Your Medical Record is Likely for Sale, Doctors Warn

TUCSON, Ariz., May 4, 2011 /PRNewswire-USNewswire/ -- On April 26, the U.S. Supreme Court heard a case (Sorrell v. IMS Health) concerning the sale of patients' prescription records by data mining companies. In challenging a Vermont statute that limits the sale of data for marketing purposes, IMS Health argues that there is a First Amendment right to harvest and sell medical records data.

With all the "privacy notices" they receive, and frequent references to "HIPAA" (the Heath Insurance Portability and Accountability Act), patients may assume that the federal government is protecting their privacy. This was never true, and recent health reform laws do even more to accomplish the government's goal of having all medical records in one vast "interoperable" data base.

The government's purpose is to "regulate" (control) medical care, but many companies plan to profit handsomely from a "public-private partnership" by mining information from medical records.

In a friend-of-the-court brief supporting the state of Vermont, the Association of American Physicians and Surgeons (AAPS) argues that data mining is not speech, but rather conduct. It requires "heavy lifting" to analyze data and extract useful information. The right to profit from such activity is not protected by the First Amendment.

The data mining exposes patients to substantial risk of compromising their privacy, despite assurances that patient identifiers are removed. Concerns about privacy breaches may cause patients to withhold crucial information from physicians, or postpone needed medical treatment. (http://www.aapsonline.org/index.php/article/sorrell_v._ims_-_aaps_files_amicus_brief_to_protect_privacy_of_presciption_/)

AAPS is the only national physicians' organization to file a brief in Sorrell. The American Medical Association (AMA) does not have an official position. It does, however, have a big stake in the outcome. In 2009, the AMA took in $47.5 million from the sale of database products, including the physician master file, which makes it possible to link a prescription back to the doctor who wrote it, according to Kaiser Health News, Apr 26, 2011 (www.kaiserhealthnews.org/Daily-Report.aspx?reportdate=MM-DD-YYYY).

The AMA and state and local medical organizations are helping physicians meet government requirements so that they can receive Stimulus funds to purchase interoperable medical records systems. If they "share" their patients' information with the government and its "partners," doctors will get slightly higher Medicare payments, notes AAPS executive director Jane M. Orient, M.D.

"It's like paying doctors to compromise patient confidentiality," she said.

The Vermont statute has an "opt-in" requirement for entering patient data into the system: Patients have to actively consent to it. Organized medicine, along with pharmaceutical companies, clinical laboratories, information technology suppliers, and other stakeholders, lobbies hard for "opt out" provisions, in which savvy patients have to actively deny consent in order to keep their data out of the system.

"Patients might not recognize the significance of the presumed consent to sell their data, or they might fear incurring the disfavor of their physician by insisting on their rights," Orient warned. "And once information is in the system, there's no reliable way to get it all out."

AAPS (www.aapsonline.org) is a national organization of physicians in all specialties, founded in 1943 to protect the sanctity of the patient-physician relationship. It filed an independent case challenging the health reform law on March 26, 2010 (www.aapsonline.org/hhslawsuit).

SOURCE Association of American Physicians and Surgeons (AAPS)

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