California Court of Appeals, Second District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
ORIGINAL PROCEEDINGS in mandate. No. BS139289 Joanne B. O’Donnell, Judge. Petition denied.
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Fenton Nelson, Henry R. Fenton, Dennis E. Lee and Benjamin J. Fenton for Petitioner.
Francisco J. Silva, Long X. Do and Lisa Matsubara for California Medical Association as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Gloria L. Castro, Assistant Attorney General, E.A. Jones III and Edward K. Kim, Deputy Attorneys General, for Real Party in Interest.
In this case, we determine whether the Medical Board of California (hereafter, the Board) violated patients’ informational privacy rights in their controlled substances prescription records when the Board obtained that data from the Controlled Substance Utilization Review and Evaluation System (CURES) (Health & Saf. Code, § 11165) during a disciplinary investigation of their physician. Alwin Carl Lewis, M.D., contends the CURES statute violates his patients’ informational privacy rights, as the statute permits the Board to access data before obtaining a warrant or administrative subpoena demonstrating good cause.
California’s Constitution grants an express right to privacy (art. I, § 1), thus our focus is on California case law rather than federal law or the federal Constitution. The Board’s statutory authority to access CURES during
the course of an investigation into Lewis’s alleged unprofessional conduct requires balancing his patients’ right to privacy in their controlled substances prescription records against the state’s interest in protecting the public health by regulating the abuse and diversion of controlled substances, and in protecting the public against incompetent, impaired, or negligent physicians. We conclude on balance, the CURES statute does not amount to an impermissible invasion of Lewis’s patients’ state constitutional right to privacy, as there are sufficient safeguards to prevent unwarranted public disclosure and unauthorized access to CURES data. Thus, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Board, through its Division of Medical Quality, has statutory authority to investigate, and to take and commence disciplinary action against a physician guilty of unprofessional conduct. (Bus. & Prof. Code, §§ 2220, subd. (a), 2227, 2234, 2241.5, subd. (c)(7); Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7 [56 Cal.Rptr.2d 706, 923 P.2d 1]; see also Stiger v. Flippin (2011) 201 Cal.App.4th 646, 651-652 [135 Cal.Rptr.3d 168].) The Board enforces the Medical Practice Act (Bus. & Prof. Code, § 2000 et seq.), and several statutory provisions address prescribing controlled substances by licensee-physicians. (Bus. & Prof. Code, §§ 2238 [violation of state or federal statute regulating dangerous drugs or controlled substances], 2241 [furnishing drugs to addicts], 2241.5 [prescribing, dispensing, or administering to a person under his or her treatment for medical condition, dangerous drugs or prescription controlled substances for treatment of pain], 2242 [furnishing dangerous drugs without examination].) To assist regulatory agencies, such as the Board, in their efforts to control the diversion and resultant abuse of controlled substances, CURES electronically monitors the prescribing and dispensing of these prescription drugs. (Health & Saf. Code, § 11165, former subd. (c).)
1.Access To CURES During Investigation and Disciplinary Proceedings
The Board began its investigation after one of Lewis’s patients complained about the quality of care and treatment that she received during her initial consultation in May 2008. The patient’s complaint focused on Lewis’s recommendation that she lose weight and start a diet that the patient considered to be unhealthful.
During the course of the investigation, the Board investigator obtained CURES reports for Lewis’s prescribing practices from November 1, 2005 through November 25, 2008, and from December 16, 2008 through December 16, 2009. The investigator testified that it was a common practice during the course of an investigation to “run” a CURES report on the physician.
Based upon a review of these CURES reports, the Board sent releases to six of Lewis’s patients to obtain their medical records. The Board received signed releases from three patients, and the Board obtained the other two patients’ records after an administrative subpoena was issued and notice was sent to the patients that their medical records were being subpoenaed.
The operative second amended accusation (accusation) filed by the Board against Lewis alleged, as to the initial patient, gross negligence in her care and treatment by failing to focus on her chief complaints, repeated negligent acts in her care and treatment, failure to maintain adequate/accurate medical records, and general unprofessional conduct. With respect to the additional patients, the accusation alleged prescribing without an appropriate prior examination, excessive prescribing, failure to maintain adequate/accurate medical records, general unprofessional conduct, and violation of drug statutes.
At the conclusion of the eight-day administrative hearing, the administrative law judge (ALJ) submitted a proposed decision. As to the initial patient, the ALJ concluded that Lewis engaged in unprofessional conduct by failing to maintain adequate records. With respect to the additional patients, the ALJ found that two of Lewis’s patients had been over-prescribed controlled substances during a short period of time. The ALJ, however, concluded it had not been established that Lewis engaged in repeated acts of excessive prescribing of dangerous drugs or furnished dangerous drugs without appropriate prior examinations. Lewis was disciplined for failing to maintain accurate prescription records. The ALJ recommended revoking Lewis’s license, but the revocation was stayed. Lewis was placed on probation for three years with certain conditions. The Board adopted the ALJ’s proposed decision.
2. Mandamus Proceeding in Superior Court, Petition for Writ of Mandate
Lewis filed a petition for writ of administrative mandamus in the trial court seeking to set aside the Board’s decision. Lewis did not challenge the Board’s
factual findings and legal conclusions as to the initial patient, but challenged the factual findings and legal conclusions with respect to the additional patients. Lewis argued the Board violated his patients’ informational privacy rights under article I, section 1 of the California Constitution by accessing CURES during the course of an investigation unrelated to improper prescription practices, and also violated their rights not to be subjected to unwarranted searches and seizures.
The trial court denied the petition, concluding CURES permitted the Board to access the data without an administrative subpoena or other showing of good cause. In the extensive written order, the court further stated that Lewis “provide[d] no authority suggesting that an authorized government body’s review of the CURES system’s data violate[d] a right to privacy.” The trial court noted that even if the constitutional right to privacy were implicated, the right to privacy is not absolute and “must be weighed against the compelling public interest in controlling potentially dangerous pharmaceuticals to prevent their abuse.” In weighing these competing interests, “[t]he public health and safety concern[s] served by the monitoring and regulation of the prescription of controlled substances serves a compelling public interest that justifie[d] disclosure of prescription records without notification or consent.” Judgment was entered denying the petition for writ of administrative mandamus.
Lewis filed a petition for writ of mandate in this court to set aside the judgment. A writ petition is the only authorized mode of appellate review. (Bus. & Prof. Code, § 2337; Leone v. Medical Board (2000) 22 Cal.4th 660, 663-664, 670 [94 Cal.Rptr.2d 61, 995 P.2d 191].) We issued an order to show cause. For the reasons stated, we discharge the order to show cause and deny Lewis’s petition.
Lewis presents the following issue for review: “[W]hether the Medical Board of California is permitted to conduct searches, without any showing of any kind—whether good cause, reasonable suspicion, or some other similar standard—and without warrant or subpoena—of the controlled substances prescription records of patients throughout the State, via the State’s computerized Controlled Substance ...