ALISA CROSS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; AWET KIDANE, DIRECTOR, DEPARTMENT OF CONSUMER AFFAIRS, et al., Real Parties in Interest.
No. B277600
Second Dist., Div. Five
May 1, 2017
8 Cal. App. 5th 305
Baranov & Wittenberg and Gary Wittenberg for Petitioner.
No appearance for Respondent.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gloria L. Castro, Assistant Attorney General, Judith T. Alvarado and Christine R. Friar, Deputy Attorneys General, for Real Parties in Interest.
OPINION
BAKER, J.—Alisa Cross (petitioner) is a physician, one who specializes exclusively in psychiatry. The Department of Consumer Affairs (Department), the governmental agency that houses the Medical Board of California (Board), served petitioner with subpoenas to further its investigation into whether she improperly prescribed controlled substances to three people who are ostensibly her patients. Petitioner refused to produce the subpoenaed medical records, citing the psychotherapist-patient privilege and the patients’ constitutional right to privacy. The Department then filed a petition to compel compliance with the subpoenas, which the trial court granted—reasoning that a provision of the Medical Practice Act (
I
A
The Board is a creature of statute. (
The Director of the Department is authorized to investigate all matters under the Department‘s jurisdiction, and to issue subpoenas in furtherance of such investigations. (
In May 2014, the Board received a “consumer complaint” alleging petitioner, a Board licensed physician since 1995, was overprescribing psychotropic medication.2 Staff in the Board‘s consumer complaint unit obtained a controlled substance utilization review and evaluation system (CURES) report that listed the schedule II-IV controlled substance prescriptions written by petitioner over the prior three years, as well as the patients for whom the prescriptions were written.3 A consultant working with the Board‘s complaint unit recommended further investigation, and the matter was referred to Department Investigator Ellen Coleman.
Investigator Coleman asked Dr. Cheryl Gray to review the CURES report in an effort to identify people for whom petitioner may have been overprescribing controlled substances. Dr. Gray is a licensed physician who is board certified in internal medicine and employed by the Department as a medical consultant. Because one of her duties is to review questionable medical and surgical practices by physicians licensed by the Board, she is responsible for maintaining familiarity with the standard of medical practice in California.
Dr. Gray identified three individuals listed in the CURES report as people to whom petitioner may have prescribed controlled substances in a manner that appeared to be inconsistent with the standard of care: M.L., L.R., and J.M.B. All three patients were prescribed central nervous system stimulants, which are schedule II controlled substances—drugs that have a high potential for abuse that may lead to severe psychological or physical dependence.
Patient M.L., an adult female, received 120 tablets of 20 milligram (mg) Adderall each month from June 22, 2013, to June 11, 2014. Adderall, an amphetamine salt combination drug, is predominantly used to treat attention deficit hyperactivity disorder (ADHD) and narcolepsy. In Dr. Gray‘s opinion, the dispensation reflected in the CURES report appeared to suggest M.L. took four Adderall tablets per day, which would mean a daily dose of 80 mg of the drug. Dr. Gray consulted multiple prescription drug reference sources, including the Physician‘s Desk Reference, that indicated this 80 mg amount
Petitioner prescribed patient L.R., also an adult female, 120 tablets of 30 mg Adderall each month from March 1, 2012, to July 27, 2012. Dr. Gray believed this appeared to indicate L.R. took four tablets per day, or a total of 120 mg daily. Dr. Gray opined this daily dosage level was three times the total recommended daily dosage of Adderall for treatment of ADHD and in excess of the recommended maximum daily dosage for treatment of narcolepsy.
