Public Records Free Directory Blog

From the Associated Press, via My Way News on December 22, 2007:

A federal judge has ruled that a new Maine law making doctors’ prescription-writing habits confidential violates the Constitution.

U.S. District Judge John Woodcock concluded that the law, which was scheduled to take effect Jan. 1, would prohibit “the transfer of truthful commercial information” and “violate the free speech guarantee of the First Amendment.”

I was somewhat surprised to see the argument made by parties challenging the law, including IMS Health and Verispan, described by the AP as companies that “collect, analyze and sell medical data to pharmaceutical companies, government agencies and researchers.”

The companies said the law would prevent the health care community from monitoring the safety of new drugs.

This seems a bit different than the description of these companies in a November 25, 2007 article from the New York Times, authored by a doctor who had worked for a pharmaceutical company as a representative:

… I found myself astonished at the level of detail that drug companies were able to acquire about doctors’ prescribing habits. I asked my reps about it; they told me that they received printouts tracking local doctors’ prescriptions every week. The process is called “prescription data-mining,” in which specialized pharmacy-information companies (like IMS Health and Verispan) buy prescription data from local pharmacies, repackage it, then sell it to pharmaceutical companies.

… The American Medical Association is also a key player in prescription data-mining. Pharmacies typically will not release doctors’ names to the data-mining companies, but they will release their Drug Enforcement Agency numbers. The A.M.A. licenses its file of U.S. physicians, allowing the data-mining companies to match up D.E.A. numbers to specific physicians. The A.M.A. makes millions in information-leasing money.

The data-mining companies seem far less interested in monitoring the safety of prescription drugs, and far more concerned with monitoring the safety of their profit. In contrast to the claim made by the data-mining companies, it appears possible that when the records are used for prescription drug marketing, it may actually contribute to a public health risk.

As the New York Times article points out, there are reasons to be concerned about prescription drug marketing, including a concern about the potential effect on medical judgment. The author of the article admits:

… I began to think that the money was affecting my critical judgement. I was willing to dance around the truth in order to make the drug reps happy. Receiving $750 checks for chatting with some doctors during a lunch break was such easy money that it left me giddy. Like an addiction, it was very hard to give up.

The author tells a story about becoming increasingly concerned about the safety of the product he was promoting, and wonders:

Did I contribute to faulty medical decision making? Did my advice lead doctors to make inappropriate drug choices, and did their patients suffer needlessly?

As an attorney, I can understand why the author might not want to fully admit that he may have contributed to a risk of harm in order to get paid, but it seems clear that if doctors are promoting unsafe products as if the products are safe, the answer as to whether this creates a risk to patients would be an emphatic “yes.”

I think it is likely that these records will remain available, given the First Amendment issues raised by the Court to find the Maine law unconstitutional. A different legislative approach may be necessary if the targeted marketing by pharmaceutical companies compromises the medical judgment of doctors and creates risks to public health.