to this posting
Outcome in Sorrell v. IMS Health Fairly Clear After SCOTUS Oral Argument
Given the oral argument on this case, our commentary below is moot.
SORRELL v. IMS HEALTH, INC. (10-779)
U.S. Supreme Court
Oral Argument, April 26, 2011 (upcoming today)
This is such a simple case that it will demonstrate quite clearly how the various Supreme Court factions understand "the law" (or "if" they understand the law).
The primary question -- for us -- is already the question of the question.
FIRST, we would ask: What are a patient's rights to his or her personal medical data? For us, that already decides the case. The PATIENT must consent to use of his or her medical data as desired. Otherwise, there is violation of privacy.
SECOND, we would ask: What are a physician's rights to the personal medical data of his patients? For us, that already decides the case. The PATIENT must consent to a physician's use of his or her medical data as desired. Otherwise, there is a violation of privacy and a breach of a confidential relationship.
THIRD, we would ask: What are a pharmacist's rights to the personal medical data of a physician's patients insofar as this is obtained via prescriptions that are filled, recorded and maintained in order to fulfill government regulations? The PATIENT must consent to a physician's use of his or her medical data as desired and the PHYSICIAN must consent to a pharmacist's use of the physician's records regarding that patient.
FOURTH, and beyond that, we would then define the subsequent question broadly as follows: can any non-governmental entity without consent of the affected party disclose or commercially sell or otherwise exploit identifiable personal information about that party which has come into its hands solely because of its fulfillment of a governmental regulation without which the disclosure and sale of such data without consent would otherwise be illegal?
FIFTH, an ancillary question here would also be whether the level of identifiable detail of information sold is relevant. For example, the U.S. government sells Bureau of Census information which has been generalized and does not reveal detailed identifiable personal information about anyone. In the instant case, it is in fact the prescriber-identifiable detail of the information which is of greatest value to the pharmaceutical buyer of privileged personal medical data.
BUT WHAT WILL THE COURT FRAME AS THE QUESTION?
To our astonishment, the legal battle as it has been submitted to the Supreme Court frames the question of law quite differently, in what must be the most bizarre "understanding" of free speech that we have ever seen.
"10-779 SORRELL V. IMS HEALTH INC.
DECISION BELOW: 2010 WL 4723183
LOWER COURT CASE NUMBER: 09-1913-cv, 09-2056-cvThat the PATIENT'S rights of privacy are being violated is not even mentioned. Incredible.
Prescription drug records, which contain information about patients, doctors, and medical treatment, exist because of federal and state regulation in this highly regulated field. This case is about information from prescription records known as "prescriber-identifiable data." Such data identifies the doctor or other prescriber, links the doctor to a particular prescription, and reveals other details about that prescription. Pharmacies sell this information to data mining companies, and the data miners aggregate and package the data for use as a marketing tool by pharmaceutical manufacturers. The law at issue in this case, Vermont's Prescription Confidentiality Law, affords prescribers the right to consent before information linking them to prescriptions for particular drugs can be sold or used for marketing. The Second Circuit held that Vermont's law violates the First Amendment, a holding that conflicts with two recent decisions of the First Circuit upholding similar laws. The question presented is: Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment.
CERT. GRANTED 1/7/2011"
His or her personal medical data are apparently seen as "legally appropriated" either by his or her physician, pharmacist or drug company, to do with as they please.
In the instant case, it is presumed by one party that the PHYSICIAN owns the patient's medical records and history and can dispense with them as he pleases, depending only on whether the physician consents to the pharmacist's sale of the records to drug companies or not. The patient has no say in the matter.
The opposing side presumes that both the patient and physician have given up their rights to the data once the pharmacist fulfills a prescription and that now the PHARMACIST can do with the PATIENT'S medical data what he or she wishes, including selling that data to the highest bidder.
Really, sometimes one has the impression that law in America has totally failed.
We would find that ANY use of a patient's medical data beyond diagnosis and treatment by the physician -- who is sworn to protection of the confidential relationship that exists between them, similar to the physician-patient privilege -- is a violation of the patient's rights.
FIRST, the patient has to give his consent.
SECOND, the physician has to give his consent.
THIRD, the pharmacist has to give his consent -- and that has been denied as a possibility by the Vermont law if the physician says no.
Only if the physician says yes -- and only if the patient says yes - should otherwise personally privileged identifiable medical data be given to anyone.
So, we are watching this case with great interest to see how or if it separates the wheat from the chaff in the persons on the bench of the U.S. Supreme Court.