Should drug companies know what the doctor prescribed

It's an interesting test case on what data can do for medicine, asking whether we want it done or not.

At issue is the New Hampshire Prescription Confidentiality Act, banning the sale of personal prescription information for marketing purposes.

Courts have gone back-and-forth on the constitutionality of the Act. Federal judge Paul J. Barbadoro, a Bush Sr. appointee,  ruled that it violated the First Amendment rights of IMS and Verispan, another data spinner. Now a three-judge panel brought in from the 6th District,  based in Cincinnati, has ruled the other way.

IMS buys data, strips out patient identities, then sells the drug industry reports on the data, matching patient numbers to doctors, and giving the drug companies notice of the doctors' prescribing habits, which they then market against.

In addition to the company reports from which they make their money IMS also uses its data to create general reports on industry conditions, like this one predicting the total U.S. market for prescription drugs will actually fall this year.

Vermont passed a law similar to New Hampshire's, allowing doctors to opt-out of the data sales. This was stayed after the first New Hampshire decision came down, but the Cincy judges' decision caused that law to be upheld.

Doctors don't like their privacy being intruded on by marketers any more than their patients do, and the AMA has signed 22,000 doctors nationwide to its Physician Data Restriction Program since 2006.

The legal case pits the First Amendment's commercial rights against state authority to regulate commerce. The states in this case are regulating commerce in data that is collated and distributed out of state. I have no idea how the Supremes might rule.

Question is, however, whether this is  good public policy? OK, the drug companies may see you're prescribing the cheap stuff and try to convince you the expensive brand is better. But the government, given access to the same data, might push doctors the other way.

And this might lower total drug costs.

This is at the heart of comparative effectiveness. You collect a lot of data. You massage that data to see what works best, given similar patients with similar conditions. Then you deliver that data, in the form of recommendations, at the point of care. And you expect doctors to do the right thing by patients' wallets as well as their bodies.

The intent of the New Hampshire law seems to fly in the face of this. If you can't get access to the data, then you can't tell what works, and you certainly can't tell who is following best practices and who isn't.

The goal of IMS Health may be to help get the name brand, patent-protected stuff prescribed more, but the same data is needed if we're to evaluate whether the no-name generic might be best.

So, forget what's legal and what should be legal for a moment. Which is right for patients, for doctors, and for the health care system as a whole?