After shrugging at a similar plea for a hearing in July of 2009, the Supreme Court has decided to weigh in on the legality of selling prescriber data – or information that details the prescribing habits of physicians – to drug marketers.
The decision follows a victory for data providers, including IMS Health, SDI and Wolters Kluwer, in Vermont last November. In that state, a federal appeals court reversed a district court ruling that limited the commercial exchange of prescriber data. Unlike New Hampshire, where a ban on prescriber data remains in place, physicians in Vermont had to give consent in order for their prescribing records to be tracked; without that consent, data firms were not allowed to sell a doctor's prescribing data to pharmaceutical marketers in Vermont, according to Phil Oliva, a spokesperson for IMS Health.
That stricture, which drastically limited the prescribing data available with respect to Vermont doctors, infringed on First Amendment protections by limiting the free exchange of commercial information, the data firms claimed, and the 2nd US Circuit Court of Appeals agreed last November, overturning a lower court decision that upheld the limited ban. That prompted Vermont Attorney General William Sorrell to file a petition with the Supreme Court on December 13, and on January 7 the court granted a writ of certiorari, meaning it agreed to hear the case.
The case is expected to be argued in April, with a decision coming in late June, according to Oliva. Calls to the Vermont Attorney General's office were not immediately returned, but Attorney General Sorrell said in a statement that “Vermont doctors pressed for this law because of their concerns about privacy, and because they view this data mining practice as an intrusion into the way doctors practice medicine. We look forward to defending this important law in the Supreme Court.”
Oliva countered that opinion, and said that prescriber data is already legally collected for other purposes. “As far as privacy issues, with the information we receive from the CVSs and Walgreens of the world, the patient identifiers are already stripped out. Every court, even the ones that have ruled to uphold [similar laws], have said there's no patient privacy issue,” said Oliva. "There's nothing in the statutes that says that government, academic researchers, and insurance companies can't use this data for their purposes, so you really can't claim medical privacy, if that's the intent.”
Data firms first requested a Supreme Court hearing on prescriber data following the New Hampshire case. In New Hampshire, a statewide data ban was reinstated by the 1st Circuit Court of Appeals, after being overturned initially by a lower court. The Supreme Court declined to hear that case.
IMS Health, for its part, has created a comprehensive website – IMSFreeSpeech.org – that provides court submission documents and previous decisions, as well as case studies and other information surrounding the issue. Verispan (now part of SDI) and Source Healthcare Analytics (a subsidiary of Wolters Kluwer Pharma Solutions), are also named in the case.