Before I practiced in the area of drug litigation, I had no idea that there are businesses whose primary function is to purchase prescription data from pharmacies and then sell that data, including the individual physician’s prescribing histories, to drug companies.
Apparently, I am not alone. In a May 17, 2001 article written by Dr. Zachary Meisel in Time magazine, “Should Drug Companies Get to See What Your Doctor Is Prescribing?”, Dr. Meisel notes that he has had conversations with colleagues who have expressed great surprise that their prescription histories can be traced and analyzed by the drug companies’ marketing departments (patient names are not included in the data purchased by the pharmaceutical industries).
While many doctors and others in the medical field were and are not aware of this prescription data-mining practice, some legislators had taken notice. In 2007, Vermont passed a law which banned the use and sale of prescriber-identifiable prescription data unless the prescriber consents to the use of the information. IMS, one of the companies that mines prescription data, and the Pharmaceutical Manufacturing Association (PhRMA), challenged the Vermont law. The trial court upheld the law, but the United States Court of Appeals found the law unconstitutional. The United States Supreme Court elected to hear the case and yesterday, June 23, 2011, the Court, in a 6-3 decision, found that Vermont’s law was unconstitutional as it violated commercial free speech.
Dr. Meisel anticipated this result and recommended to his doctor colleagues to take advantage of a 2006 agreement between the American Medical Association and pharmaceutical companies. The plan is known as the prescription-data restriction program (PDRP). While PRDP does not completely block physician’s prescription histories from being obtained, it is a good start.
It is unnerving to know that the prescriptions that our doctors write us in private consultations can later be purchased and sold. While the Supreme Court permits companies such as IMS to legally do so, patients, physicians and the public at-large must publicize this issue. Encourage your physicians to sign up for the PDRP. Or, better yet, demand that our prescription services, mail order pharmacies and local drugstores restrict the sale of our doctors’ personal prescribing habits.
Greg Spizer is a partner of Anapol Weiss and co-chairs the firm's Mass Tort Department. He concentrates his practice on pharmaceutical liability, professional malpractice, products liability and other civil and commercial litigation.