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American Morning

Will Our Records Stay Private When We Go to Our Doctor?

Aired July 08, 2002 - 07:06   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: Now on to a major question about medical privacy this morning. Most of us assume that when we go to our doctor, our records will stay private. Well, maybe you shouldn't assume that.

We are going to introduce you to a Florida woman, who received pills in the mail, Prozac pills. And she believes that her medical information was sold to marketers by her doctors. The woman is not only suing her doctors, but her pharmacy, a local hospital and the drug's manufacturer, Eli Lilly.

Brian Palmer spoke with her.

(BEGIN VIDEOTAPE)

BRIAN PALMER, CNN CORRESPONDENT (voice-over): These well- manicured hands belong to S.K., a 59-year-old Florida woman who doesn't want to be identified, but who has sued one of the world's largest drug companies for sending her pills, extended-release Prozac, she didn't ask for.

(on camera): What was your past experience with Prozac, and what did you think when you got this thing with your name on it?

UNIDENTIFIED FEMALE: Well, I took Prozac many years ago, and I had trouble sleeping, and I was very aggressive, which I shared with my doctor. I just couldn't figure out why anybody would be sending Prozac to me through the mail. I had not asked for it. I had not been on it. I couldn't understand it.

So I went to my doctor with everything, and put it on her desk and said, are you aware this is going out through the mail with your name attached to it?

PALMER (voice-over): Her doctor said she wasn't. S.K. alleges someone in her doctor's medical group in Boston or Walgreens Pharmacy released her medical information to drug company, Eli Lilly, so it could target her.

UNIDENTIFIED FEMALE: I was very mad, very angry, very upset. I actually tossed it down on the table, because I was kind of like disgusted, like this is what, you know, the marketing is coming to. And I just kind of tossed it, and then when I read the article in the newspaper, I thought, well, now, Walgreens is lying. You know, they do give out names, and they do send medication. And that's when I decided to act, you know, and I thought, this is not right.

PALMER: S.K.'s lawyer says it's marketing run amuck.

STEPHEN SHELLER, PLAINTIFF'S ATTORNEY: It isn't just sending the pills in the mail that's troubling to me. What's troubling to me is the greed factor that goes on in this situation. What you have here is encouraging people to use a drug that they don't need and probably should have never been even considered for.

PALMER (on camera): Eli Lilly has hit some hard times. It lost patent protection for Prozac last year. Generics then gobbled up the market, and Prozac sales dropped by more than 70 percent. Lilly's stock price tumbled, too. Prozac weekly, however, is still covered by a patent.

(voice-over): Eli Lilly says this is not a marketing initiative, and it issued the following statement: "Based on our current understanding of the Florida matter, what occurred was inconsistent with Lilly policy. While Lilly supports informing people about new treatment options and encouraging them to discuss these options with their doctor, what occurred in Florida appears to go beyond this."

Walgreens denies wrongdoing. CNN's attempts to reach S.K.'s Boston doctor were not successful. It's now up to a Florida court to determine who did what, and whether any laws were broken.

Brian Palmer, CNN, New York.

(END VIDEOTAPE)

ZAHN: And joining us now to help us figure this all out, adding his legal perspective to this case, CNN legal analyst, Jeffrey Toobin -- good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Good morning

ZAHN: Welcome back. All right. Let's talk about this lawsuit. It cites Walgreens, it cites the doctors, it cites Eli Lilly and a local hospital. Based on what you have learned from this piece and everything you have read in the newspapers, who is at fault here?

TOOBIN: Well, it seems...

ZAHN: And were laws broken?

TOOBIN: Well, it seems like the possibilities are the doctors without -- by prescribing these medicines without any sort of examination or consultation with the patients, there could be a malpractice case there. There could be, if the doctors were not involved -- and again, there is some murkiness in the facts here -- if the doctors were not involved, Walgreens could be violating deceptive trade practices or unauthorized practice of medicine, if they simply gave the drugs out without permission of the doctor. Those -- and Eli Lilly, the same thing.

ZAHN: According to the plaintiff, one of the doctors allegedly admitted to signing a blank letterhead to which Eli Lilly added text and delivered it to the drugstore.

TOOBIN: That's right. But also what appears to have happened is that the doctor simply wrote prescriptions. Walgreens' defense is, we were just filling prescriptions. The doctors gave us prescriptions for these, told us to send the drugs to S.K. and the other people. So Walgreens says it's not our fault. That may be true if it's simply the letter that they are signing, not the prescription. It's very -- it's a confusing set of facts, but the issue here is this kind of information is being sold.

ZAHN: What can we do about it? Or are we all vulnerable...

TOOBIN: I think many...

ZAHN: ... to what happened to this plaintiff in this case?

TOOBIN: Many of us assume that this material is a lot more private than it really is. I mean, you know, in the last 10 years, drug advertising has really taken off. I mean, anyone who watches CNN sees ads for Paxil, sees ads for Viagra all the time, and they always end, "Ask your doctor." Well, this seems to be the next logical step of instead of you initiating the process, you the patient, they hit you, the companies hit you with marketing material by buying it from pharmacists, by buying it from doctors. And that is what some state legislatures are trying to outlaw now, if it's not outlawed already. See, the law has not really caught up with the practice.

ZAHN: So wait, are you telling me...

TOOBIN: Yes.

ZAHN: ... that if you ever have gotten a prescription filled at a drugstore, that becomes part of the permanent record, and they may in turn will sell that to other drug companies?

TOOBIN: It has definitely happened in the past, and that's what a lot of state legislatures are very upset about. And what is unclear is whether that is illegal. Some states are trying to make it illegal now. But you know, they are catching up with the marketing techniques that are just going on all of the time.

ZAHN: Why should that be allowed to happen? I mean, is there any legal rationale now for saying it's just fine to do that?

TOOBIN: Well, if you go buy a car, Ford sells your information all of the time. They -- you know, if they want to market car washes to you, they will, you know, -- or car insurance, they will sell...

ZAHN: Yes, but the car can't kill me by, you know, popping a pill or swallowing it.

TOOBIN: Well, but if there is no law against it, you are a good market if you're a customer for a pharmacy. So I mean, that's how marketers think.

ZAHN: So what is your advice to consumers, the patients out there?

TOOBIN: Well, I think they -- it's really -- it's a political issue at this point in terms of what the laws prohibit and what they don't, whether you can get enforcement of laws on the books or laws should be changed to make sure this is illegal.

ZAHN: And you also have to...

TOOBIN: And don't...

ZAHN: ... trust your doctor.

TOOBIN: Well, and also don't take pills that have just arrived through the mail.

ZAHN: Well, that's what this woman said was the scary thing.

TOOBIN: Right.

ZAHN: That her grandchildren could have gotten their hands on these pills.

TOOBIN: Absolutely. I mean, certainly you shouldn't take anything that comes unsolicited in the mail. But whether it's illegal or not, that's an evolving issue that we are now following.

ZAHN: We will be counting on you for your analysis.

TOOBIN: OK.

ZAHN: Jeffrey Toobin, thanks so much for dropping by.

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