And so it happened: The Supreme Court spent 70 minutes on Tuesday (4-27) hearing arguments about why Vermont’s data mining law should stay on the books, and why it shouldn’t.
This was a big deal – the major media outlets covered this event, all with a different take, which is always welcome and interesting. What we found especially remarkable was that none of them, and we read many stories, interviewed a Vermont physician. It was apparently the doctors themselves who initiated the legislation: When they found out their prescription data were being sold to the likes of IMS, they asked their legislators to write the legislation.
Most of the outlets quoted Justice Antonin Scalia, Chief Justice John Roberts and even Ruth Bader Ginsberg, who questioned the reasoning behind the legislation. They didn’t think it had much to do with protecting the First Amendment rights of the physicians, as Vermont’s legal staff claimed.
“The state is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand-name drugs,” Justice Ginsburg said, according to the Washington Post. “And if that’s the purpose, why doesn’t that run up against what this court has said — that you can’t lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?”
Critics of the law – which include many large physician groups and the New England Journal of Medicine -- contend that data mining “violates medical privacy” a core precept of the physician-patient relationship. They assert the data are private and that the law “advances state interest by closing gaps in medical privacy and protecting the patient-physician relationship from intrusion by sales people, who tend to promote newer, less-tested and more expensive brand name drugs.”
Which is fine: Except that the law also says that a physician can exclude his data, if he wants it that way.
Does pharma use this data to sell? Of course it does. Can a physician shut his door to a drug rep? Of course he can. Let us not forget that the transparency rules are in place.
We find it curious that industry critics have such little regard for physicians’ intelligence and willpower.