J.M.B., the third patient identified by Dr. Gray from the CURES report, received 60 tablets of 20 mg Adderall each month from April 1, 2013, to June 27, 2013. Dr. Gray believed this appeared to indicate J.M.B., also an adult female, took two tablets a day, which equaled the maximum recommended daily dosage for treating ADHD (and was less than the maximum recommended daily dosage for narcolepsy). However, the CURES report also indicated petitioner prescribed 30 capsules of 40 mg Vyvanse for J.M.B. during the same time period. Vyvanse is also a central nervous system stimulant, one that is considered “longer acting.” Dr. Gray believed the Vyvanse prescription data indicated J.M.B. took 40 mg of the drug on a daily basis, in addition to the Adderall tablets. It was unclear to Dr. Gray why Vyvanse had been prescribed because it was not indicated for use in treating narcolepsy.
Investigator Coleman mailed forms to each of the three patients that, if signed, would authorize the Board to obtain their medical and psychiatric records from petitioner for use in the Board‘s investigation. The correspondence from Investigator Coleman further notified the patients that if the Board did not receive executed releases for the medical records, the Board would subpoena the records. Investigator Coleman received no response from L.R. and J.M.B. Investigator Coleman also received no returned authorization from M.L., but Investigator Coleman did reach her by phone. According to Investigator Coleman, M.L. said she had never been treated by petitioner.
The Department thereafter issued three subpoenas for the medical records of M.L., L.R., and J.M.B. The subpoenas demanded records pertaining to the identical time periods Dr. Gray identified in the CURES report as being of interest, i.e., for approximately one year for M.L.; for almost five months for L.R.; and for almost three months for J.M.B. The subpoenas were drafted to require production of “the complete medical record” for the patients during these time periods. According to the terms of the subpoenas, the “complete
Investigator Coleman served the subpoenas on petitioner,4 and petitioner, through counsel, declined to produce any of the subpoenaed records. Petitioner informed Investigator Coleman she had contacted both M.L. and J.M.B., both of whom told petitioner they did not consent to their records being released to the Board. Without either M.L. or J.M.B.‘s consent, and having been unable to reach L.R., petitioner took the position she was unable to release the subpoenaed records in light of the physician-patient and psychotherapist-patient privileges.
C
The Department filed a petition in the superior court to compel petitioner‘s compliance with the investigative subpoenas. The petition averred the medical records of the three patients were “essential” to the Board‘s ability to properly assess whether petitioner‘s treatment of the patients accorded with medical standards of care, and that without the subpoenaed records the Board “cannot fulfill its monitoring responsibilities of public protection, as mandated by California law.” The Department‘s petition was supported by declarations from Investigator Coleman and Dr. Gray.
Dr. Gray opined the prescription patterns for M.L., L.R., and J.M.B., “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.” Dr. Gray noted that the stimulants prescribed had been associated with adverse health effects, including “sudden death, stroke and myocardial infarction in adults.” Dr. Gray‘s opinion that petitioner may have violated the Medical Practice Act was also influenced by her review of records indicating petitioner had been the subject of a prior disciplinary proceeding in Texas.5
In Dr. Gray‘s opinion, any circumstances or conditions that would require dosages or quantities of the prescribed stimulants outside the customary range should be documented by the prescribing physician. Dr. Gray also explained other steps a physician must take, consistent with the standard of care, when prescribing the medications: “Prior to prescribing [these drugs] to an adult, a targeted cardiac history looking for previously diagnosed cardiac disease, any history of palpitations, syncope (fainting), or any other serious cardiac structural or rhythm disorder, must be done. The prescriber must also determine if the patient has a history of glaucoma, hyperthyroidism or moderate to severe hypertension as these conditions are contraindications for the use of [central nervous system] stimulant medications. [¶] Once the [central nervous system] stimulant medication is prescribed, the clinician must regularly assess the patient‘s blood pressure and pulse[,] since this class of drug is known to increase both, and monitor for signs/symptoms of peripheral vasculopathy.”
