Supreme Court Says Pharma Companies Can Have Access To Drug Prescription Info To Pressure Doctors Into Prescribing More Expensive Drugs

from the feeling-safer? dept

Fri, Jun 24th 2011 2:00pm — Mike Masnick

Earlier this year, we wrote about the Sorrell v. IMS Health case, which pitted questions of free speech vs. medical privacy. Basically, Vermont had passed a law that barred data-mining and pharma firms from buying up detailed prescription data that pharmacies had collected per government request. The pharma companies wanted that data, because (for example) if they learned that Dr. Smith was prescribing generic versions of their pills, they could send a "salesperson" (and I use that term lightly) to pressure him into instead prescribing their more expensive drug. The pharma companies argued that this was a violation of their free speech rights. While I'm a strong First Amendment advocate, I didn't see how this argument made much sense. After all, the only reason this data exists is because the government required it be collected. As such, it seems reasonable that they should be required to make sure such info remains private. No such luck.

The Supreme Court ruled that such a law violates the First Amendment. The key issue, it appears, is the fact that this law is targeted specifically at pharma firms. Carving out certain groups, companies or individuals is definitely seen as a no-no. Still, recognizing that, I'm somewhat confused by the ruling. The only reason this information exists in the first place is that the government required pharmacies to hand it over (I believe as part of their attempt to find illegal drug users). And we're talking about medical data. Given that, it seems perfectly within the realm of possibilities that the government should be able to regulate who has access to that sensitive data. But the Supreme Court didn't feel that way. I agree with the dissent (Justices Breyer, Kagan and Ginsburg), in suggesting that the Court doesn't seem to fully recognize the situation, and how this is hardly a restriction on free speech.

That said, if there's some silver lining here, it's that the Supreme Court has issued yet another pro-First Amendment ruling. With so many attempts to abuse copyright law to stifle speech lately, including some cases that have half a chance of making it all the way to the Supreme Court, hopefully the court will similarly recognize the role of the First Amendment in not allowing the government to censor forms of speech they don't like.

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Filed Under: data, first amendment, pharmacies, vermont

34 Comments

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rubberpants (profile), 24 Jun 2011 @ 2:05pm

With the SCOTUS, Congress, and the Executive all snuggly in the pockets of the largest corporations the only thing standing between us and total destruction is the League of Women Voters. Go get 'em gals.
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cjstg (profile), 24 Jun 2011 @ 2:24pm

are we not men (and women)?
i'm just as likely as anyone to feel the effects of peer pressure. what i can't figure out is why these doctors fear the drug company representatives. other than a few lunches and freebies, what do the doctors get out of the relationship.

i am not a doctor, but i think i would have a little more concern about my patient's health, safety and pocketbook than a few freebies from big pharma.

could somebody fill in the blanks here? why do these companies have so much power over the doctors? or are the doctors just like teenagers following the whims of the popular people in school?
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Scote, 24 Jun 2011 @ 2:26pm

WTF?
Our right to privacy is so broad that it ensures that abortions are legal, but it is so weak that the government can't prevent our medical data from being sold to companies that have no medical need for it????

Does that mean the whole HIPAA Privacy Rule is null and void so long as somebody *pays* for the information? Can I just buy medical records for marketing purposes now?
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DogBreath, 24 Jun 2011 @ 2:28pm

Prepare for big tobacco to get in on this one,
because to prohibit them from the same access would violate their First Amendment rights.

With access to drug prescription info on doctors prescribing nicotine control patches to help patients to eventually quit smoking, big tobacco will use that info to pressure doctors into prescribing more expensive drug delivery systems, cigarettes.

