Tuesday, May 2, 2017
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C.A. Upholds Medical Board’s Right to Subpoena Psychiatrist’s Records
By a MetNews Staff Writer
A statutory exception to the physician-patient privilege, permitting the Medical Board of California to subpoena patient records in the course of investigating a doctor, applies to psychotherapists, the Court of Appeal for this district ruled yesterday.
Div. Five, in an opinion by Justice Lamar Baker, largely denied a petition for writ of mandate sought by Dr. Alisa Cross. The panel did, however, find the board’s subpoena to be overbroad, saying the doctor could not be required to produce a patient’s “complete medical record” and “all other data, information or record which would reveal all medical care provided to the patient.”
Evidence presented in the writ proceeding shows that the board began an investigation of Cross in 2014 based on a complaint that she was overprescribing psychotropic medication. Dr. Cheryl Gray, an internist working as a board consultant reviewed records from CURES, the state prescription database, and identified issues involving three of Cross’s patients, all adult females.
Two of the women, Gray found, were prescribed excessive amounts of Adderall, a stimulant used primarily to treat ADHD and narcolepsy. The third was prescribed the maximum recommended daily dosage of Adderall recommended for treatment of ADHd, but was also prescribed Vyvanse, a “longer acting” stimulant, in the same period, for reasons Gray found unclear.
The board investigator sent forms to the three women, explaining that the board was seeking their records in connection with an investigation, and that it would subpoena the records if the patients would not sign releases. Two of the women could not be reached, while the third denied having been treated by Cross.
The subpoenas that were issued directed Cross to produce various records, for the periods in which the drugs in question were prescribed, “all medical and psychiatric histories, diagnoses, treatment notes and records….”; “all x-rays, MRIs, CT scans” and related reports; “all pathology reports and laboratory data”; and “all correspondence, doctor-patient agreements, memorandums, releases, telephone messages”; as well as billing records, complete medical records, and “all other data.”
Cross refused to comply with the subpoena. She said that two of the women had refused consent to release their records, and that she could not release the third patient’s records because she had not been able to reach her.
The board petitioned the Los Angeles Superior Court to compel compliance. Judge Robert Hess found that Business and Professions Code §2225 abrogated the privilege, and that, while the patients had a constitutional right to privacy, the right was qualified and the board had established that those privacy interests were outweighed by “other important interests” with respect to all of the records except correspondence and billing records.
Baker, writing for the Court of Appeal, said the trial judge was correct with respect to the application of §2225. He also concluded that, with respect to the first three categories of records sought, the state made the showing required to trump the patients’ privacy interests—that the state’s interest was compelling and that the information demanded was “relevant and material.”
The justice explained the histories of the physician-patient and psychotherapist-patient privileges. He noted that the latter was created when the Evidence Code was enacted in 1965, giving psychotherapist-patient communications the same broad privilege that certified psychologists and their patients already enjoyed, which was broader than the physician-patient privilege.
Shortly after the Evidence Code was enacted, however, the Legislature enacted the predecessor of Business and Professions Code §2225(a). The current language provides that “[n]othwithstanding…any…law making a communication between a physician and surgeon…and his or her patients a privileged communication, those provisions shall not apply to investigations and proceedings conducted under [the Medical Practice Act.]”
That language, Baker said, shows legislative intent to abrogate the privilege with respect to any disciplinary investigation authorized by the Medical Practice Act. He rejected Cross’s contention that because the psychotherapist-patient privilege is separate from, and broader than, the physician-patient privilege, it continues to apply in the face of a Medical Board investigation.
The justice distinguished City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, in which the court held that the plaintiff in a police misconduct case could not compel the officer to disclose whether he had received psychiatric treatment. The court reasoned that while Evidence Code §999 specifically created an exception to the physician-patient privilege in that circumstance, it did not create an exception to the psychotherapist-patient privilege.
The differences between the two cases “are readily apparent,” Baker wrote, because §2225(a) “is correctly understood as an exception to the psychotherapist-patient privilege and, as a later-enacted, more specific statute, section 2225 trumps any conflicting language in the Evidence Code.”
Baker went on to reject the petitioner’s alternative argument that the state failed to establish sufficient cause to override the patients’ privacy rights with respect to any of the categories of documents sought, and in particular her argument that the medical consultant was not competent to question Cross’s treatment because Gray is not a psychiatrist.
Gray, the justice said, did not question Cross’s diagnoses that the patients required treatment, but merely “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,” which Baker said were “all topics sufficiently within the training and experience of a physician with a specialty in internal medicine.”
The justice also rejected the contention that Gray improperly relied on the CURES reports, which the petitioner argued constituted “unreliable hearsay.” Baker questioned whether the hearsay rule applies in a proceeding to enforce an administrative subpoena, but said that even if it did, Gray, as an expert, was entitled to consider hearsay in forming her opinions.
Attorneys on appeal were Gary Wittenberg of Baranov & Wittenberg for Cross and Deputy Attorney General Christine R. Friar for the state.
The case is Cross v. Superior Court (Kidane), B277600.
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