Dr. Gray believed the three patients in question, all women who were likely postmenopausal, may be at increased risk for coronary artery disease complications, which could be exacerbated by use of the prescribed stimulants. According to Dr. Gray, a review of the patients’ medical records “is necessary to confirm that an appropriate examination/screening was done before prescribing this medication regimen and also to determine whether regular assessments of the efficacy and effects of the treatment regimen were not only conducted but documented and that the appropriate monitoring measures were performed.”
Petitioner opposed the Department‘s request for an order to compel compliance with the subpoenas. The thrust of the opposition was twofold: first, that the subpoenaed records were protected by the psychotherapist-patient privilege, and second, even if the privilege did not apply, the Department had shown no good cause that would overcome the patients’ constitutional right to privacy in their medical records.
With her opposition, petitioner submitted her own declaration. She stated she contacted M.L. and J.M.B., both of whom instructed her not to disclose their records to the Board and to assert the psychotherapist-patient privilege on their behalf; petitioner had been unable to reach L.R. but believed she had an ethical and legal obligation to assert the privilege on her behalf as well.
After hearing extensive argument from counsel, the trial court issued an order granting in part the petition to enforce the administrative subpoenas. The court concluded the psychotherapist-patient privilege did not protect the subpoenaed records because
Petitioner thereafter filed a writ petition in this court seeking reversal of trial court‘s decision to order compliance with the subpoenas. Believing the issues presented by the petition warranted our consideration, we issued an order to show cause.
II
This is a case in two parts. We hold, first, that the psychotherapist-patient privilege does not protect the subpoenaed records from disclosure to the Department.
Here, the state has a compelling interest in investigating excessive or otherwise improper prescribing of controlled substances, and Dr. Gray‘s declaration establishes most of the records demanded by the subpoena are relevant and material to that investigation. But the relevant and material standard is by no means toothless. Further narrowing of the Department‘s subpoenas—specifically, elimination of a “catch-all” category of materials and related “including but not limited to” language—is required to comport with the weighty privacy interests at stake.
A
The question of whether the psychotherapist-patient privilege bars disclosure of the subpoenaed records is a legal one, requiring us to analyze how
1
In May 1965, then-Governor Pat Brown approved the Cobey-Song Evidence Act, which enacted California‘s Evidence Code. (Stats. 1965, ch. 299, §§ 1, 2, p. 1297.) As enacted, the Evidence Code included two articles that are of interest to us in this proceeding: one that codified a physician-patient privilege and another that codified a psychotherapist-patient privilege. (Stats. 1965, ch. 299, § 2, pp. 1297, 1329–1333.) These two privileges remain part of the Evidence Code today.
The very next article of the Evidence Code, article 7, is entitled “Psychotherapist-patient Privilege.”
In July 1965, roughly two months after approving the bill that enacted the statutory privileges we have just discussed, then-Governor Brown approved an act amending certain provisions of the Business and Professions Code pertaining to the Board‘s licensing and disciplinary functions. (Stats. 1965, ch. 1458, p. 3413.) Section 7 of this act amended former section 2379 of the Business and Professions Code. That statute deemed the willful betraying of a “professional secret” by a physician to be unprofessional conduct, and the July 1965 amendment added language stating “[n]either this section nor any other provision of law making communication between a physician and surgeon and his patient a privileged communication shall apply to investigations or proceedings conducted under this act.” (Stats. 1965, ch. 1458, § 7, p. 3415; see Stats. 1937, ch. 399, p. 1274; Stats. 1937, ch. 414, § 3, p. 1377.)
