HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, May 23, 2007

Data-Mining, Privacy, and the Drug Companies

I hadn't been following closely this New Hampshire case, IMS Health Incorporated, et. al. v. Kelly Ayotte, Attorney General, New Hampshire, but was disappointed to learn its outcome.  The case involved a New Hampshire statute that "bars data-miners from using patients' prescription drug information to directly market pharmaceuticals to physicians—an industry practice called detailing."   The federal court found the statute unconstitutional.  Modern Healthcare Online reports New Hampshire's response to the decision:

"The state has a substantial interest in protecting the privacy of New Hampshire physicians, defending the sanctity of the doctor-patient relationship and reducing healthcare costs," said Attorney General Kelly Ayotte in a written statement Thursday. "Healthcare costs in the state of New Hampshire are skyrocketing. The Prescription Information Law protects the state's interests and the interests of New Hampshire's physicians and citizens, which strongly outweigh the pharmaceutical industry's interest in increased profits."

Here is a further update from Majikthise on that state's efforts to curb data-mining of prescription drug scripts by pharmaceutical companies.

Three weeks ago, a federal judge ruled that New Hampshire's ban on drug company data mining was unconstitutional.

As I learned when I worked in pharmaceutical advertising, the prescribing report is one of the most powerful tools in any rep's arsenals. Drug salesmen walk into doctors' offices knowing exactly how many prescriptions that doctor for which drugs. Often, doctors don't even realize that the rep has their complete prescribing stats. The reps use this information to strong-arm doctors into prescribing more of their medications. . . . .

Despite the legal setback, [the Washington Post reports that] opponents of the practice haven't given up the fight.

"We don't like the practice, and we want it to stop," said Jean Silver-Isenstadt, executive director of the National Physicians Alliance, a two-year-old group with 10,000 members, most of them young doctors in training. (Thakkar is on the group's board of directors.) "We think it's a contaminant to the doctor-patient relationship, and it's driving up costs."

The American Medical Association, a larger and far more established group, makes millions of dollars each year by helping data-mining companies link prescribing data to individual physicians. It does so by licensing access to the AMA Physician Masterfile, a database containing names, birth dates, educational background, specialties and addresses for more than 800,000 doctors.

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