Drug info firms target prescriber data laws

Doctors do not have a privacy right to their prescription-writing habits, data-collection firms say as they sue in Vermont and Maine.

By Kevin B. O'Reilly, AMNews staff. Oct. 1, 2007.

After landing a first-round federal court victory against a 2006 New Hampshire prescriber privacy law, data-gathering firms are targeting similar laws set to take effect next year in Maine and Vermont.

Legislators in those two states, wary of a similar legal upset, shied away from a New Hampshire-style ban on any marketing use of prescriber data. Instead, they crafted legislation allowing physicians and other prescribers to choose whether drugmakers can access their prescription data.

In Maine, doctors could opt out of data sharing; in Vermont, they could opt in.

But prescription-data-collection firms IMS Health Inc., Verispan LLC and Source Healthcare Analytics Inc. filed federal lawsuits in late August challenging the new laws. The complaints argue that they violate the U.S. Constitution's First and 14th Amendments as well as the Commerce Clause.

"The problem with the Maine and Vermont laws is that they create an entirely new and unprecedented privacy right for physicians in their professional conduct," IMS spokesman Randy Frankel said. "Improving our health care system depends on access to more information, not less."

The U.S. District Court of New Hampshire ruled last spring that the state's prescriber privacy law infringes on constitutionally protected commercial speech rights. The court also concluded that physicians do not have a privacy right in their prescribing habits. In August, New Hampshire Attorney General Kelly Ayotte appealed the decision to the 1st U.S. Circuit Court of Appeals. A ruling is not expected before next year.