In the ongoing tension between the regulatory oversight of medicine and patient privacy, two new appellate cases tackle the question of when the government’s interest on behalf of the public takes precedent.
According to the facts alleged in the first case, David R. Fett, MD v. Medical Board of California, the MBC received a complaint by an investigator at an electronic medical record clearinghouse alleging the investigator had reason to suspect that Dr. Fett had billed a health insurer for services not rendered, had misrepresented services, and falsified or altered documents.
When the Board’s own investigator of the complaint received a package of materials from the clearinghouse employee, she hired a physician consultant to review the medical documents. The consultant, Erich W. Pollak, MD, concluded that the ophthalmic plastic surgeon may have departed from the standard of care by failing to safeguard medical records, failing to obtain signed consent, operating without consent, failing to provide documentation requested by a third party carrier to justify billings made for services rendered, altering documents related to operations, and misrepresenting the complexity of procedures. According to Dr. Pollak, the complete records of the patients are required to actually determine if a violation of the standard of care occurred.
(In analyzing the balance between patient privacy and regulatory prerogatives, the Court of Appeal did not rule on the veracity of the complaint’s allegations against Dr. Fett.)
When a trial court judge upheld the Board’s subpoenas for the records of three patients, Dr. Fett appealed and claimed the Board lacked authority to invade his patients’ privacy. Dr. Fett also asserted that Dr. Pollak was not qualified to render expert opinions because he is not an ophthalmic plastic surgeon. In his appeal, the physician further argued the Board lacked good cause to proceed because it had relied on records disclosed by the clearinghouse in violation of California’s patient privacy laws.
On the threshold privacy issue, the Court of Appeal pointed out that “an individual’s right to privacy is not an absolute right; it may be outweighed by supervening public concerns.” Because of the state’s “most legitimate interest in the quality of health and medical care received by its citizens,” a patient’s medical records may be “relevant and material in the furtherance” of this purpose and “under some circumstances disclosure may permissibly be upheld.”
The appellate court considered Dr. Fett’s objection to the use of Dr. Pollak’s opinions, but supported the trial court judge’s decision to allow their use. The Court of Appeal quoted approvingly the lower court judge’s comment that “although some portions of Dr. Pollak’s declaration would have been stronger if supported by expertise in [Dr. Fett’s] medical specialty, much of his declaration focuses on alleged departures from the standard to care applicable to all surgeons. For instance, Dr. Pollak contends that [Dr. Fett] operated without complete written consents and failed to provide documentation to justify his billings to a third party carrier. This alleged misconduct is not specific to [Dr. Fett’s] medical specialty.”
In disposing with Dr. Fett’s argument that the Board is precluded from using the medical records sent by the private clearinghouse, the Court of Appeal said that even improperly obtained evidence may be used in administrative proceedings. The court noted that unlike California’s “exclusionary rule” that bars the products of illegal searches and seizures in criminal prosecutions, there is no such rule in administrative matters, such as Medical Board proceedings.
In finding the Medical Board had set forth enough details showing “good cause to believe” that Dr. Fett acted in a way that departs from the standard of care, the Court of Appeal ruled the subpoenas of patient records should be enforced.
Next month: A different outcome in a psychiatric case.
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com.