Medical Bd. of Calif. v. Chiarottino , 170 Cal. Rptr. 3d 540 ( 2014 )

Filed 4/15/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MEDICAL BOARD OF CALIFORNIA,
Plaintiff and Respondent,
A138420
v.
MICHAEL CHIAROTTINO, (Contra Costa County
Super. Ct. No. MSN121932)
Defendant and Appellant.
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)1 report of defendant’s
prescribing history between August 22, 2009 and February 22, 2012. The investigator
1
The Controlled Substance Utilization Review and Evaluation System was
established pursuant to Health and Safety Code section 11165. This section was made
operative on January 1, 2005.
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.)2 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
2
Trial courts are authorized to enforce investigative subpoenas that are “regularly
issued.” (Gov. Code, § 11188.) “The term ‘regularly issued’ means in accordance with
the provisions of sections 11180, 11181, 11182, 11184 and 11185 of the Government
Code providing for the matters which may be investigated, the acts authorized in
connection with investigations, and the service of process.” (Fielder v. Berkeley
Properties Co. (1972) 23 Cal. App. 3d 30, 39.)
2
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 subpoenas. The court found the Board had set forth
sufficient facts to support a finding of good cause. The court limited the disclosure to
records that “are relevant and material to the pending investigation,” by setting forth
certain substantive and time-based limitations. This appeal followed.
DISCUSSION
I. Standard Of Review
The standard of review generally applicable to review of a trial court’s order
involving discovery matters or other matters where the trial court has discretionary power
is abuse of discretion. (See Britts v. Superior Court (2006) 145 Cal. App. 4th 1112, 1123.)
An abuse of discretion is found where a court exceeds the bounds of reason in light of the
circumstances under consideration. (Loomis v. Loomis (1960) 181 Cal. App. 2d 345, 348.)
Unless there has been a clear miscarriage of justice, a reviewing court will not substitute
its opinion for that of the trial court so as to avoid divesting the trial court of its
discretionary power. (Id. at p. 349.)
Issues of law are reviewed de novo. (Szold v. Medical Bd. of California (2005)
127 Cal. App. 4th 591, 596.) Construction of a statute is a question of law and, as such, is
subject to de novo review. (Ibid.)
3
II. Contentions On Appeal
As noted above, the trial court found the Board had established good cause to
support the issuance of the subpoenas. Defendant’s sole basis for challenging the trial
court’s good cause finding is his claim that the CURES reports themselves were obtained
in violation of his patients’ rights to privacy under article I, section 1, of the California
Constitution. More specifically, he contends their rights were violated when the Board
was given “unfettered and extensive access to two-and-a-half years’ worth of all of his
patients’ CURES prescription information.” As will be demonstrated, the Board’s
actions were entirely authorized under Health and Safety Code section 11165 (the
CURES statute). Thus, defendant is implicitly attacking the constitutionality of the
statute itself. The weight of authority supports the Board’s position that the statute, and
its actions taken pursuant thereto, pass constitutional muster.
III. The CURES Statute
The prescribing and dispensing of controlled substances in California are strictly
regulated and are monitored by the Department of Justice (DOJ). (See Health & Saf.
Code, § 11150 et seq.) The CURES statute provides for the reporting of prescription
records to the DOJ, and specifically authorizes the DOJ to disclose such records to state
enforcement and regulatory agencies. (Health & Saf. Code, § 11165, subd. (c).) The
DOJ maintains a database for the electronic monitoring of, and Internet access to,
information regarding the prescribing and dispensing of Schedule II, Schedule III, and
Schedule IV controlled substances by all practitioners authorized to prescribe or dispense
these controlled substances. The primary purpose of the CURES statute is to “assist . . .
law enforcement and regulatory agencies in their efforts to control the diversion and
resultant abuse of . . . controlled substances.” (Health & Saf. Code, § 11165, subd. (a).)
It is undisputed that the Board qualifies for authorization under the CURES statute to
access and review prescription records for controlled substances that pharmacists and
other dispensing providers are required to report.