More Doctors Smoke Camels Than Any Other Cigarette
http://www.youtube.com/watch?v=gCMzjJjuxQI

When Doctors, and Even Santa, Endorsed Tobacco
http://www.nytimes.com/2008/10/07/business/media/07adco.html
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trish, 24 Jun 2011 @ 2:36pm

funny
i find it funny that companies have 'free speech rights'. People have free speech rights, because people can speak. Companies don't speak, they're not persons, they're groups of people. Seems to me 'company free speech rights' are a way to get the people with most money to have double free speech rights.
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Anonymous Coward, 24 Jun 2011 @ 2:38pm

Re: are we not men (and women)?
It's like with marketing. Studies show that if you ask anyone, including doctors, if their decisions are affected by marketing and advertising, many of the people who said no are in fact affected.
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anoncow, 24 Jun 2011 @ 2:45pm

there's no evidence that that feds are using the data to curb drug abuse.
As far as I can see, the only tracking being done in the state of Kentucky that gets used to limit doctor shopping is the state's KASPAR system. It is a scheduled drug tracking system oriented towards the user. I haven't seen the Feds go after the pill mill doctors here much, in spite of abundant evidence showing abuse. Recently other states have been under pressure to construct similar KASPAR-like tools. Florida is an example of one of the worst offenders both in terms of pill mills and government reluctance. The extraordinary dollar value of commercial opiates has created a long line of Kentuckians traveling to Florida for pills that they sell here on the streets. I'm told by Florida residents that their state wants to test as many folks as they can, but it took serious armtwisting from Ky legislators (McConnel and Rogers) to bring Florida into a supportive posture. KASPAR has been a good thing here, but given the scope and scale of the problem, it too is just a band-aid.
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Chris Rhodes (profile), 24 Jun 2011 @ 2:50pm

Another Government Solution
To a government-created problem.

I'm pretty positive on the Citizens United ruling, and consider it one of the best decisions to come out of the supreme court in recent years, next to Heller, but in this case it's hard for me to decide who to root for.

1. Forcing pharmacies to collect this information is wrong. (Strike one against the government).
2. Preventing someone in possession of this information from giving it out (absent contract) is wrong. (Strike two against the government, and one against the pharmacies).
3. Profiting off the force displayed in #1 is wrong (Strike one against the pharmaceutical companies).

There are no good guys here.
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Richard (profile), 24 Jun 2011 @ 2:54pm

So the ruling basically states that the US Government is not able to regulate the release of sensitive information? So then surely they can't make documents classified and thus restrict their release?
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The eejit (profile), 24 Jun 2011 @ 2:57pm

Re: Another Government Solution
It's not just that, it's that it also backs up the First Amendment in caselaw. Yes, it's a horrible ruling, but there was another one that went to SCOTUS that I found through being linked to it via the LA Times website.

There are no good guys, but I noted when I saw it that it was rather unusual that the conservative-leaning SC Justices didn't untie, and neither did the liberal-minded (it was a 6-3 vote).
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Chris Rhodes (profile), 24 Jun 2011 @ 3:07pm

Re: there's no evidence that that feds are using the data to curb drug abuse.
Or we could just legalize painkillers and skip the enormous costs, authoritarian nonsense, and support of criminal cartels that drug prohibition produces.
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ShellMG, 24 Jun 2011 @ 3:12pm

Re: are we not men (and women)?
After being stuck in the waiting room for over two hours and watching pharmacy reps go in and out, I asked my doctor when I *finally* saw him. I was pretty irritable by then, since I had a nasty upper respiratory infection and felt rotten for infecting the other patients.

Those "freebies" the doctors get in the form of samples are given to patients in order to spare them expensive drug costs, especially the elderly. It's better to hand the patient a 10 day supply to see if the drug will actually work before writing a script for a 30 day supply that doesn't. At least that was the practice of my doctor, and I was the recipient of a few of those samples on more than one occasion. Good thing, too -- they weren't worth the money 9 times out of 10.
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Chris Rhodes (profile), 24 Jun 2011 @ 3:14pm

Re: funny
Companies don't speak, they're not persons, they're groups of people.

