Even as the Medical Board of California (MBC) continues to examine the drug-prescription practices of physicians, the Board often has to convince a court of its right to examine patient records. The key element in whether the courts will permit an MBC request for patient records is whether the Board adequately demonstrates “good cause” for piercing a patient’s privacy.
In 2014, the MBC received an anonymous complaint about the prescription practices of Dr. Kamyer Cohanshohet, a pain management specialist. The MBC obtained a CURES report on Dr. Cohanshohet for a year’s period in 2014 and 2015 showing the physician prescribing Schedule II, III, and IV controlled substances. Using that information, MBC consultant Dr. Shaib Naqvi identified five patients at risk for over-prescription of opioids. When the MBC attempted to obtain the patients’ medical records, the patients declined to sign releases and Dr. Cohanshohet refused to comply with a subpoena, asserting his patients’ right to privacy.
In the superior court dispute over the subpoena, the MBC submitted a declaration by Dr. Naqvi in which he maintained his familiarity with the standard of medical practice in California and with the different classes of controlled substances. He further explained how a “morphine equivalent dosing” (MED) is used to evaluate different kinds of opioids and that a MED of greater than 100 mg per day “puts the patient at added risk for overdose and death.” The standard of care, Dr. Naqvi continued, requires the prescriber to inform the patient of potential risks and benefits of the drug and that the patient's informed consent includes being notified that death is a potential risk when opioid dosing exceeds 100 mg MED per day.
In the five patients noted in Dr. Naqvi’s declaration, three received prescriptions exceeding 100 mg MED; two others had prescriptions of between 60 to 75 mg MED. Dr. Naqvi concluded these patients may have received excessive opioids and explained that the records are necessary to determine whether Dr. Cohanshohet performed a proper examination, screening, and informed consent and whether he properly monitored the patients.
In opposing the subpoena, Dr. Cohanshohet submitted a declaration from Dr. Jack Berger. Dr. Berger agreed that physicians who prescribe controlled substances to treat pain are required to properly complete a medical history, perform a physical examination, diagnose the problem, inform the patient of risks, and write an appropriate treatment plan.
But Dr. Berger’s declaration challenged Dr. Naqvi’s reliance on opioid prescription guidelines from the Centers for Disease Control and Prevention as mere recommendations for primary care physicians who are prescribing opioids for chronic pain outside of active cancer treatment, palliative care, and end-of-life care. (The court also noted the guidelines were not in effect when the patients in question were treated.) After explaining that a dosage greater than 100 mg MED does not automatically violate the standard of care — so long as the patient’s informed consent was obtained – Berger stated there was no reason to suspect that Dr. Cohanshohet failed to obtain informed consent or review the risks and benefits of higher dosage therapy with each of the five patients.
The trial court backed the MBC’s subpoena, but on appeal by Dr. Cohanshohet, the Los Angeles-based Court of Appeal found that the Board did not meet its burden in light of the patients’ right to privacy.
On that right to privacy, the Court of Appeal referred to a quote from another court that, “the state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP.”
The court in Grafilo v. Cohanshohet went on to explain the requirement for the state to show “good cause” when it seeks to invade an individual’s privacy rights through an administrative subpoena seeking his or her medical records. “Good cause calls for a factual exposition of a reasonable ground for the sought order.”
In finding that the MBC failed to meet that burden, the Court of Appeal leaned heavily on Dr. Cohanshohet’s pain management practice.
“There are no facts suggesting Dr. Cohanshohet was negligent in treating his patients or that he prescribed controlled substances without meeting the standard of care. Given that Dr. Cohanshohet is a pain management specialist who sometimes treats patients seeking active cancer treatment, palliative care, and end-of-life care, it is reasonable to assume at least some of his patients would require treatment for pain that would exceed the recommended dose.
The appellate court distinguished its ruling from a 2017 opinion that allowed the MBC to proceed with a request for records of three patients of a psychiatrist. The court said that in the psychiatrist’s records dispute, the supporting evidence provided much greater detail as to why stimulants prescribed to three post-menopausal patients may have put them at increased risk for coronary artery disease.
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.