11/23/2011
A GableGotwals attorney warned that hospitals and doctors could face monumental changes in the way they deal with affirmative action rules, patient privacy guidelines and supervised care contracts. This was revealed by David McKinney during the 107th annual meeting of the Oklahoma Bar Association.
McKinney talked about those concerns, along with several other potential upsetting changes affecting the health care industry, during a report in Tulsa at the Hyatt Regency Hotel.
Referring to the lawsuit, Vermont, Sorrel v. IMS Health Inc, which developed from Vermont, McKinney said, “The one that really got my attention is the Sorrel case. This is a United States Supreme Court case authored by Justice (Anthony) Kennedy, who I think correctly fancies himself as the court’s premier expert on the First Amendment.”
McKinney, who drafted a paper for the OBA along with Jordon Edwards, said that the case evolved from a Vermont law stopping all drugstores from selling information on how doctors prescribe medicines to their customers.
McKinney also said, “Vermont didn’t want the drug companies going in and saying, ‘Dr. Edwards, why aren’t you prescribing Ambien? Why are you prescribing this low-cost sleep aid instead of our high cost Ambien?’”
However, although the Supreme Court observed considerable state interests in preventing such sales, like physician confidentiality or preserving medical privacy, or fundamental public health enhancement and a likely cost containment, McKinney said that the court sided on concerns rather than information discrimination.
He said, “It held that since there were exceptions to the rule for research, giving the information away and certain other activities, this was a content-based discrimination against those who wanted to sell the doctors’ information for a profit and that was a violation of free speech.”