So if you and I want to pool our money and produce a political video during an election season, the government should have the right to tell us no because we're a group and not individuals? What you're saying is that only rich people should have the right to speak, because they're the only ones who can afford to do it by themselves. Yikes. And don't forget: media companies are corporations too. Should the government control what the media can say?

double free speech rights

Completely nonsensical. What does that even mean? Either you can say what you want or you can't.
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Thomas (profile), 24 Jun 2011 @ 3:23pm

How much..
do the big pharma companies have to slip under the table to get a favorable ruling from SCOTUS? Are they selling rulings now?
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Anonymous Coward, 24 Jun 2011 @ 3:24pm

Re: WTF?
Our right to free speech is so broad that it allows pharmaceutical corporations access to our personal data, but they're so weak that they don't sufficiently protect whistle blowers that deserve protection.
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Marcus Carab (profile), 24 Jun 2011 @ 3:41pm

Re: Re: funny
I'm guessing trish is just coming from a misunderstanding of how corporations work as legal entities - and to be fair, there are some curious grey areas with that, so go easy on her! :P

@trish: the whole purpose of incorporation is to turn the company into a legal entity. That's a good thing. Otherwise you would be held personally, legally responsible for anything that goes wrong with your company, even if it was not a result of your negligence (it can certainly be argued that the laws have gotten too lax on the negligence side, but that's another story).

So consider free speech. There are still ways to run afoul of it: libel and defamation are the biggies. Now consider something like a newspaper, that relies on free speech. Sure, it could operate by relying on the personal free speech writes of its publishers, but then what if it made a mistake? What if a bad (or purposely deceptive) journalist, maybe even an intern or a freelancer, published a libelous statement - the publisher could be personally sued! That would not be fair. As a corporation, it's the newspaper that gets sued and takes the financial penalty.

Of course, as we observe here, the sword sometimes cuts both ways. In this particular situation, I'm rather confused - I am going to have to read a lot more to understand how this is even a first amendment issue to begin with. But in general, the concept of corporations as legal entities with rights is not a bad thing.
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Marcus Carab (profile), 24 Jun 2011 @ 3:45pm

Re: Re: Re: funny
(I realize in my example I should have mentioned that if the journalist were purposely deceptive, they might be personally sued too - but if they simply made an error, they would be protected from having their life decimated by lawsuits)
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Anonymous Coward, 24 Jun 2011 @ 3:46pm

I am a bit surprised that this article seems to support the dissenters. After all, they are in essence saying it is OK to lower the First Amendment bar from strict scrutiny to some intermediate level.

I would have expected just the opposite.
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CarlWeathersForPres, 24 Jun 2011 @ 3:50pm

From SCOTUSBlog:

http://www.scotusblog.com/2011/06/opinion-analysis-like-ships-passing-in-the-night/

Really, the issue as Mike said, is the neutrality of the legislation. The first amendment is supposed to create a "marketplace" of ideas, where the best rise to the top, and it is the key to democracy. Commercial speech is slightly lower on the totem pole than political speech, but every company still has the right to engage in offering a product to sell. Apparently the court hinted at HIPAA issues, but I'd imagine with Scalia and Alito(neither are really fans of the constitutional right to privacy, to put it lightly) in the judgement, I doubt you'd get much more than the mention that data mining might have privacy concerns.
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JB, 24 Jun 2011 @ 5:51pm

Re: Re: are we not men (and women)?
My doctor does exactly the same thing. Those samples are used for people without insurance. I don't have insurance right now and I have 4 boxes of pills right here that would have cost me an awful lot of money otherwise.
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Nicedoggy, 24 Jun 2011 @ 6:00pm

Re: are we not men (and women)?
Most big companies pay gifts to doctors that receive them and use the insurance as a buffer since the patient will not feel the financial pain directly but through an ever increasingly expensive healthcare system.

And there is a lot of doctors that don't care about their patients but what they do get out of the deals they make and they influence other doctors.