The CURES statute does not require the Board to obtain either patient consent or
judicial approval prior to accessing CURES data. The statute does, however, contain its
4
own confidentiality requirements. Specifically, it provides that the database system
“shall operate under existing provision of law to safeguard the privacy and confidentiality
of patients.” (Health & Saf. Code, § 11165, subd. (c).) The statute further prohibits the
disclosure, sale, or transfer of patient data to any third party. (Ibid.)
IV. The Medical Board of California
In Arnett v. Dal Cielo (1996) 14 Cal. 4th 4 (Arnett), our Supreme Court provided a
useful overview of the Board’s role in protecting the health and safety of the public. As
the court observed, California has long regulated the practice of medicine as an exercise
of the State’s police power. (Id. at p. 7.) “A key instrument of that regulation has been
the statewide agency authorized to license and discipline medical practitioners,” now
known as the Medical Board of California. (Ibid.; see Bus. & Prof. Code, § 101, subd.
(b).) “A primary power exercised by the Board in carrying out its enforcement
responsibilities is the power to investigate: the statute broadly vests the Board with the
power of ‘Investigating complaints from the public, from other licensees, from health
care facilities, or from a division of the board that a physician and surgeon may be guilty
of unprofessional conduct.’ [Citation.]” (Arnett, supra, at pp. 7-8.)
“The Board’s investigators have the status of peace officers [citation], and possess
a wide range of investigative powers. In addition to interviewing and taking statements
from witnesses, the Board’s investigators are authorized to exercise delegated powers
[citation] to ‘Inspect books and records’ and to ‘Issue subpoenas for the attendance of
witnesses and the production of papers, books, accounts, documents and testimony in any
inquiry [or] investigation . . . in any part of the state.’ [Citations.]” (Arnett, supra, at
p. 8.) Further, because the Board is authorized “to issue a subpoena ‘in any inquiry [or]
investigation’ [citation], the Board may do so for purely investigative purposes; it is not
necessary that a formal accusation be on file or a formal adjudicative hearing be pending.
[Citation.]” (Ibid.) The Court in Arnett further observed “ ‘the power to make
administrative inquiry is not derived from a judicial function but is more analogous to the
power of a grand jury, which does not depend on a case or controversy to get evidence
5
but can investigate “merely on suspicion that the law is being violated, or even just
because it wants assurance that it is not.” ’ [Citation.]” (Ibid.)
The Board is specifically charged with enforcement of the Medical Practices Act,
and many of the Act’s provisions focus particularly on the use and misuse of prescription
drugs, as illustrated by the following statutes: Business and Professions Code section
2238 (violation of state or federal statute regulating dangerous drugs and controlled
substances), sections 2241 and 2241.5 (furnishing prescription drugs to an addict), and
section 2242 (furnishing prescription drugs without an appropriate prior examination and
medical indication).
In the present case, defendant does not challenge Board’s investigative powers
directly. Instead, he repeatedly asserts the Board violated his patients’ privacy rights
when it obtained “unfettered access” to the CURES data, data the Board subsequently
relied on to justify the issuance of the five subpoenas.3
IV. The Board’s Actions Taken Pursuant to the CURES Statute Did Not Violate
Patients’ Privacy Rights
A. The State Constitutional Right to Privacy
“In 1972, Californians, by initiative, added an explicit right to privacy in the
state’s Constitution: ‘All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty, acquiring, possessing,
and protecting property, and pursuing and obtaining safety, happiness, and privacy.’
(Cal. Const., art. I, § 1, italics added.)” (County of Los Angeles v. Los Angeles County
Employee Relations Com. (2013) 56 Cal. 4th 905, 926 (County of Los Angeles).)
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1 (Hill), our Supreme
Court “established a framework for analyzing constitutional invasion of privacy claims.
