32 Cal. App. 5th 428
Cal. Ct. App. 5th2019Background
- The Medical Board (via Department of Consumer Affairs) opened an investigation after an anonymous complaint alleging Dr. Cohanshohet overprescribed narcotics and had a pharmacy relationship; the Board pulled the doctor’s CURES prescribing data (2014–2015).
- A Board medical consultant (Dr. Naqvi) identified five patients whose prescriptions produced high morphine-equivalent doses (MED) and/or risky benzodiazepine–opioid combinations and opined records were needed to determine if the standard of care was met.
- The five patients refused to sign releases; the Board served subpoenas duces tecum on Dr. Cohanshohet for those patients’ medical records; he refused, asserting patients’ privacy rights.
- The Board petitioned the superior court to compel production; declarations from the Board investigator and Dr. Naqvi supported the petition; Dr. Cohanshohet submitted contrary declarations including an expert (Dr. Berger) contesting reliance on CDC guidance and noting palliative/cancer-care exceptions.
- The superior court granted the petition; on appeal the court of appeal reviewed whether the Board showed the required good cause to invade patients’ medical-privacy rights and reversed, directing denial of the petition.
Issues
| Issue | Plaintiff's Argument (Board) | Defendant's Argument (Cohanshohet) | Held |
|---|---|---|---|
| Whether the Board showed good cause to compel production of nonconsenting patients’ medical records | CURES data + expert opinion that five patients received potentially excessive or dangerous controlled-substance regimens justify records to determine violations of Medical Practice Act | Records are highly private; Board gave only circumstantial/ conclusory evidence; many patients are in palliative/cancer care where higher doses may be appropriate | No — Board failed to show good cause; subpoenas enforcement reversed |
| Whether an anonymous complaint and CURES data alone supply sufficient factual basis for subpoenas | The anonymous complaint prompted review of CURES data and supports investigation when expert finds suspicious prescribing patterns | Anonymous complaint is weak; CURES data without context (diagnosis, treatment rationale) is insufficient | No — anonymous complaint and CURES data were not enough to establish good cause |
| Adequacy/competence of Board expert evidence to permit judicial assessment of good cause | Dr. Naqvi described drugs, MED thresholds, and opined five patients may have been overprescribed | Defense expert disputed application of CDC guidance and explained higher doses can be appropriate in pain/palliative care; Board expert did not address those contexts | Court found the Board’s expert declarations too conclusory and lacking facts to allow independent judicial weighing; inadequate to show likelihood records would reveal misconduct |
Key Cases Cited
- Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (Cal. 1994) (privacy balancing framework: protected interest, reasonable expectation, serious intrusion, countervailing interests, feasible alternatives)
- Wood v. Superior Court, 166 Cal.App.3d 1138 (Cal. Ct. App. 1985) (administrative subpoenas for medical records require evidentiary showing of good cause; bare suspicions insufficient)
- Board of Medical Quality Assurance v. Gherardini, 93 Cal.App.3d 669 (Cal. Ct. App. 1979) (medical-record subpoenas require factual showing of relevance/materiality to charge)
- Bearman v. Superior Court, 117 Cal.App.4th 463 (Cal. Ct. App. 2004) (anonymous or conclusory evidence insufficient to support subpoena for patient records)
- Cross v. Superior Court, 11 Cal.App.5th 305 (Cal. Ct. App. 2017) (contrasting authority: good cause found where expert showed specific patient risks, anomalous facts, and prior disciplinary history)
- Fett v. Medical Board of California, 245 Cal.App.4th 211 (Cal. Ct. App. 2016) (standard of review for subpoenas enforcement: de novo legal review; factual findings reviewed for substantial evidence)