245 Cal. App. 4th 211
Cal. Ct. App.2016Background
- The Medical Board of California (Board) opened an investigation after OptumInsight investigator Stacey Wagley alleged Dr. David R. Fett submitted billing and documentation inconsistent with services rendered and provided incomplete/altered records to the insurer.
- The Board’s consultant, Dr. Erich W. Pollak, reviewed the partial records and concluded there was good cause to suspect departures from the standard of care for three named patients (e.g., altered documents, missing/witnessed consents, misrepresented procedure complexity).
- The Board served subpoenas duces tecum on Dr. Fett in May 2013 seeking complete certified records for the three patients; each patient received notice and some patients objected to release.
- Dr. Fett petitioned to quash/protect; the Board filed to compel. The superior court granted the Board’s petition in part, narrowing the time frames for the requested records, and denied Fett’s petitions.
- Fett appealed, arguing lack of good cause, improper redisclosure of patient records under Civil Code §56.26, inadequate balancing of privacy interests, expert insufficiency, and overbreadth of the subpoena.
Issues
| Issue | Fett's Argument | Board's Argument | Held |
|---|---|---|---|
| Good cause to invade patient medical privacy | OptumInsight’s complaint was insufficient; redisclosed records were unreliable; expert (Pollak) unqualified | Detailed billing/documentation irregularities and expert opinion established specific factual basis for suspicion of departures from standard of care | Substantial evidence supports good cause; trial court did not err in ordering limited compliance |
| Expert qualification | Pollak not an ophthalmic plastic surgeon; opinions therefore unreliable | Pollak is a licensed physician with relevant experience; many issues were general to surgical practice | Trial court did not abuse discretion; Pollak qualified to opine on the issues raised |
| Effect of OptumInsight’s alleged §56.26 violation | Redisclosure violated statute and thus forecloses Board use of records to commence investigation | Even if redisclosure violated §56.26, statute provides civil/criminal remedies for violation but does not bar Board from using such information to investigate | Court rejected a categorical bar; improperly disclosed records do not preclude Board investigation or use in administrative inquiry |
| Overbreadth / scope of subpoena | Subpoena for complete records is impermissibly broad; Wood/Bearman require “root facts” and narrower demands | Board provided specific dates, instances, and an expert showing why complete records for the limited timeframes were needed | Court found subpoena appropriately narrowed by time limits and not overbroad given allegations of alteration/destruction of records |
Key Cases Cited
- Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669 (discusses privacy protection for medical records and that “good cause” requires factual showing)
- Wood v. Superior Court, 166 Cal.App.3d 1138 (omnibus demands for full medical records may be unjustified absent factual foundation)
- Bearman v. Superior Court, 117 Cal.App.4th 463 (Board failed to show facts sufficient to invade patient medical privacy)
- Whitney v. Montegut, 222 Cal.App.4th 906 (specific prescribing/billing irregularities plus expert support can establish good cause)
- Dept. of Transportation v. State Personnel Bd., 178 Cal.App.4th 568 (exclusionary rule inapplicable in civil disciplinary/administrative proceedings)
- Pating v. Board of Medical Quality Assurance, 130 Cal.App.3d 608 (exclusionary rule generally inapplicable to civil administrative proceedings)
- Pillsbury, Madison & Sutro v. Schectman, 55 Cal.App.4th 1279 (self-help discovery and unauthorized copying of documents may be enjoined)
- Evans v. Ohanesian, 39 Cal.App.3d 121 (trial court discretion governs qualification of medical experts)