An actionable claim requires three essential elements: (1) the claimant must possess a
legally protected privacy interest [citation]; (2) the claimant’s expectation of privacy
3
A physician has the right to assert the privacy interests of his patients who have
not consented to the disclosure of their medical records. (Wood v. Superior Court (1985)
166 Cal. App. 3d 1138, 1145.)
6
must be objectively reasonable[4] [citation]; and (3) the invasion of privacy complained of
must be serious in both its nature and scope [citation]. If the claimant establishes all
three required elements, the strength of that privacy interest is balanced against
countervailing interests. [Citation.] In general, the court should not proceed to balancing
unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it
negates any of the three required elements. [Citations.] A defendant can also prevail at
the balancing stage. An otherwise actionable invasion of privacy may be legally justified
if it substantively furthers one or more legitimate competing interests. [Citation.]
Conversely, the invasion may be unjustified if the claimant can point to ‘feasible and
effective alternatives’ with ‘a lesser impact on privacy interests.’ [Citation.]” (County of
Los Angeles, supra, 56 Cal.4th at p. 926, fn. added.)
It is established that patients do have a right to privacy in their medical
information under our state Constitution.5 (See, e.g., Gross v. Recabaren (1988) 206
Cal. App. 3d 771, 782-783 [substantial privacy concerns are raised whenever there is an
intrusion into a patient’s confidential relationship with a physician.]; Ruiz v. Podolsky
(2010) 50 Cal. 4th 838, 851 [the same with respect to disclosure of confidential medical
information regarding the condition a patient seeks to treat].) This right would appear to
extend to prescription records.6 However, it is also well settled that an individual’s
constitutional right to privacy is not absolute. (Hill, supra, 7 Cal.4th at p. 37.)
4
“A ‘reasonable’ expectation of privacy is an objective entitlement founded on
broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.)
The reasonableness of a privacy expectation depends on the surrounding context. The
Supreme Court has “stressed that ‘customs, practices, and physical settings surrounding
particular activities may create or inhibit reasonable expectations of privacy.’
[Citation.])” (County of Los Angeles, supra, 56 Cal.4th at p. 927.)
5
“Legally recognized privacy interests include ‘interests in precluding the
dissemination or misuse of sensitive and confidential information,’ which Hill described
under the umbrella term ‘ “informational privacy.” ’ [Citation.]” (County of Los
Angeles, supra, 56 Cal.4th at p. 927.)
6
The Connecticut Supreme Court has noted that a person may reasonably expect
his or her prescription records or information contained therein will not be disseminated
publicly “[b]ecause prescription records may contain information of a private nature
7
Even assuming defendant has satisfied the three-prong prima facie elements under
Hill, we conclude any invasion of his patients’ privacy rights with respect to the Board’s
review of information obtained from the CURES database is justified by a compelling
competing interest: “Invasion of a privacy interest is not a violation of the state
constitutional right to privacy if the invasion is justified by a competing interest.
Legitimate interests derive from the legally authorized and socially beneficial activities of
government and private entities. Their relative importance is determined by their
proximity to the central functions of a particular public or private enterprise. Conduct
alleged to be an invasion of privacy is to be evaluated based on the extent to which it
furthers legitimate and important competing interests.” (Hill, supra, 7 Cal.4th at p. 38.)
Here, the balance favors disclosure.
B. Defendant Does Not Challenge the CURES Statute on Its Face
As the Board correctly notes, to the extent defendant is contending on appeal that
the CURES statute is facially unconstitutional, he did not raise this argument in the
proceeding below; thus, this argument may be deemed waived. (Ochoa v. Pacific Gas &
Electric Co. (1998) 61 Cal. App. 4th 1480, 1488, fn. 3 [“arguments not asserted below are
waived and will not be considered for the first time on appeal”].) We also observe he has
not cited to any legal authority to support an argument that the CURES statute is facially
unconstitutional. Accordingly, we deem the argument waived and abandoned.7 (Ibid.)