If you are the administrator of a big hospital responsible for buying the medicine that others will use, what would you buy? the generic one that gives you nothing or the pharma one that pays your vacations, call you to talks and pay for everything?

Patients won't complain since they will pay nothing because of the insurance so things gets costlier and costlier and spiral out of control to the point where is cheaper to travel to another country stay on a four star hotel and hire a 24/7 translator than it is to have the work done at home.
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CarlWeathersForPres, 24 Jun 2011 @ 6:32pm

Re: WTF?
It's not medical data, it was which doctor's made what prescriptions. I'm sure you could infer some things, but it wasn't actual patient usage/data.
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CarlWeathersForPres, 24 Jun 2011 @ 6:39pm

Re: Re: Another Government Solution
Free Speech is one of the few issues that doesn't cut down party lines. There are so many different schools of thought, and all are fairly "liberal" so there tend to be some weird votes. The caveat is if it's an abortion case, then it's straight party.
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Michael (profile), 24 Jun 2011 @ 10:03pm

"Pro-corporate speech" is NOT pro-free speech. Corporations are not people.
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Anonymous Coward, 25 Jun 2011 @ 12:49am

Silver Lining?
That said, if there's some silver lining here, it's that the Supreme Court has issued yet another pro-First Amendment ruling.

Only because it's for large corporations. You might want to look a little closer at that silver lining, Mike.
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Anonymous Coward, 25 Jun 2011 @ 12:52am

Re: are we not men (and women)?
i am not a doctor, but i think i would have a little more concern about my patient's health, safety and pocketbook than a few freebies from big pharma.

Freebies like expense-paid trips to some of the world's most desirable vacation spots? I wish I could get some of those freebies.
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Jesse (profile), 25 Jun 2011 @ 7:51am

Free speech for those with lots of money??
Just sayin...
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nyambol (profile), 25 Jun 2011 @ 10:09am

Re: Re: Re: funny
A "legal entity" is not the same thing as a "person." In fact, in the United States, a corporation is regarded as a "person." In other countries, a corporation is regarded as a "legal entity."

The stupidity and utter irrationality of regarding a corporation as a "person" is starkly revealed in this ridiculous ruling. As much as in the Citizens United ruling. Consider that, as a "person," a corporation is entitled to food stamps, a driving license and Social Security when it retires.

One possibly good thing: as a "person," a corporation cannot consume alcoholic beverages until it's 21 years old.

mp
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pat, 25 Jun 2011 @ 11:46am

not first amendment victory
this is just a big business victory.

so does this mean i can go to a pharmacy and demand the same information about all my neighbors?

hmmm... HIPAA still mean anything?
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The eejit (profile), 26 Jun 2011 @ 10:06am

Re: not first amendment victory
Hey maybe you can use that to find Vicodin addicts and give them free skag! Or maybe got those on morphine and give thewm free heroin!

Just sayin'.
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Any Mouse (profile), 26 Jun 2011 @ 7:15pm

Re: Re: WTF?
That most certainly is medical data. What medications I am on is no one's business buy mine and my doctors, and is covered by HIPAA. If the nurse can't give it away, why can the pharmacies?
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Anonymous Coward, 26 Jun 2011 @ 11:44pm

Re: not first amendment victory
so does this mean i can go to a pharmacy and demand the same information about all my neighbors?

Demand? Probably not. Buy? Quite possibly.

hmmm... HIPAA still mean anything?

It still means what it always really meant: The government and their corporate partners now have access to your previously private health records.
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Niall (profile), 27 Jun 2011 @ 6:30am

Re: Silver Lining?
Well, when he says 'silver', i.e. Ag, he really means 'silvery', i.e. Hg (mercury) = toxic and likely to flow away.
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cjstg (profile), 27 Jun 2011 @ 10:37am

Re: are we not men (and women)?
okay, i understand about the freebies, but where is the power that is being wielded against the doctors. remember, it is the doctors that are complaining about this not the public (since the data is scrubbed). are we talking about a total lack of backbone here?
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