Medicine That’s a Little Too Personalized

In my family, we agree to disagree on some things. Among them are the ads on Facebook and Gmail individually targeted to our demographics and message content. I find them creepy, a sign that someone is watching. Our kids don’t see the harm. “It’s not that someone is watching,” my son says. “It’s computer algorithms.” Besides, he likes ads for things that might interest him.

That argument came to mind this spring when I was reading about Sorrell v. IMS Health, a Supreme Court case over doctors’ right to refuse to have their prescribing histories sold to drug companies, which then use it to hone their sales pitches. The ethical and policy questions are bound to multiply long after the Supreme Court decides. Electronic medical information is easy to mine and lucrative to market. And in this case, it isn’t just computers watching—it’s salespeople for powerful corporations whose sole purpose is to influence how doctors treat their patients.

When a patient fills a prescription, law requires the pharmacy to keep a record of the patient’s name, the doctor’s identification, and the drug prescribed. Over the last two decades, a market has developed for this information. Data-mining companies buy it (with the patients’ names encrypted) and create a profile of each prescriber that includes her name, specialty, location, which drugs she prescribes, and how often. The data-mining companies then sell the profiles to pharmaceutical companies.

To a drug company sales rep, this information is the Rosetta Stone—the key to understanding a doctor’s mind. Knowing that a doctor prescribes one drug more often than its competitor can help the competitor’s rep frame his sales pitch effectively, while the preferred drug’s rep can reward the doctor—with gifts, speaking offers, and other financial incentives—to coax him to prescribe it more often.

It’s no surprise that many doctors object to having their prescribing information turned into a commodity. They consider it an invasion of their privacy and an intrusion into the doctor-patient relationship. Many state governments agree. Maine, New Hampshire, and Vermont place various restrictions on the use of prescribing information for marketing. Several other states are considering such legislation. Data-mining companies have challenged all three state laws. The case involving Vermont’s law—which prohibits the sale of a doctor’s prescribing history to drug companies unless the doctor grants permission—reached the Supreme Court.

The briefs submitted are instructive not only in their legal details—essentially, whether mining and selling drug prescription data counts as free speech—but also for the values that animate each side. Both agree that targeted drug marketing results in more prescriptions of promoted medications. Those arguing for the Vermont law cite many harms, however: increased health care costs and risks to both patient safety and patient privacy. Drug reps promote new, expensive medications whose adverse effects may still be unknown. They also often discuss unresearched off-label uses with doctors. And although the patient information sold by data-mining companies is encrypted, the brief from the New England Journal of Medicine, the American Medical Students Association, and other medical groups stated what has become painfully clear: “Rarely does a month go by without a revelation of a data breach.”

On the other hand, arguing against the Vermont law, the Pharmaceutical Research and Manufacturers of America warned, “without prescriber data there will be more sales calls to physicians that aren’t interested in the product.” The Chamber of Commerce said bluntly that restricting access to prescribing data would “directly impact . . . companies’ ability to monetize [data] and thus turn a profit.”

So one side is concerned about health care costs, patient safety, and doctor and patient privacy. The other, while pleading free speech, is mainly concerned about profits. In ethical terms, there’s really no contest. By comparison, the Toyota ads that appeared on my Gmail account after I queried local Toyota dealers now seem benign. But whether it’s about cars or drugs, electronic data of all kinds is growing, and with it the drive to mine it and turn...