regarding a person’s physical or mental health.” (State of Connecticut v. Russo (2002)
259 Conn. 436, 460.)
7
Amicus curiae the California Medical Association (CMA) asserts the CURES
statute fails to comply with privacy statutes requiring heightened protection of highly
sensitive medical information. Specifically, the CMA asserts that access to the
prescription information contained in the CURES database can lead to the disclosure of
information as to an individual’s HIV status, treatment for drug and alcohol abuse, or
participation in outpatient psychotherapy. The CMA finds fault with the provision in the
statute that allows the DOJ to unilaterally determine whether “to share private
prescription information with any third party as determined by the DOJ.” Notably, the
CMA does not argue that the DOJ abused its discretion in sharing CURES database
information concerning defendant’s patients with the Board. The CMA further asserts
that while CURES “can serve a needed purpose to help control drug diversion in the state
8
C. The Board Did Not Violate Defendant’s Patients’ Right to Privacy
Defendant concedes that the CURES statute “appears to authorize the [Board] to
obtain CURES data in its investigation of doctors for potential disciplinary purposes, as
in the instant case.” Our research has not disclosed a California case directly addressing
an invasion of privacy claim with respect to activities undertaken pursuant to the CURES
statute. However, a recent case lends support for the proposition that the Board’s conduct
can be justified by a compelling governmental interest. In 420 Caregivers, LLC v. City of
Los Angeles (2012) 219 Cal. App. 4th 1316 (420 Caregivers), the Court of Appeal
reversed an order granting a preliminary injunction against the enforcement of an
ordinance regulating the number and geographic distribution of medical marijuana
collectives and requiring their registration. Among its conclusions, the appellate court
found the collectives did not have a reasonable expectation of privacy in the limited
information sought by the ordinance. (Id. at p. 1350.) Alternatively, it found any
invasion of a reasonable expectation of privacy to be justified by a legitimate and
competing state interest. (Id. at p. 1349.) Because the collectives did not demonstrate a
likelihood of prevailing on the merits at trial, the appellate panel concluded the trial court
had erred in granting the request for a preliminary injunction. (Id. at p. 1350.)
In arriving at its holding, the appellate court observed “statutes already allow the
disclosure of patient contact information by traditional health care providers upon
demand. . . . Insofar as schedules II, III, and IV controlled substances (drugs which may
be legally prescribed) are concerned, pharmacies are already required weekly to provide
the state Department of Justice with the names, addresses, and phone numbers of
prescribed users. [Citation.] This information, in turn, may be given to state, local, or
federal agencies for purposes of criminal or disciplinary investigations. [Citation.]” (420
Caregivers, supra, 219 Cal.App.4th at p. 1350, italics added.) The reviewing court
and assist physicians in making informed prescribing decisions,” the privacy protections
of the system “are outdated and unregulated.” In light of the fact that defendant has not
raised a direct challenge the CURES statute, such concerns are more properly addressed
to the Legislature.
9
concluded: “In short, even where the privacy rights of individual collective members are
concerned, the information sought is extremely limited and nonintimate in nature and the
information—plus more—is typically already subject to disclosure in the context of more
traditional health care treatments and providers. . . . [W]e see no reason to give medical
marijuana users greater privacy rights than patients utilizing more traditional health care
providers and more traditional prescription drugs. Indeed, given the continued illegal
nature of marijuana under most circumstances, even more substantial invasions of
privacy would likely be justified under the current state of the law. Whether analyzed as
an unreasonable expectation of privacy or a reasonably justified invasion of a reasonable
expectation of privacy, we find no violation of the Collectives’ members’ individual
privacy rights.” (Ibid., italics added.)
In rejecting defendant’s unreasonable search and seizure claim, the trial court in
the present case specifically rejected his right-to-privacy arguments, concluding that,
under the circumstances of this case, neither defendant nor his patients have a reasonable
expectation of privacy in the records maintained in the CURES database. Several other
jurisdictions have addressed this issue more directly and have found that a state law
enforcement official’s access to controlled substance prescription records does not violate
the patient’s right of privacy under federal law or under applicable local privacy statutes.
We find those opinions to be persuasive.
