Commercial Free Speech Trumps Physician Privacy

In yet another slam on the medical profession by the judicial system, a federal judge has declared New Hampshire’s Prescription Restraint Law unconstitutional.

The law, which was passed by unanimous vote in the NH legislature and signed into law in 2006, made it illegal to sell or licence prescription data that identifies the prescribing doctor. It did not restrict the use of prescribing information for law enforcement purposes, research purposes, educational purposes, compliance review purposes, or for any non-commercial purpose.

The law was appealed by two data-mining companies, Verispan and IMS Health, whose business is buying and selling physician prescribing information almost exclusively to pharmaceutical companies. They argued that the law restricted their constitutional right to free speech .

Free speech?

So Big Pharma has a right to receive my private information because those who sell my private information have a free speech right to share that private information? That seems ridiculous to me. But here it is, straight from the Judge’s opinion:

Here, the challenged Law restricts speech by preventing pharmaceutical companies from using prescriber-identifiable information both to identify a specific audience for their marketing efforts and to refine their marketing messages…Such laws are subject to First Amendment scrutiny because they affect both the speaker’s ability to communicate with his intended audience and the audience’s right to receive information.

What about my privacy?

Well, it seems that because I am a physician, I have little right to privacy. At least that’s what Judge Barbarado, who was the sole “Decider” on the case, says…

Health care providers cannot credibly claim that they have a reasonable expectation that their prescribing practices will remain private because prescriber-identifiable data is routinely disclosed to patients, pharmacies, insurance companies, medical review committees, and government agencies. In other words, because health care providers work in a “closely-regulated” industry, they have at best a diminished expectation of privacy with respect to their prescribing practices.

What next?

At least 5 other states have similar laws upcoming in their legislatures, and are watching this case closely. We will see what they do now.

I hope that the state of New Hampshire will appeal the judge’s ruling. And I would argue it from the privacy standpoint, despite what Judge Barbarado says. I would argue that I do have privacy from those who would use my prescribing data solely for marketing purposes.

Otherwise, one could argue that any data collected for regulatory purposes is free for sale to anyone for marketing purposes. And that just doesn’t seem right to me