Does U.S. Supreme Court ruling put patient privacy at risk?
Montpelier, Vermont - June 24, 2011
A trip to the doctor's office may not be as private as you think.
"Why should a drug company be able to buy information about the prescriptions that a doctor thinks are good for me?" asked Rep. Mark Larson, D-Burlington.
Larson chairs the House health care committee. He says he's disappointed that the U.S. Supreme Court struck down a Vermont law that would have forbidden drug companies from gathering information on doctors' prescribing habits. The state argues that companies use the info to push doctors to use brand name over generic prescription drugs.
"From the health care cost containment aspect this is a real setback," Larson said.
Republicans say it's also a setback for Vermont. They've been an outspoken opponent to the Prescription Confidentiality Law.
"There was a lot of discussion on the House floor about the legality of it. About the constitutionality of the law itself," said Pat McDonald, the chair of the Vermont Republican Party.
In a 6-3 decision, the high court ruled that the Vermont law violates the free speech rights of pharmaceutical companies and data miners. It went on to say the law lacked coherence and careful crafting.
"The court was very critical of the state for saying we don't like the message of the pharmaceutical companies, we don't like their costs, and so we're going to censor them but nobody else," said Cheryl Hanna of the Vermont Law School.
Vermont has now argued two major cases before the U.S. Supreme Court in the last five years involving the First Amendment, capping campaign finances and now this.
"In both of those cases the Legislature took bold steps. They passed laws that were really pushing the envelope," Hanna said.
Legal analyst Cheryl Hannah explains in the face of an increasingly conservative court it was risky for Vermont to pass such a progressive law.
"This was a very good example of the Legislature trying to respond to new technologies by protecting privacy, on the other hand, when you are doing that you have to pay really close attention to the constitution," Hanna said.
In this case Vermont lost that gamble and could now be on the hook to pay millions in legal fees.