A stranger appeared in my classroom and tells me that she has been sent by the office of student disabilities to take notes for a student. Not only can’t she tell me who the notes are for, she doesn’t even know herself. She drops off the notes and the student may or may not pick them up. If the student doesn’t come forward to explain that she needs special help with notes, I am unable to offer special assistance or care. The Health Insurance Portability and Accountability Act (HIPPA) protects the student’s privacy.
A parent called to discuss a student of mine and I say I’m not free to have that discussion without her child’s approval. The Family Educational Rights and Privacy Act is the guiding law here.
But if a pharmaceutical company wants to know the brands and the amounts of drugs a doctor has prescribed, they can get this without the physician’s approval. Drug companies purchase the information from data collection firms, such as IMS Health, which, in turn, buy it from pharmacies. Because drug stores aren’t revealing information about any particular patient, they aren’t violating HIPPA by releasing the data. However, the information from the pharmacy does contain doctors’ names, addresses and quantities of drugs doctors have prescribed.
This aggregated information can have enormous financial benefits to drug companies. Pharmaceutical makers spend over $6 billion in visits to doctors plying their drugs. Knowing what doctors are prescribing is an important wedge in knowing which doctors to visit and what to pitch.
As a family physician in Vermont said, “It’s very powerful data and easy to understand why companies want it. If they know the prescribing patterns of physicians, it could be very powerful information in trying to sway their behavior—like why are you prescribing a lot of my competitor’s drugs and not mine?” (http://www.nytimes.com/2011/04/25/business/25privacy.html)
To militate against marketing practices that might cloud a physician’s judgment, Vermont, New Hampshire and Maine have laws restricting the use of physicians’ records for marketing purposes. Not surprisingly, drug makers and data marketing companies are challenging Vermont’s regulation in court. Supporting Vermont are attorneys general from several others states, the federal government, AARP and medical associations. Supporting data firms are the national associations of advertisers and drugstore chains, joined by Bloomberg and The Associated Press.
Each side presents an ethical position, pitting privacy against free speech. The confidentiality argument is obvious: patients and doctors have an expectation that their interactions will go no further than is necessary for treatment; what the patient says to the doctor stays with the doctor. Such expectations of confidentiality foster a willingness on the part of patients to be candid with their physicians, thereby fostering appropriate care. The central argument of defenders of the law is that it protects doctors from the commercialization of private health care decisions.
Opponents of the law contend that these records aren’t protected information but are already being used by researchers who seek appropriate patients for clinical trials and to police departments. If the information is available to some, it must be available to all, is the argument. In addition, by having the data, drug companies can more quickly tell physicians about new drugs for rare diseases that are manufactured by small companies. A spokesperson for IMS Health says, “Without the data, you might visit 1,000 physicians to identify the 10 whose patients might most benefit. With the data, you would go to the 10.”
On balance, I side with the drug and data companies. Patient confidentiality isn’t being violated because numbers are being reported, not individual names. The bigger issue is whether drug representatives visiting doctors’ offices serve patients’ interests. Ideally, drugs are chosen for patients on solid medical grounds. But who has the time to sort through all the new drugs on the market? The reality is that physicians, like everyone else, rely on shortcuts. Sales representatives are, of course, biased, but they do serve as useful purpose in a less than perfect world.
As long as sales reps remain part of the picture as to how doctors get their information, then it seems to me that barring drug companies from buying aggregate information causes more harm than good.