2
There really is no dispute that the records subpoenaed by the Department are records described by the psychotherapist-patient privilege provisions of the Evidence Code. And our Supreme Court has observed “privilege is a legislative creation, which courts have no power to limit by recognizing implied exceptions.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739.) That means the subpoenaed records are privileged unless
So understood, the records the Department seeks from petitioner are not privileged from disclosure. Under
First, petitioner is unquestionably a physician—that she specializes exclusively in psychiatry does not make her any less of a medical doctor; the designations “physician” and “psychiatrist” are not mutually exclusive. Second, it is undisputed the subpoenas were issued in connection with a Medical Practice Act investigation. And third, there are indeed laws that would make petitioner‘s communications with the three individuals named in the subpoenas privileged—the Evidence Code provisions concerning the physician-patient privilege are one group of such laws, but so are the Evidence Code statutes that govern the psychotherapist-patient privilege. (
Our reading of
Petitioner argues, however, that
It is well established that a statute enacted later in time controls over an earlier-enacted statute, and it is equally well established that a specific statute prevails over a statute that is more general. (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 946, 960–961 [more specific and later-enacted long-term care statute properly construed as a limited exception to general rule of patient confidentiality set forth in
These principles of interpretation help explain why petitioner‘s reliance on City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513 (City of Alhambra) is unavailing.12 In that case, a plaintiff alleging police misconduct propounded interrogatories asking the officer in question whether he had received psychiatric treatment. (City of Alhambra, at p. 518.) The trial court ordered the officer to answer the interrogatories, but the Court of Appeal reversed, concluding the psychotherapist-patient privilege barred disclosure. (Id. at p. 519.) In reversing, the appellate court rejected the plaintiff‘s argument that
The differences between City of Alhambra and this case are readily apparent. For reasons we have explained,
Petitioner also heavily relies on the Law Revision Commission comment accompanying
In fact, the existence of salient differences between psychiatrists and other mental health professionals for purposes of Board investigations provides good reason to believe that is precisely what the Legislature concluded. As we have already explained, physicians like petitioner are entitled to practice medicine—and to prescribe highly addictive controlled substances—only because they have a certificate from the Board that authorizes them to do so. (
We do recognize the Legislature could have expressed its intentions regarding the applicability of the psychotherapist-patient privilege in a Medical Practice Act investigation even more clearly than it has. (Cf., e.g.,
B
To say the medical records subpoenaed by the Department are not covered by a statutory privilege is to answer only one of the two questions presented in this case. We still must address whether the subpoenas infringe on M.L., L.R., and J.M.B.‘s constitutional right to privacy, and if so, whether the Department has made a sufficient showing to justify such infringement. Apparently applying a general balancing test, the trial court concluded the Department had made such a showing as to four of the subpoenas’ categories (that call for treatment and testing records, X-ray or other imaging records, pathology reports and lab data, and “all other data . . . which would reveal all medical care provided“) but not for the remaining two categories (all correspondence and all billing records).
The question of whether patients have a state constitutional right to privacy that protects information contained in their medical records is, in our view, an easy one. Beyond peradventure, they do. (In re Lifschutz, supra, 2 Cal.3d at pp. 431–432; Fett v. Medical Bd. of California (2016) 245 Cal.App.4th 211, 216 (Fett) [citing cases recognizing patients’ privacy rights concerning information in their medical records];
1
Citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill), the Department contends a “general balancing test” is all that is necessary to overcome the medical privacy right at issue in this case. We are not persuaded this is the correct approach. To be sure, Hill does say that not every assertion of a privacy interest must be overcome by a compelling interest; rather, such an interest need only be shown for those “vital” privacy interests that “involve[] an obvious invasion of an interest fundamental to personal autonomy.” (Id. at p. 34.) In so holding, however, our Supreme Court cited to several of its prior cases to distinguish those where a showing of a compelling interest had been found necessary from those where general balancing tests were employed. Among the citations is People v. Stritzinger (1983) 34 Cal.3d 505, which the Hill court describes as a case that held a “patient‘s privacy interest in psychotherapy must yield to compelling state interests.” (Hill, supra, at p. 34, fn. 11; see also Wood, supra, 166 Cal.App.3d at pp. 1147–1148 [Board must show compelling interest to overcome privacy right]; Gherardini, supra, 93 Cal.App.3d at p. 680 [same]; cf. Kirchmeyer v. Phillips, supra, 245 Cal.App.4th at p. 1404 [holding the Board must demonstrate a compelling interest, but basing its holding in part on the conclusion that the psychotherapist-patient privilege, not just the state constitutional right to privacy, applied].) We read the citation to People v. Stritzinger as an indication of the interest that must be shown in a case like this one, and we hold the Department must therefore demonstrate a compelling interest to overcome the patients’ right to privacy in their psychiatric records.
