California Court of Appeals, First District, First Division
Contra Costa Superior Court County, No. MSN121932 Hon. Steven K. Austin J.
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Pacific West Law Group, Brock Phillips and Gregory Abrams for Defendant and Appellant.
Francisco J. Silva, Long X. Do, Lisa Matsubara and Melanie S. Neumeyer for California Medical Association as Amicus Curiae on behalf of Defendant and Appellant.
Kamala D. Harris Attorney General, Gloria Castro, Assistant Attorney General , Esther H. La and Jose R. Guerrero, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Chiarottino, a physician licensed to practice in California, appeals from the trial court’s order to comply with investigative subpoenas issued by plaintiff Medical Board of California (Board). The Board issued the subpoenas in connection with an investigation into defendant’s prescribing activities as they pertain to controlled substances. On appeal, defendant contends the court erred in rejecting his argument that the Board violated his patients’ right to privacy by accessing a computerized database of controlled substance prescription records prior to issuing the subpoenas. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In August 2011, the Board obtained information that defendant was possibly prescribing excessive medications to patients in violation of the Medical Practice Act. (Bus. & Prof. Code, § 2000 et seq.) A Board investigator obtained a Controlled Substance Utilization Review and Evaluation System (CURES) report of defendant’s prescribing history between August 22, 2009 and February 22, 2012. The investigator also obtained CURES reports of the prescription histories for five of defendant’s patients over a 12-month period between 2011 and 2012, and the corresponding pharmacy records for these same patients.
The Board’s medical expert Rick Chavez, M.D., conducted an independent review of the CURES reports and the patients’ pharmacy records. He
identified significant concerns and irregularities in defendant’s prescribing of controlled substances to these patients, including prescribing large quantities of highly addictive and dangerous narcotics, prescribing highly unusual combinations of drugs, prescribing buprenorphine (a drug used to resolve opiate addiction) to patients who were concurrently receiving opioids from several other physicians, prescribing at irregular time intervals, and prescribing highly addictive drugs for lengthy periods of time. Chavez concluded defendant’s conduct was alarming and difficult to justify.
On February 7, 2012, the Board’s investigator sent letters to the five patients requesting authorization for the release of their medical records with respect to the treatment they received from defendant. Defendant was subsequently served with subpoenas directing him to produce the patients’ medical records. After the patients were notified of the subpoenas, they informed the investigator that they objected. Defendant’s counsel indicated to the investigator that defendant would not produce the requested information because the patients had objected to the release of their medical records.
On December 26, 2012, the Board filed a petition for an order compelling compliance with the investigative subpoenas. (Gov. Code, § 11180 et seq.) In its supporting papers, it argued that the five patients’ medical records were needed to properly assess whether the narcotics and controlled substances defendant had prescribed were or were not warranted, and whether he was in compliance with standards of care and practice. The Board asserted these records were necessary to allow it to “fulfill its monitoring responsibilities of public protection as mandated by California law.” It claimed the subpoenas were “reasonably tailored to seek only the records that are necessary and material to the Board’s investigation.”
On January 2, 2013, the trial court issued an order to show cause regarding the Board’s petition.
On January 31, 2013, defendant filed his opposition to the Board’s petition. He claimed his refusal was based on protecting the privacy rights of his patients, as well as their rights not to be subjected to unwarranted search and seizure.
On April 18, 2013, the trial court granted the Board’s petition to compel defendant’s compliance with the ...