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Cross v. Superior Court (Awet Kidane, Director, Department of Consumer Affairs)

California Court of Appeals, Second District, Fifth Division

May 1, 2017

ALISA CROSS, Petitioner,

         ORIGINAL PROCEEDINGS in mandate No. BS160696. Robert Hess, Judge. Petition granted in part and denied in part.

          Baranov & Wittenberg, Gary Wittenberg, for Petitioner.

          No appearance for Respondent.

          BAKER, J.

         Kamala D. Harris and Xavier Becerra, Attorneys General, Gloria L. Castro, Senior Assistant Attorney General, Judith T. Alvarado, Supervising Deputy Attorney General, Christine R. Friar, Deputy Attorney General, for Real Parties in Interest.

         Alisa Cross (petitioner) is a physician, one who specializes exclusively in psychiatry. The California 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 precluded petitioner from relying on the psychotherapist-patient privilege in a Board investigation, and that there was good cause to require production of the records notwithstanding the patients' privacy rights. These two issues-the applicability of the psychotherapist-patient privilege in a Board investigation into improper prescribing of controlled substances, and the sufficiency of the Department's showing to overcome the patients' right to privacy-are the same issues before us in this proceeding.



         The Board is a creature of statute. (Bus. & Prof. Code, § 2001.) It is a 15-member body located within the Department and it is charged with protecting the public through, among other things, issuing medical licenses and certificates, reviewing the quality of medical practice carried out by licensed physicians, and enforcing the disciplinary and criminal provisions of the Medical Practice Act, i.e., Business & Professions Code section 2000 et seq. (Bus. & Prof. Code, §§ 2001.1, 2004, 2220.) The practice of medicine without a valid certificate issued by the Board (or a certificate issued in accordance with some other provision of law) is a criminal offense. (Bus. & Prof. Code, §§ 2051, 2052.) By virtue of the Medical Practice Act and other laws (and with certain exceptions not relevant here), only physicians may prescribe drugs to patients; psychologists and other mental health professionals may not. (Bus. & Prof. Code, §§ 2051, 2052, 2904; Health & Saf. Code, § 11150.)

         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. (Gov. Code, §§ 11180, 11181, subd. (e); Arnett v. Dal Cielo (1996) 14 Cal.4th 4');">14 Cal.4th 4, 8.) Disciplinary investigations under the Medical Practice Act are conducted jointly by Board personnel, Department investigators (pursuant to authority delegated from the Department's Director), and the Health Quality Enforcement Section of the Attorney General's office.[1" name= "ftn.FN1" id="ftn.FN1">1] (Bus. & Prof. Code, §§ 2006, 2220; Gov. Code, §§ 12529.6, 11182.) Unprofessional conduct by a physician that is subject to investigation includes the violation of any provision of the Medical Practice Act, gross negligence, “[r]epeated acts of clearly excessive prescribing... of drugs, ” and “[p]rescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an appropriate prior examination and a medical indication....” (Bus. & Prof. Code, §§ 725, 2234, 2242; see also Bus. & Prof. Code, §§ 2220.05, subd. (a) [prioritizing the investigation of [“[r]epeated acts of clearly excessive prescribing, furnishing, or administering of controlled substances, or repeated acts of prescribing, dispensing, or furnishing of controlled substances without a good faith prior examination of the patient and medical reason therefor”], 4022 [“dangerous drugs” are those requiring a prescription].)


         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 over-prescribing 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 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 exceeded the maximum daily recommended dosage for treatment of ADHD, which “would rarely require more than 40 mg per day, ” and narcolepsy, which had a total daily recommended dosage of 60 mg.

         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 medical record includes, but is not limited to: [¶] 1. all medical and psychiatric histories, diagnoses, treatment notes and records, physical examinations, test results, orders, prescription records, operative reports, consultation records, nursing notes; [¶] 2. all x-ray films and reports, MRIs and reports, CT scans and reports; [¶] 3. all pathology reports and laboratory data; [¶] 4. all correspondence, doctor-patient agreements, memorandums, releases, telephone messages; [¶] 5. all billing records; and [¶] 6. all other data, information or record which would reveal all medical care provided to the patient.”

         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.


         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 two-fold: 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.

         Petitioner's declaration also sought to undermine the factual showing made by Dr. Gray in support of the petition to enforce the administrative subpoenas. Petitioner asserted it was “widely known among physicians specializing in psychiatry” that dosages of stimulants used in the treatment of ADHD can “appropriately be higher than the dosages recommended by the pharmaceutical manufacturer, ” and she attached a medical journal article intended to substantiate her assertion. Petitioner also sought to rebut Dr. Gray's criticism of prescribing Adderall and Vyvanse in combination to patient J.M.B. Petitioner stated she “would not expect a general practice physician such as [Dr. Gray] to understand and appreciate the complexities of prescribing appropriate doses of stimulants to patients as such physicians generally do ...

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