Metropolitan News-Enterprise


Tuesday, August 26, 2008


Page 1


Doctor-Patient Privilege Extends to Drug Records—C.A.


By SHERRI M. OKAMOTO, Staff Writer


A medical prescription held by a registered pharmacist to whom it was presented is a privileged communication under the physician-patient privilege, this district’s Court of Appeal ruled yesterday.

Holding that the same is true of a prescription issued by a psychotherapist, Div. Four nonetheless concluded in an unpublished opinion that a woman waived the privilege when she discussed her use of prescription medications during depositions in a custody dispute with her ex-husband, and directed the trial court to permit discovery of her prescription records, subject to appropriate protective orders and limitation of disclosure to records relevant to contested issues.

Seeking sole legal custody of his two young sons, William Matthews alleged his ex-wife Natalie Matthews was taking “super strong” Vicodin and receiving multiple prescriptions from multiple doctors.

Los Angeles Superior Court Judge James D. Endman ordered both parents to submit to psychiatric evaluations by a court appointed evaluator, which they did, completing medical history questionnaires.

Natalie Matthews disclosed in a questionnaire that she completed and returned to the evaluator and her ex-husband’s attorneys that she suffered from several ailments and was taking multiple prescription medications.

William Matthews’ attorneys then twice deposed Natalie Matthews regarding the information in her questionnaire.

During the first, she testified that she took Xanax, Ambien, Soma, and Vicodin, and had been doing so during the previous six months. She said she had obtained the prescriptions from a physician and a psychiatrist.

At one point during the deposition, her attorney objected to an inquiry into what her doctor had told her regarding how often she should take the Vicodin, but permitted her to answer.

Matthews also disclosed the amount of Vicodin prescribed to her, how often she took it, and how often the drugs were prescribed, and claimed to use a single pharmacy to fill her prescriptions.

During a second deposition, she testified as to the frequency and reasons she was taking Ambien and Vicodin, and that she was seeing a therapist for depression. Neither she nor her attorney objected the questions.

Believing that his ex-wife was lying about her drug use, William Matthews served subpoenas duces tecum on several pharmacies near his ex-wife’s home, requesting production of any prescriptions filed in her name.

Endman granted Natalie Matthews’ motion to quash all of the subpoenas except for that served on the pharmacy she had disclosed in her deposition, and William Matthews petitioned for a writ of mandate.

Writing for the appellate court, Presiding Justice Norman L. Epstein reasoned that a prescription is a privileged portion of the communication between a doctor and patient and that the doctor-patient privilege therefore extends protection to any records of physician-patient or psychotherapist-patient communication in the form of a prescription kept by the pharmacist.

But, Epstein explained, the privilege is waived if the privilege holder discloses a significant part of the privileged communication or fails to claim the privilege.

Epstein noted that Natalie Matthews’ sole privilege objection only claimed privilege for words “spoken between doctor and patient” in response to a specific question about her discussion with her doctor as to how often she was to take Vicodin, and that she had freely discussed her medical conditions, medications, usage and the pharmacy she used to obtain her medications with her ex-husband and his attorneys.

Accordingly, he concluded, Matthews had waived the privilege, as well as her statutory privacy rights as to the matters discussed, for purposes of the custody dispute, and directed the trial court to allow William to access to prescription records medications and conditions related to his ex-wife’s pain and depression.

Justices Thomas L. Willhite and Nora M. Manella joined Epstein in his opinion.

Thomas Paine Dunlap and Anne Kiley of Trope and Trope represented William Matthews. Wallace S. Fingerett of Feinberg Mindel Brandt & Klein represented Natalie Matthews.

The case is Matthews v. Superior Court (Matthews), B208007.


Copyright 2008, Metropolitan News Company