Significantly, in Whalen v. Roe (1977) 429 U.S. 589 (Whalen), the United States
Supreme Court addressed a statute similar to the CURES statute. In Whalen, a group of
patients and physicians, among others, challenged the constitutionality of a New York
statutory scheme requiring physicians to forward records of prescriptions for Schedule II
drugs, which contained detailed patient information, to a centralized database maintained
by that state’s department of health. (Id. at pp. 593-595.) Although, like the CURES
statute at issue here, public disclosure of the identity of the patient was prohibited under
New York law, certain state regulatory employees and personnel responsible for
investigating violations of that state’s controlled substance statutes were afforded access
to that information. (Id. at pp. 594-595.) After finding that the statute furthered the
10
state’s “vital interest in controlling the distribution of dangerous drugs,” the Court
concluded that the challenged statutory scheme, by mandating the disclosure of the
prescription information to representatives of the state having responsibility for the health
and welfare of the community, did not create an impermissible invasion of privacy. (Id.
at pp. 603-604.) As more recent cases demonstrate, other jurisdictions are in accord.
In State of Nebraska v. Wiedeman (2013) 286 Neb. 193, a criminal defendant
argued that state law enforcement officers violated her due process privacy rights through
their warrantless, investigatory access to her prescription records. As in the present case,
she did not challenge the statute that authorized the access. (Id. at p. 203.) The state’s
high court found Whalen to be dispositive of her privacy arguments under the federal
Constitution. (Id. at pp. 204-205.) The Nebraska Court observed “there is a long history
of governmental scrutiny in the area of narcotics and other controlled substances. All
states highly regulate prescription narcotics, and many state statutes specifically allow for
law enforcement investigatory access to those records without a warrant. This well-
known and long-established regulatory history significantly diminishes any societal
expectation of privacy against governmental investigation of narcotics prescriptions.”
(Id. at p. 209, fn. omitted.) The Court concluded the defendant had no legitimate
expectation that governmental inquiries would not occur with respect to a pharmacy’s
prescription records. (Id. at p. 212.)
In State of Connecticut v. Russo (2002) 259 Conn. 436 (Russo), the Supreme Court
of Connecticut held a patient’s privacy rights were not violated under a state statute that
allowed government officials with the duty to enforce state and federal controlled
substance statutes to inspect prescription records. (Id. at p. 457.) The local police
department was investigating a defendant accused of multiple counts of forgery and
obtaining controlled substances by forging a prescription. Pursuant to the challenged
statute, an authorized law enforcement agent had obtained, with the pharmacists’ consent,
records of the defendant’s prescriptions for controlled substances. The Court, largely
relying on Whalen, found the defendant’s privacy rights had not been violated. (Id. at
pp. 471-472.)
11
The Court in Russo noted that the Connecticut statutory scheme was
indistinguishable from the statutes at issue in Whalen. (Russo, supra, 259 Conn. at
p. 464.) Specifically, both schemes safeguarded the privacy interest of the affected
patients by restricting access to those records to a limited class of persons, and by
prohibiting the dissemination of such information to the general public. (Id. at pp. 464-
465.) The Court further observed that nothing in the court records in either case
suggested that the law enforcement officials involved had failed to abide by the
nondisclosure provisions, or that they would likely flout those provisions in the future.
(Id. at p. 465.)
In State of Vermont v. Welch (1992) 160 Vt. 70, the Supreme Court of Vermont
held that a criminal defendant had a privacy interest in her pharmaceutical records, based
on a reasonable expectation that those records would not be arbitrarily disclosed. (Id. at
p. 78.) The court concluded, however, that the “pervasively regulated industry”
exception to the warrant requirement allowed for the warrantless inspection of her
records in furtherance of the enforcement of statutes pertaining to closely regulated
businesses such as pharmacies. (Id. at pp. 79-81.) The court specifically noted the state
interest in the regulation of dangerous drugs (id. at p. 81), and concluded the warrantless
inspection of pharmacy records undertaken in compliance with statutory procedures was
reasonable. (Id. at pp. 83-84.)
