I just read the recent report on the Supreme Court striking down the Vermont law that bans the practice of data mining. “Data mining” occurs when third party corporations purchase prescribing information from pharmacies and match it to individual doctors through a 44 million dollar deal with the AMA to utilize its physician master file. The third party corporations then sell this linked data to pharmaceutical companies to assist their detailers in their marketing efforts.
In days gone by, pharmaceutical companies had a hard time acquiring this information because doctors wrote their prescriptions by hand. Today, as we all know, doctors must e-prescribe, that is, electronically transmit their prescriptions via the internet to pharmacies. Each of thise prescriptions are carefully tracked by our significant "stake-holders" of health care: hospitals, pharmaceutical companies, governmental regulatory bodies and the like.
What interests me from this ruling is that the act of collecting this information -- the prescribing physician's name and address; the name, dosage, and quantity of the medication; the date and place where the prescription was filled; and the patient's age and gender -- was considered "speech" with the justices ruling that "the creation and dissemination of information are speech for First Amendment purposes."
Think about that: writing a prescription and disseminating that information is now "speech."
What I wonder, of course, will all our prescribing practices that are entered on an Electronic Medical Record, be they for a medical device, test, order, or request, similarly be classified as "speech" protected under the First Amendment? Might this ruling significantly impact a patient's right to privacy about their health condition as innumerable third parties can now access prescribing (aka, ordering) information in the blink of an eye electronically?
Oh wait, they already are.