There is ample reason to conclude the state has a compelling interest in a case like this one that involves an investigation into excessive or improper prescribing of controlled substances. The Legislature itself has emphasized the importance of such investigations by directing the Board to prioritize its resources on certain matters believed to represent “the greatest threat of harm,” including “[r]epeated acts of clearly excessive prescribing . . . of controlled substances, or repeated acts of prescribing . . . controlled substances without a good faith prior examination of the patient and medical
Petitioner, however, advances what can be construed as a variant on her argument that no compelling interest supports the subpoenas in this case. She contends that even if the state has a compelling interest in investigating improper prescribing of controlled substances as a general matter, the Department and the Board cannot assert that interest here because those entities have not competently demonstrated adequate predication for their investigation of petitioner. Each of the contentions petitioner makes in this regard is unpersuasive.
Petitioner contends Dr. Gray‘s declaration is not competent to demonstrate the Board has sufficient predication for its investigation into petitioner‘s controlled substance prescribing practices because Dr. Gray is a specialist in internal medicine, not psychiatry. The trial court concluded Dr. Gray was sufficiently qualified to competently render an opinion, and we review that determination for abuse of discretion. (Fett, supra, 245 Cal.App.4th at p. 222; Whitney v. Montegut (2014) 222 Cal.App.4th 906, 917–918.) While a declaration from a psychiatrist may have been more persuasive, we do not believe the trial court abused its discretion in finding Dr. Gray competent to render an opinion on the potential dangers presented by the dosages of Adderall and Vyvanse petitioner prescribed to the three patients in question. Dr. Gray declared she was familiar with the applicable standard of care, and she did not opine on whether petitioner accurately diagnosed whether the patients were suffering from mental health conditions requiring treatment—indeed, the diagnosis that led to the prescriptions is unknown. Rather Dr. Gray opined 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. So far as the record before us reveals, these are all topics sufficiently within the training and experience of a physician with a specialty in internal medicine.14
Petitioner also contends Dr. Gray‘s declaration is deficient because Dr. Gray formed her opinion based on CURES reports which petitioner argues are “unreliable hearsay.”15 Even assuming for argument‘s sake courts cannot, as a general matter, consider hearsay when deciding whether to grant a petition to compel compliance with an administrative subpoena, Dr. Gray is an expert and the trial court did not abuse its discretion in concluding Dr. Gray could rely on and recite the CURES report data in explaining the basis for her opinion. (
More broadly, petitioner contends the facts and opinions related in the declarations of Dr. Gray and Investigator Coleman do not give rise to adequate suspicion to justify an investigation into whether petitioner is violating laws concerning the prescribing of controlled substances. We find the argument unpersuasive. Dr. Gray‘s opinion, set forth in her detailed declaration and grounded in her review of the reports detailing the amount of controlled substances petitioner prescribed in comparison to the recommended dosages, may well have sufficed by itself to establish the suspicion that would justify commencing an investigation. (Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 8 [Board may investigate merely on suspicion the law is being violated].) But there was more. Investigator Coleman explained she spoke with M.L. and M.L. denied petitioner had treated her at all. While M.L. might have simply been reluctant to admit she had been treated by a psychiatrist, her denial is another reason why the Department and the Board would reasonably conclude an investigation was warranted. In addition, petitioner has previously been disciplined by the Texas Medical Board for improperly prescribing sleep medication, and this is yet another fact on which the Board could properly rely to conclude there was good reason to investigate petitioner‘s prescribing practices as to M.L., L.R., and J.M.B.