Finally, in Stone v. City of Stow (1992) 64 Ohio St. 3d 156, a contingent of doctors,
patients, and a pharmacist sued several municipalities contending that Ohio statutes
providing for the inspection of pharmacy prescription records without a warrant violated
the right of privacy and the prohibition against unreasonable searches and seizures found
in the United States and Ohio Constitutions. (Id. at pp. 159-160.) The Court found
Whalen dispositive of the privacy issue, declining to apply a balancing test that would
weigh the need for access to prescription records against the deprivation of privacy
caused by the regulatory provisions. The Court noted that, on the state of the record
before it, there was no basis for speculating that any unauthorized disclosure of the
prescription records would occur. (Id. at pp. 162-163.)
12
In the present case, defendant argues that the Board violated the privacy rights of
all of his patients by, essentially, conducting a fishing expedition into records of his
prescribing activities as reflected in the CURES database. However, there is no evidence
that the Board acted outside the scope of its investigative mandate. For example,
defendant does not contend the Board used its authority to investigate the records of
individuals who were not his patients, or that the Board improperly disclosed any CURES
information to third parties. Nor does he contend that the Board had any improper
motive in deciding to investigate his own prescribing activities. Thus, it is undisputed
that the Board acted within the scope of its authority and in compliance with all relevant
statutory law.
Further, the cases defendant relies on are inapposite in that they concern subpoena
requests for medical records made by the Board in the absence of good cause. For
example, in Bearman v. Superior Court (2004) 117 Cal. App. 4th 463, the appellate court
held that the Board “must demonstrate through competent evidence that the particular
records it seeks are relevant and material to its inquiry sufficient for a trial court to
independently make a finding of good cause to order the materials disclosed.” (Id. at
p. 469.) The appellate court concluded the Board had failed to set forth facts suggesting
that the prescribing physician had engaged in any unethical conduct with respect to his
prescribing medical marijuana to a patient. Further, the court found the request was
overbroad. (Id. at pp. 471-472.) Here, defendant does not challenge the adequacy of the
Board’s good cause showing to the trial court. Instead, he challenges the legitimacy of
the Board’s conduct in compiling the factual justification that enabled the court to make
an independent assessment of good cause.
For purposes of our decision here, we assume patients have a reasonable
expectation that their prescription records will not be disclosed to persons who are not
actively involved in their care. Balancing society’s substantial interest in reducing the
illegitimate use of dangerously addictive prescription drugs against the relatively minor
intrusion upon a patient’s reasonable expectations of privacy when he or she is given a
prescription by a treating physician, we conclude that, as applied to such patients, the
13
Board’s actions here in accessing and compiling data from the CURES database did not
violate article I, section 1 of the state Constitution. This is particularly so in light of the
fact that the Board is prohibited by law from disclosing this data to third parties. Further,
even a reasonable expectation of privacy is somewhat diminished as it is widely known
that such investigative actions are possible with respect to controlled substances. In this
setting, we conclude that the limited incremental intrusion upon a patient’s privacy is
justified by the state’s countervailing interest in preventing the abuse of controlled
substances. Accordingly, we hold the trial court correctly found there was good cause to
enforce the subpoenas of the five patients’ medical records.
DISPOSITION
The order is affirmed.
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
14
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Steven K. Austin
Counsel for Defendant and Appellant: Pacific West Law Group LLP:
Brock Phillips
and
Gregory Abrams
Counsel for California Medical
Association
as Amicus Curiae on behalf of
Defendant and Appellant: Francisco J. Silva
Long X. Do
Lisa Matsubara
and
Melanie S. Neumeyer
of Center for Legal Affairs,
California Medical Association
Counsel for Plaintiff and Respondent: Esther H. La
Deputy Attorney General
Kamala D. Harris
Attorney General of California
Gloria Castro
Senior Assistant Attorney General
Jose R. Guerrero
Supervising Deputy Attorney General