Critics, including the lawmakers in Vermont, say the process allows drug companies to discern exactly which physicians are prescribing lower-cost drugs so they can target them for sales efforts to persuade them to switch to more-expensive, name-brand drugs. Physicians critical of the practice have called drug detailers' efforts coercive and even, at times, harassing.
Dr. Bernard Emkes, a physician in family medicine and a hospital medical director in Indianapolis, said drug detailers can unquestionably influence physicians' prescribing habits. Take, for example, the common practice of leaving free samples with doctors. A drug detailer is only going to leave a sample of a new $100-a-month drug for high cholesterol, even though a patient—especially one of modest means—might benefit from starting on a cheaper drug first to see if that works well enough, Emkes said.
Vermont's prescriber-data law was first upheld in U.S. District Court and then struck down by the 2nd U.S. Circuit Court of Appeals. Meanwhile, similar lawsuits in Maine and New Hampshire led the 1st U.S. Circuit Court of Appeals to reach decisions upholding the law, which created the classic split at the circuit-court level in which the Supreme Court intervened.
In defending Vermont's law in the various courts, the state's attorneys said drug detailers raise the cost of healthcare. Justice Anthony Kennedy, writing for the majority of the court, said that reason, however laudable, was not sufficient to limit drugmakers' free-speech rights.
“Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The state can express that view through its own speech,” the majority's opinion says. “But a state's failure to persuade does not allow it to hamstring the opposition. The state may not burden the speech of others in order to tilt public debate in a preferred direction.”
The justices ruled that Vermont's law was entitled to a heightened level of judicial scrutiny because it treated different types of uses of the physician-prescriber data differently. While the law banned the sale and use of the information for marketing purposes, it continued to allow the practice for academic and public-health purposes.
A recent survey conducted by healthcare marketing firm MDLinx found that 65% of 740 polled physicians said they considered the collection of their prescribing history a violation of their privacy rights.
“The physician, in prescribing drugs for a patient, assumes that that action will not be used for commercial purposes, and that the treatment decisions a physician makes don't become a valuable product for drug companies to test the efficacy of their marketing techniques,” said Paul Harrington, executive vice president with the Vermont Medical Society.
Physicians making that assumption, however, may not have the law on their side.
“While physicians have a right to personal privacy, what they do in the course of their medical practice never has been private, and never should be private,” said Frankel, the vice president with IMS Health. “In order to improve patient care, we have to know what works and what doesn't.”
The American Medical Association said it supports the “appropriate” release of physician prescriber data, and a spokesman for the group acknowledged that the AMA plays a key role in the dissemination of the prescriber data by selling access to its database of physician identities to data-mining firms in exchange for undisclosed fees.
However, the Chicago-based physician trade group said it has created the Physician Data Restriction Program to allow doctors to opt out of disclosure of their information to pharmaceutical detailers, while still allowing analysis of the data by government and academic researchers.
Although the AMA reported that 96% of its users were satisfied with the program, Thakkar of the National Physicians Alliance said the program is inadequate because it is not mandated by law, and because the program doesn't stop pharmaceutical makers from getting the data—only their detailers. In the long run, Harrington said, the Supreme Court's decision not to address more squarely questions about physician privacy and restrictions on commercial speech will lead to future litigation as states continue looking for ways to contain healthcare costs.