Petitioner argues that even if the Department and the Board have a compelling reason to seek information contained in the medical records of M.L., L.R., and J.M.B., the Department and the Board must proceed by the least intrusive manner available. Insofar as she contends the entities were required to pursue voluntary means of obtaining the information sought before resorting to compulsory process, the contention is sound. (Whitney v. Montegut, supra, 222 Cal.App.4th at pp. 918–919; Wood, supra, 166 Cal.App.3d at p. 1149 [“The first constraint appropriate to accommodate the privacy interest of the patient is that the board must take reasonable steps to notify the patient of its proposed examination“]; see also Valley Bank of Nev. v. Superior Court (1975) 15 Cal.3d 652, 658.) There is no dispute the Department and the Board pursued such means in this case.
On the other hand, to the extent petitioner contends the items demanded in the subpoenas must be narrowly tailored to the interest in investigating the improper prescription of controlled substances, the contention is wide of the mark. The high burden imposed by a strict narrow tailoring requirement is inconsistent with the investigatory stage that precedes a formal accusation, where the information available to the Department may be sparse and the ability to craft highly targeted demands for information is often limited. We instead agree with prior cases that have held information demanded by an administrative subpoena in a case like this must be ” ‘relevant and material’ ” to the investigation being conducted. (Wood, supra, 166 Cal.App.3d at p. 1149 [“The board must demonstrate that the particular records it seeks are ‘relevant and material to the board‘s inquiry’ whether the petitioners have improperly prescribed Schedule II drugs“]; accord, Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 469 (Bearman).) That does not mean, of course, the “relevant and material” standard is easily satisfied; rather, administrative subpoenas must still be carefully crafted to winnow out immaterial records. (Bearman, supra, at p. 472; Wood, supra, at pp. 1148–1149.)
All of the categories in the subpoenas here are limited to seeking information in the patients’ medical records during the time periods Dr. Gray identified as suspect after reviewing the CURES report. Such a time limitation is an important constraint that helps ensure the items demanded are relevant and material to the investigation. Although confining a subpoena to a limited, defined time period will almost always be necessary to satisfy the relevance and materiality requirement, rarely if ever will such a time limitation alone be sufficient. Here, however, Dr. Gray‘s declaration also supplies a sufficient factual predicate to explain why the specific items requested in the
The same cannot be said for two other aspects of the subpoenas. First, the subpoenas demand “[t]he complete medical record” which is defined to “include[], but [not be] limited to” the six more specific categories in the subpoena. This expansive “including but not limited to language” is entirely inconsistent with the relevant and material standard; a subpoena must itemize, at least by category, the materials to be produced. The subpoenas also demand in category six “all other data, information or record which would reveal all medical care provided to the patient.” This sort of “catch-all” category is also unjustified; it is tantamount to a request for the patients’ entire medical file during the operative time period. As we have said, a time limitation alone will rarely suffice to appropriately cabin a subpoena‘s demand for private information of the type sought in this case.
DISPOSITION
The petition is granted in part. Let a writ of mandate issue ordering respondent court to vacate its May 20, 2016, order on the petition for order to enforce subpoenas filed by Real Parties in Interest and to issue a new and different order consistent with the views expressed in this opinion, i.e., granting the petition for order to enforce subpoenas only as to categories one through three in the Department‘s subpoenas. All parties shall bear their own costs in this proceeding.
Kriegler, Acting P. J., concurred.
KUMAR, J.,* Concurring.—I agree with the approach taken by the majority. I respectfully write separately to point out that a trial court‘s ruling on the issue of whether a subpoena seeks records that are “relevant and material” to a compelling interest is subject to review for abuse of discretion. (See McLane Co. v. EEOC (2017) 581 U.S. 72, 81
Petitioner‘s petition for review by the Supreme Court was denied July 26, 2017, S242334. Kruger, J., did not participate therein.