[privacy] Medical firms sue to access Rx information

["Richard M. Smith" <rms () computerbytesman com>]

http://www.nashuatelegraph.com/apps/pbcs.dll/article?AID=/20060729/NEWS01/10
7290092/-1/business
 
Medical firms sue to access Rx information 


By KEVIN LANDRIGAN, Telegraph Staff 
klandrigan () nashuatelegraph com 


Published: Saturday, Jul. 29, 2006


BILL AT A GLANCE        

BILL NO.: HB 1346.
SPONSOR: Rep. Cindy Rosenwald, D-Nashua. 
DESCRIPTION: The legislation makes New Hampshire the first state to keep
confidential information on which drugs doctors prescribe to their patients.

STATUS: The law took effect July 1, but two of the nation's largest direct
marketing firms have sued to block its effect, charging it violates their
First Amendment rights. 

CONCORD - Two of the nation's largest medical data firms sued to block New
Hampshire's first-in-the-nation law that would keep doctor's prescription
writing practices private.

IMS Health Inc. and Verispan LLC charged the state's new law violates
freedom of speech, illegally restricts interstate trade and could keep
unscrupulous doctors from being exposed, according to the suit filed in U.S.
District Court in Concord on Friday.

"The prohibition against communication concerning the prescription decisions
of New Hampshire doctors does not advance a legitimate privacy concern
because such decisions are not personal or private, but rather professional
and of paramount public concern,'' lawyers for the firms wrote in the
federal suit.

If successful, the suit would undo the intended privacy protections that ban
the sale of doctor's prescription information without permission.

"We always knew they wanted to keep the prescription information on doctors
flowing because that is where the big money is,'' said Nashua Democratic
Rep. Cindy Rosenwald who wrote the bill (HB 1346).

"As long as big drug companies can have this information, then their sales
reps can go into offices and try to crank out more scripts for their most
expensive medications.''

Gov. John Lynch signed the law that immediately went into effect July 1.

"IMS is a company that has a direct financial interest in getting medical
information and selling it to pharmaceutical companies. Gov. Lynch clearly
hopes the law will be upheld,'' said Lynch Communications Director Pamela
Walsh.

The law passed the Legislature despite a torrent of industry opposition.
Drug makers and marketing firms led the barrage, but pharmacies and other
medical product sellers were against it as well because they could legally
sell their lists of doctor-identifiable information to marketers.

"Patient privacy is sacrosanct, and protecting it is fundamental to the way
our industry operates," said Scot Ganow, chief privacy and ethics officer
for Verispan.

"The problem with the New Hampshire statute is that it goes well beyond
patient privacy and creates an entirely new and special privacy right for
physicians at the expense of health-care quality and patient safety."

A coalition of supporters from doctors to the state chapter of American
Association of Retired Persons argued that prescription drug marketing
drives up health-care costs as salespeople push the replacement of generic
drugs with more expensive brand-name pills.

The law allows medical information to be sold by marketing firms for medical
research and to deal with bioterrorism threats.

Rosenwald's husband is a cardiologist and helped alert her to the issue, she
said.

But Exeter Hospital Cardiology Section Chief Thomas Wharton Jr. supported
the lawsuit in a sworn statement the marketing firms attached to the
lawsuit.

"I do not believe that my professional judgment is negatively affected or
impaired when I consider the published information, practice guidelines and
local cost and formulary data given to me by pharmaceutical sales
representatives,'' Wharton wrote.

"Mere sales pitches cannot and do not influence me or the physicians I know
to start prescribing drugs.''

Wharton is not on the payroll of any direct marketing firm but got paid for
his time to give a sworn statement, said David Donohue of High Point
Communications, the public relations firm representing the companies who
brought this suit.

The American Medical Association recently began a program that will offer
all doctors the chance to declare that they don't want sales agents to have
their prescription information.

Spending on pharmaceuticals in New Hampshire went up 84 percent since 2000
and equaled $949 per person in 2005 according to the New Hampshire Center
for Public Policy Studies.

"This law was in the interest of all taxpayers because it would lower costs
and benefit the consumer because a doctor could sell a cheaper generic
without worrying about harassment from a big drug company's sales team,''
said Health and Human Services Commissioner John Stephen.

"Who is surprised the direct marketers and big drug companies would do
anything possible to preserve their huge profit margin?''

Senior Assistant Attorney General Richard Head said his office received a
copy of the suit late Friday afternoon, which numbered more than 100 pages.

"We'll review it and respond accordingly,'' Head said. 

Kevin Landrigan can be reached at 224-8804 or
klandrigan () nashuatelegraph com. 

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