Explaining California’s “compelling interest” in regulating prescriptions of controlled substances, the Court of Appeal has found that a Medical Board subpoena of a psychiatrist’s medical records may proceed.
The psychiatrist had objected to the subpoena based on the physician-patient privilege and her patients' constitutional right to privacy.
Acting on a “consumer complaint” that the psychiatrist, Dr. C, was overprescribing psychotropic medications, the Medical Board reviewed prescriptions written by the physician over the prior three years as recorded in the Controlled Substance Utilization Review and Evaluation System (CURES) database. A Medical Board investigator hired an internal medicine physician to review the CURES report in an effort to identify people for whom Dr. C may have been overprescribing controlled substances. That internist identified three people who may have received prescriptions in a manner that appeared inconsistent with the standard of care. After unsuccessfully attempting to obtain those patients’ consent for medical records, the Board issued three subpoenas to Dr. C, demanding medical records on the patients during time periods that coincided with
the consulting internist’s concerns over prescriptions.
On a petition to the Superior Court, the Board filed a declaration of its internist consultant, who opined that the prescription patterns for the three patients, “in the absence of any other information, appear to represent concerning departures from the standard of care” for prescribing the central nervous system stimulants at issue, which have “a high potential for abuse.”
In addition to her arguments that the physician- and psychotherapist-patient privilege and her patients’ right to privacy prevented her from releasing the records, Dr. C took issue with the Board internist’s familiarity with the practices of psychiatrists in utilizing the drugs in question.
After a hearing, the Superior Court judge found that the psychotherapist-patient privilege did not protect the subpoenaed records because Business Code Section 2225 abrogates the privilege for purposes of Board disciplinary investigations of a physician. As to the patients’ right to privacy, the court said that the “right is not absolute, and must be balanced against other important interests.” The judge said the opinions of the Board’s internist consultant provided “good cause” to compel disclosure of specified records.
On an appeal by Dr. C, the Second District Court of Appeal in [C] v. Superior Court of Los Angeles, agreed with the lower court that the psychotherapist-patient privilege may yield to California’s statutes regarding disciplinary investigations. On the issue of a patient’s constitutional right to privacy, however, the appellate court said that a stricter test must apply than the “good cause” requirement applied by the lower court judge.
Having earlier noted that psychoanalysis and psychotherapy depend on the “fullest revelation of the most intimate and embarrassing details of a patient’s life,” the court cited direction from the state Supreme Court showing that a “compelling interest” was necessary over a general “balancing test” to overcome a patient’s privacy rights.
In that regard, the Court of Appeal found that though Dr. C disputed the Board internist-consultant’s competency to opine on a psychiatrist’s use of medications as a predicate for the state’s “compelling interest,” there was a sufficient basis to move forward. The court said that “while a declaration from a psychiatrist may have been more persuasive,” the internist’s opinions “on the nature and properties of the drugs prescribed, their potential complications, and the precautions that should be taken by a physician who prescribes the medications . . . are all topics sufficiently within the training and expertise of a physician with a specialty of internal medicine.”
Concluding the state demonstrated a compelling interest in a matter involving prescriptions of controlled substances, the appellate court directed that “relevant and material” medical records of Dr. C may be pursued by the Medical Board in its investigation.
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com The information in this publication should not be considered legal or medical advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney..