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A Victory for Privacy: California Senate Rejects Bill to Allow Drug Marketing Firms Access to Patient Medical Records Without Consent

By Zack Kaldveer
Consumer Federation of California

The California Senate rejected a bill this week by a vote of 17 to 17 (21 needed to “pass”) that would have allowed the sharing of a patient's confidential medical information regarding prescription drugs among a pharmacy, third party corporations and pharmaceutical companies. The bill was granted a second chance to pass the Senate next week.

The Consumer Federation of California opposed SB 1096 (Calderon) because it raised significant privacy and health care concerns for patients. The bill would have created an exception to California's Medical Information Act, and allow sharing of confidential patient drug prescription information without a patient's consent. The bill's main backer, Adheris Inc., is a subsidiary of inVentiv Health Inc., a drug marketing company.

The California Constitution and the people of our state won a temporary victory Thursday.

If the drug marketing companies had their way, your private medical prescriptions would have become commodities to be traded and sold on the open market for the purpose of increasing corporate profit, not improving public health."

Under SB 1096, drug stores would provide confidential patient prescription information to third party businesses. The third party would prepare mailings to patients that would have the appearance of coming from the pharmacy. These third party marketing corporations would, in turn provide patient information to, and receive payment from, pharmaceutical drug manufacturers to send the mailings, ostensibly to remind patients to take their medications or to renew their prescriptions.

Consumer rights and privacy protection groups argued that this type of privacy invasion should not occur without the consent of the patient. Under California law, pharmacists counsel patients on prescription drugs at the point of purchase. It would be a simple matter for the pharmacist to ask the patient if he or she wants to opt in to receive reminder notices as part of the counseling.

Drug companies are interested in acquiring every bit of personally identifiable information about patients in order to market their products directly to patients. The bill does not require the third party mailer to remove or encrypt personally identifiable patient information that it shares with the pharmaceutical company.

SB 1096 would be an unprecedented intrusion by drug companies into the physician - patient relationship and a blatant violation of an individual’s right to control his or her personal medical information. A person's doctor - not a third party marketing company - is the best source for informing a patient about how to manage his or her health condition.

The bill would allow a third party to send reminder mailings that may be in direct contradiction to a physician's recommended course of treatment. For example, if a patient begins to take a medication and experiences an adverse reaction, the patient might discuss the problem with the prescribing physician, and an alternative course of treatment may be developed. Unaware of this change in treatment, the pharmacy has communicated to the third party mailer that a patient is receiving a medication. The drug company that manufactures the medication then prepares mailings to remind the patient to take his or her medication, and to renew the prescription.

These mailings are designed to look as if they came from the pharmacy. The patient is now receiving contradictory instructions from two trusted sources, the doctor and the pharmacy. Senior citizens have the highest incidence of prescription drug use, and some may be confused by these conflicting directives. This kind of direct interference in the doctor - patient relationship is potentially dangerous to patient health. Yet the bill does not include any penalties for drug companies that engage through intermediaries in these communications with patients in contradiction to a doctor's recommended course of treatment.

The Consumer Federation of California urged the state senate to continue its opposition to the bill unless a patient's informed consent is required prior to the transfer of private medical information.

Zack Kaldveer works for the Consumer Federation of California, http://www.consumercal.org/ a non-profit advocacy organization. Since 1960 CFC has testified before the California legislature on dozens of bills that affect millions of consumers. CFC also appears before state agencies in support of consumer regulations.

Zack Kaldveer works for the Consumer Federation of California, a non-profit advocacy organization. Since 1960 CFC has testified before the California legislature on dozens of bills that affect millions of consumers. CFC also appears before state agencies in support of consumer regulations.

Posted on May 24, 2008

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