While the Supreme Court is busy deciding whether states have the right to ban drug companies from using prescription data for marketing, new class-action suits launched against Walgreens and CVS have opened an explosive new front in the fight over prescription data mining. The lawsuits, filed in California and Pennsylvania in March, don't question the right of pharma companies to collect and use prescription data for marketing to doctors, which is the central question in the Supreme Court case, but they do question who owns the data -- and thus, who should profit from its sale.
Todd Murphy, a father of two and a plaintiff in the California suit, filled prescriptions for his daughters at a Walgreens store in San Diego. After discovering that the information on those prescriptions was sold to data-mining firms and then to pharma companies, Murphy decided to question Walgreens' legal right to do so. His argument was simple: since he paid for the prescriptions, he was the owner of the information on those prescriptions. Walgreens, then, he charged, sold something it didn't own. The Pennsylvania case, brought by the Philadelphia Federation of Teachers Health and Welfare Fund, makes a similar argument. It alleges that CVS illegally made money by selling patients' private information -- sex, age group, state, prescribing physician, and drug prescribed -- to Eli Lilly, Merck, AstraZeneca, and Bayer.
The battle over prescription data has been raging since 2006, and it is more than just another skirmish in the ongoing war over information privacy. What's at stake is the sanctity of the doctor-patient relationship, and whether it should be free from corporate interference. While some assert that in the Internet Age we must accept that our personal information is "out there" for others to do what they like with, this is not Facebook or Google we're talking about. In those cases a tacitly agreed upon exchange takes place: we accept, however begrudgingly, that our free access to search engines and social networking sites is paid for by the personal information we willingly supply them. Like it or not, at least we're getting something in return for the privacy we're relinquishing.
No such exchange occurs when it comes to prescription data. When our doctor scribbles a prescription on his little square pad we rightfully expect that information to remain between us, the pharmacy and our insurance company. When, exactly, did we agree to allow others -- data-mining firms, pharmaceutical companies, and who knows who else -- to access this data and profit by its dissemination? None of us ever made such an agreement. Yet that data is taken without our consent and sold, and we get nothing for it. This is wrong and it should be stopped. Thirty five states, the Association of American Physicians and Surgeons, The National Physicians Alliance, AARP, the New England Journal of Medicine and many other groups have issued supporting documents in the case before the Supreme Court, Sorrell v IMS Health, asserting that states should have the right to ban the practice if they see fit.
The Supreme Court, however, is unlikely to see it this way. Sorrell v IMS Health hinges on the issue of free speech; the drug companies and data-mining firms say banning the practice violates commercial speech. Vermont and its supporters, on the other hand, contend that the practice constitutes conduct, not speech, and that using the data for marketing increases health care costs because it allows drug reps to overly influence the prescriptions doctors write, which generally means getting them to prescribe brand-name drugs over generics. (These charges are bolstered by the accounts of former drug reps such as Jamie Reidy and Kathleen Slattery-Moshkau, both of whom I interviewed, and who asserted that prescription data was crucial to "manipulating" doctors.)
A decision in Sorrell v IMS Health is expected this summer, but it already appears likely, based upon the questioning and the general corporate-friendliness of the Roberts Court, that the mostly right-leaning justices will once again side with corporations over individuals. It is possible, however, that Todd Murphy and the plaintiffs in the class-action suits anticipated this, which might be why they are not seeking to ban the practice, but rather to force the corporations to share the profits. Should Murphy and his cohorts succeed, they will effectively have accomplished what Vermont attempted to do: end the practice of prescription data mining for marketing purposes. Why? Because it's unfathomable that these corporations will continue paying for the collection of your private prescription information if they're required to cut you a share of the booty -- booty that was worth three-quarters of a billion dollars to Walgreens alone in 2010.
This has been cross-posted from Guernica Magazine.