Friday, September 19, 2014
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S.C. to Hear Privacy Challenge to Prescription Database Statute
By KENNETH OFGANG, Staff Writer
The California Supreme Court has agreed to determine whether healthcare regulators violated the state Constitution’s privacy clause when they accessed a local doctor’s prescribing records as part of an investigation into claims of unprofessional conduct.
The justices, at their weekly conference in San Francisco Wednesday, voted 5-0 to review the ruling of this district’s Court of Appeal, Div. Three, in Lewis v. Superior Court (Medical Board of California) (2014) 226 Cal. App. 4th 933. Justice Kathryn M. Werdegar was absent and did not participate.
The Court of Appeal panel held that the Medical Board and its investigative arm, the Division of Medical Quality, did not violate the informational privacy rights of Dr. Alwin Lewis’ patients by accessing a database of prescription records. The investigation led to finding that the doctor had overprescribed controlled substances for two patients for a short time, and failed to maintain accurate records, although a more serious charge of repeatedly prescribing dangerous drugs without conducting adequate patient examinations was rejected.
Patient Complaint
The investigation began with a patient complaint that the doctor had treated her unprofessionally during an initial consultation in 2008. She said the doctor told her she needed to lose weight and recommended a diet she thought was unhealthful.
In the course of the probe, an investigator ran Lewis’ name through CURES, the Controlled Substance Utilization Review and Evaluation System, which the investigator later testified was a routine practice. By statute, dispensing pharmacies are required to submit weekly reports to the Attorney General’s Office, which oversees CURES, identifying the prescriber and user for each prescription for a Schedule II, III, or IV controlled substance.
After reviewing Lewis’ prescription records obtained through CURES, the division identified six patients with questionable histories, and asked them for privacy waivers. Three of them signed the waivers, and investigators subpoenaed records of two other patients.
After being placed on three years’ probation by the Medical Board, Lewis filed a petition for writ of administrative mandate, arguing that, except with respect to the original complainant, the board and the division had violated his patients’ right to informational privacy by accessing the CURES database without a waiver, a subpoena, or a showing of good cause.
To the extent the CURES statute allows such access, the doctor argued, the law violates the state and federal constitutional rights to privacy.
Writ Denied
Los Angeles Superior Court Judge Joanne O’Donnell denied the writ, saying there was no privacy violation and that even if there was, it was outweighed by the “compelling public interest” in regulating prescription drugs.
Justice Richard Aldrich, writing for the Court of Appeal, analyzed the issue in terms of the state’s explicit constitutional privacy right and concluded that the writ was properly denied.
There is only a limited expectation of privacy with respect to controlled substances prescriptions, the justice said, because, unlike treatment records, those prescription records are subject to “regular scrutiny by law enforcement and regulatory agencies as part of the pervasive regulation of controlled substances.”
The CURES statute, he went on to say, serves very important public interests in curbing substance abuse and protecting the public from bad doctors. In addition, the law contains sufficient safeguards against abuse of the government’s access to the database, including a ban on sale or transfer of the data by the agency that obtains it, and a requirement that agencies adopt specific practices to safeguard the data against unauthorized disclosure, the justice said.
Other Action
In other conference action, the justices rejected a request by the California Employment Lawyers Association to depublish the opinion of the First District’s Div. Four in Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231. The court, in its May 15 opinion, upheld the enforceability of an arbitration clause expressly requiring that an arbitrator, rather than a judge, determine whether the arbitration clause is enforceable with regard to a specific dispute.
The clause read:
“The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.”
The court said the clause was enforceable because the plaintiff lacked specific grounds for challenging it and the clause’s intent was clear.
Justice James Humes, writing for the Court of Appeal, said the clause did not lack mutuality, and that the plaintiff’s unconscionability arguments with respect to the agreement as a whole did not undermine the clause because her arguments were not specific to that provision.
The high court Wednesday also left standing a ruling by this district’s Div. Four that the plaintiff who brought a challenge to Los Angeles County’s collection of hotel bed taxes lacked standing to bring it. In an unpublished opinion, the court said Rajendra Pershadsingh could not sue, either as an individual or on behalf of a class, because his solely owned corporation paid the tax.
The case is Pershadsingh v. County of Los Angeles, B247727.
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