Big Pharma and the mainstream media have joined forces to assert their right to look at your medical records under the First Amendment. The two lobby groups became strange bedfellows in separate but aligned friend-of-the-court briefs to the U.S. Supreme Court, which will hear arguments over whether drug companies have a right to buy prescription drug data from pharmacies on April 26.
The case, Sorrell v. IMS Health, is about a Vermont law that bans prescription "data mining" -- the practice of pharmacies selling their dispensing data to drug companies, who then use it as market research. The law was passed because the state believed drug companies used the data to manipulate doctors' prescribing habits in favor of more expensive treatments, which taxpayers ended up paying for. The law had the collateral benefit of handicapping drug companies' ability to identify individual patients from the circumstantial evidence of their prescriptions, their doctors, and their locations.
Unsurprisingly, the drug industry lobby group PhRMA filed a brief arguing that the law is unconstitutional because it "discriminates against pharmaceutical manufacturers based on content and viewpoint." (The "content" being Rx data and the "viewpoint" being "buy our drugs, not their drugs.")
Unexpectedly, PhRMA was joined by the Associated Press, Bloomberg, McGraw-Hill, Hearst Corp., and the Big Media investigative non-profit group ProPublica (among others) in one brief; and trade publishing group American Business Media,* Reed Elsevier and -- tellingly -- The National Association of Professional Background Screeners in another. They, too, want to retain the right to buy prescription drug data and study it.
Officially, the data does not specifically identify patients by name. But according to the state of Vermont, it does identify:
... the prescriber's name and address, the name, dosage and quantity of the drug, the date and place the prescription is filled and the patient's age and gender.You do not have to be a genius to put that information together with other public databases in order to identify patients specifically. Drug companies do this all the time. Often, they run ad campaigns offering help and support to patients who sign up. With those names and addresses in hand, it's easy to cross-check them against the prescription data and figure out who, exactly, received that herpes suppressor or that antidepressant.
- UPDATE: IMS, in a statement to BNET, denied that the case is about patient privacy (read the full IMS statement here):
The upcoming Supreme Court case Sorrell v. IMS Health is about the First Amendment and patient care, not patient privacy. News organizations like the Associated Press, Bloomberg, McGraw-Hill, Hearst Corp. and others filed an amicus brief in the case because they believe that the Vermont statute "failed to adequately understand, define and protect First Amendment Rights to gather, publish, and report on computerized data and important information and analysis that is based on such data.Your senator's medical records
Now imagine that data in the hands of the media. I'm an infamous First Amendment absolutist -- I spent four years litigating to force a New York court to open documents describing corruption on Madison Avenue -- but even I am not sure that the press should be able to figure out what your local senator or pop star most recently went to the doctor for.
The media firms know this, too. The AP/Bloomberg/Propublica brief devotes several pages to the awesomeness of their own database-sifting skills. They claim there is a "public interest" in monitoring prescription drug databases in order to detect adverse events from bad drugs. This is true -- but the FDA already maintains the gold standard database for that information, and it's already available to the public.
Even if there were some public interest advantage to giving the media access to Rx information, it would come coupled with the pharmaceutical industry's continued access to the same. I can assure you that Pfizer, Johnson & Johnson and Merck et al.'s interest in these databases will be far more enduring, better resourced, more granular and more thorough than Bloomberg's will ever be.
*Disclosure: I won the ABM's 2005 Neal Award for best series of articles.
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