The Biggest Data Myths of 2013

The biggest myth about “Big Data” users of the entire nation’s health information is that personal health data was acquired legally and ethically.

Just ask anyone you know if they ever agreed to the hidden use and sale of sensitive personal information about their minds and bodies by corporations or “research” businesses for analytics, sales, research or any other use. The answer is “no.”

Americans have very strong individual rights to health information privacy, i.e., to control the use of their most sensitive personal information. If US citizens have any “right to privacy,” that right has always applied to sensitive personal health information. This was very clear for our paper medical records and is embodied in the Hippocratic Oath as the requirement to obtain informed consent before disclosing patient information (with rare exceptions).

The IPO filing by IMS Health Holdings at the SEC exposed the vast number of hidden health data sellers and buyers. Buying, aggregating, and selling the nation’s health data is an “unfair and deceptive” trade practice. (Read more of Dr. Peel’s comments on the IMS filing here.)

Does the public know or expect that IMS (and the 100’s of thousands of other hidden health data mining companies) buys and aggregates sensitive “prescription and promotional” records, “electronic medical records,” “claims data,” and “social media” to create “comprehensive,” “longitudinal” health records on “400 million” patients? Or that IMS buys “proprietary data sourced from over 100,000 data suppliers covering over 780,000 data feeds globally”? Again, the answer is “no.”

Given the massive hidden theft, sale, and misuse of the nation’s health information how can any physician, hospital, or health data holder represent that our personal health data is private, secure, or confidential?

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Resolution of Disapproval in Supreme Court Decision in Sorrell v. IMS Health Case

Lawmaker, author of health privacy protections in economic recovery act, declares privacy rights of doctors, patients should trump commercial interests

WASHINGTON, D.C. – On Friday July 8, 2011, Congressman Edward J. Markey (D-Mass.), co-chairman of the Congressional Bi-Partisan Privacy Caucus and senior member of the House Energy and Commerce Committee, introduced H.Res. 343, a resolution expressing disapproval of the recent Supreme Court decision in Sorrell v. IMS Health. In its decision, the Court struck down a Vermont state law that banned the sale of doctors’ drug prescriptions records if the records are used for commercial purposes without the doctors’ permission.

Rep. Markey’s resolution states that the Court erred in applying free speech protections to a Vermont law that lawfully regulated a purely commercial interest. Before the Vermont law was enacted, data-mining companies would purchase information about doctors’ prescription drug information from pharmacies and then resell the data to pharmaceutical companies. The pharmaceutical companies could use the information – without the doctors’ consent – for the commercial purpose of targeting their sales messages and marketing more expensive, brand-name drugs to physicians.

“In this case, the Supreme Court tipped the scales of justice in favor of big drug companies at the expense of patients and their doctors,” said Rep. Markey. “The privacy of the doctor-patient relationship should outweigh the ability of pharmaceutical companies to mine data simply so they can market expensive drugs to providers and reap huge profits. States should be able to regulate pharmaceutical companies in a way that protects the privacy of their residents and prevents pharmaceutical companies from having undue influence on doctors’ prescribing habits.”

Dissenting in the Supreme Court’s 6-3 decision, Justice Stephen Breyer wrote that the Vermont state law in question “adversely affects expression in one, and only one way. It deprives pharmaceutical and data-mining companies of data…that could help pharmaceutical companies create better sales messages.” The dissent, which was joined by Justices Ruth Bader Ginsburg and Elena Kagan, stated that the Vermont statute is a “lawful governmental effort to regulate a commercial enterprise…The far stricter, specially ‘heightened’ First Amendment standards that the majority would apply to this instance of commercial regulation are out of place here.”

Dr. Deborah Peel, a national health privacy expert and founder of the non-profit Patient Privacy Rights, praised the Markey resolution. “With a Supreme Court that stands up for the interests of pharmaceutical companies, it’s reassuring to know that Congressman Markey is looking out for patients and doctors who value the privacy of their prescription drug information.”

Text of the resolution can be found HERE.