43 Pages Posted: 19 Sep 2009 Last revised: 28 Feb 2014
Date Written: September 17, 2009
This is the “Physicians’ Brief” filed in the Second Circuit data mining cases (IMS v. Sorrell) on behalf of amici curiae New England Journal of Medicine, Vermont Medical Society, Massachusetts Medical Society, New Hampshire Medical Society, National Physicians Alliance, and American Medical Students Association. Data mining of prescriber-identifiable (PI) medical records offends the privacy of the physician, but also permits companies to identify particular patients against their wishes. Data mining assists drug companies in illegal off-label promotion by identifying both high and low prescribers for promotional attention. Data mining has also supported the promotion of dangerous drugs. In addition to the privacy concerns, these practices are dangerous and raise health care costs. The Vermont Prescription Privacy Law is part of a larger statutory framework of state and federal laws protecting medical privacy. Federal law has carved out a special role for state medical privacy laws, protecting them from federal preemption. Furthermore, the First Amendment does not protect speech when the underlying data was obtained illegally. Vermont satisfies the Central Hudson test and the Prescription Privacy Law should be upheld. The First Amendment does not require this Court to overturn the legislative determination by the elected government of Vermont, especially when the State has extensive experience as a health care payor and is well versed in cost control options. Moreover, the Prescription Privacy Law does not ban data mining, but leaves this important decision in the hands of the person best able to decide whether it helps the patient or not – the prescribing physician.
Keywords: public law, constitutional law, first amendment, health law, electronic health records, privacy, data mining, pharmaceuticals, marketing
JEL Classification: K19, K23, K29, K32
Suggested Citation: Suggested Citation
Outterson, Kevin and Robertson, Christopher T. and Orentlicher, David, Physicians’ Brief in the Second Circuit Data Mining Cases (IMS V. Sorrell) on Behalf of Amici Curiae New England Journal of Medicine, Vermont Medical Society, Massachusetts Medical Society, New Hampshire Medical Society, National Physicians Alliance, and American Medical Students Association (September 17, 2009). Boston Univ. School of Law Working Paper No. 09-44; Harvard Public Law Working Paper No. 09-55. Available at SSRN: https://ssrn.com/abstract=1474926 or http://dx.doi.org/10.2139/ssrn.1474926