By: Helen Oscislawski, Esq.
On April 26, 2011, the United States Supreme Court is scheduled to hear oral argument for IMS Health Inc. v. Sorrell, a landmark case that will decide whether states can place restrictions on mining and repurposing prescription data for secondary uses. See pg 9 of Court’s October 2010 Session case list.
The dispute stems from a Vermont law that banned the use, sale, or transmission of prescriber-identifiable data without first obtaining the prescriber’s consent. Several data mining companies sued the State of Vermont alleging that the statute impermissibly infringed upon their freedom of speech under the First Amendment. The Second Circuit overturned the statute, holding that it was unconstitutional for Vermont to restrict speech by data miners and pharmaceutical companies without demonstrating a compelling state interest to do so.
However, Vermont is not the only state that has adopted laws restricting the release of physicians’ prescription information. Maine and New Hampshire both have similar laws, and both have been challenged in federal court by market researchers and drug manufacturers. Unlike with Vermont, however, the Court of Appeals for the First Circuit upheld the statutes in New Hampshire and Maine, ruling that the laws restricted market research companies’ conduct, specifically the aggregation of data for drug marketing purposes, rather than their speech.
A split in how the First Circuit and Second Circut Courts have decided these cases has prompted the Supreme Court to review the issues presented. If the Supreme Court follows the opinion of the Second Circuit, this may have profound implications for prescription privacy because without restrictions on data mining, database firms and pharmaceutical intelligence companies such as IMS Health, Inc. may increasingly collect, transmit, and sell prescription data for sales purposes. On the other hand, data mining companies have been collecting pharmaceutical sales and prescription data for years, and pharmaceutical drug companies maintain that the practice is an essential research tool to help educate doctors about prescription drugs in a targeted and expedited manner.
When the Supreme Court makes its decision, it will need to consider all the implications of the practice of data mining. In either case, the impact of the decision will be profound. Readers who are interested in reading the final opinion should expect that the Court’s final decision may not be released until early Fall 2011.
Helen Oscislawski is a principal at Attorneys at Oscislawski llc, a boutique healthcare law firm located in Princeton, New Jersey specializing in privacy, HIE, HIT, and other legal issues affecting the healthcare industry.
