A recent New England Journal of Medicine commentary suggested that the AMA had sabotaged the PDRP. The authors, writing about a Supreme Court decision striking down a Vermont data mining law, noted that the AMA makes a lot of money from selling its physician lists, which data miners combine with prescribing data.
"To date, few physicians (approximately 4%) have signed up for the PDRP, perhaps because the AMA's financial interests cut against strongly promoting the program," wrote the commentary's authors, Michelle M. Mello, JD, PhD, of Harvard School of Public Health, and Noah A. Messing, JD, of Yale Law School. "The AMA realizes substantial revenue from the sale of physicians' professional data, and widespread physician opt-out would reduce the usefulness of the data to [drug data mining companies]."
In response, Carmel told InformationWeek Healthcare, "the American Medical Association has dedicated substantial resources to an ongoing multi-year campaign promoting its program to provide physicians with the choice to designate their prescription data as off-limits to pharmaceutical sales representatives. Assertions that call into question the AMA's commitment are unfounded speculation that ignores the facts.
"To promote the PDRP, the AMA has sent program information to half a million physicians in each of the past three years, has promoted it in numerous medical and specialty journals, and included it regularly in AMA electronic communication channels. Despite national publicity for the PDRP, enrollment in the program has not matched expectations of critics who would rather hurl reckless accusations at the AMA than admit that physician awareness of the PDRP has little impact on enrollment rates," said Carmel.
The main argument of the NEJM commentary is that state data mining laws that focus on physician privacy might withstand judicial scrutiny better than the Vermont law, which got tangled up in public policy goals.
However, there's a basic problem with this approach: Many physicians don't care whether drug reps use analyses of their prescribing patterns to market new medications to them. According to a Gallup poll conducted before the PDRP's 2006 launch, 84% of physicians said they were either unconcerned about the release of this prescribing data or would be satisfied if they had the ability to opt out of data mining schemes. The PDRP's small enrollment underlines the same point. As the Supreme Court observed, all doctors have to do to prevent their prescribing data from being used to market drugs is to keep drug reps, or detailers, out of their offices.
In fact, many physicians like the visits from detailers and, until ethics rules prohibited it, enjoyed being invited to lunch or having lunch brought in for their offices. Do the detailers' visits influence their prescribing patterns? Most doctors would say no, but studies indicate the opposite. And that's why states like Vermont, New Hampshire, and Maine have passed laws to restrict the use of prescribing data in pharmaceutical marketing. They wished to discourage unnecessary prescribing of brand-name drugs that inflated healthcare costs.
The Supreme Court did not view that as a sufficient reason for Vermont to restrict the free speech rights of corporations. In William Sorrell vs. IMS Health, the high court ruled on June 23 that data mining firms can sell information about physicians' prescribing patterns. The court also said that drug companies can use that data to market drugs to doctors unless they request that their data be excluded.
The justices who joined the majority opinion said that the Vermont law discriminated against the pharmaceutical companies and data mining firms by prohibiting the prescribing data from being used for marketing purposes, but allowing physicians to share it with other entities. In addition, one justice contended that "the state may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements that contain impressive endorsements or catchy jingles."
The AMA believes that physicians should be able to protect their privacy by barring mining of prescription data if they so choose. But the association prefers its own approach to state laws that might be overly restrictive.
"The AMA's PDRP is the nation's best option for balancing individual physician opinions regarding prescription data with First Amendment freedoms and the fundamental public interest in robust medical research that result from appropriate disclosure of prescriber data," Carmel stated.
That leaves the states in a curious position, unable to assert that they are defending physicians' privacy rights or prove that restrictions on data mining for public policy purposes are constitutional.
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