newer and expensive treatments and tests, their efforts come at the expense of older, well-tested, less expensive and often equally effective options. These less promoted remedies — which are often off patent and no longer generate big profits — don’t have the same type of well-financed champions to compete with the detailers for the expensive treatments. That is why Vermont and other states have passed legislation to try to level the playing field. (See the top 10 medical breakthroughs of 2010.)

But it appears that these laws may be doomed. In oral arguments last week, the Supreme Court Justices appeared to be highly skeptical of the constitutionality of the Vermont law, worrying aloud that it unfairly restricts commercial free speech. Legal analysts have since predicted that the law will be struck down.

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