Boston University School of Law

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

Michael Kevin Outterson
(Boston University)

Christopher T. Robertson
(Harvard University)

David Orentlicher
(Indiana University - Indianapolis)

09-1913-cv(L), 09-2056-cv(CON), United States Court of Appeals for the Second Circuit, IMS v. Sorrell, amicus brief in the appeal from the United States District Court for the District of Vermont

Boston University School of Law Working Paper 09-44

Abstract

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

SSRN Accepted Paper Series

Size: 292 KB
Est. download time @ 28.8K: 10 seconds

Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

 

Suggested Citation:


Michael Kevin Outterson, "

Kevin Outterson Contact Information

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215
Email address: mko@bu.edu
Office Phone: (617) 353-3135
Fax: (617) 353-3077

Christopher T. Robertson Contact Information

Harvard Law School
Cambridge, MA 02138
Office Phone: (617) 495-9410
Email address: crobertson@law.harvard.edu

David Orentlicher Contact Information

Indiana University School of Law - Indianapolis
Lawrence W. Inlow Hall, Room 136G
530 W. New York Street
Indianapolis, IN 46202-3225
Office Phone: (317) 274-4993
Fax: (317) 274-0455
Email address: dorentli@iupui.edu

 

 

SOCIAL SCIENCE RESEARCH NETWORK