Metropolitan News-Enterprise


Tuesday, July 18, 2017


Page 1


California Supreme Court Declares:

Board Didn’t Breach Patients’ Privacy Rights

Liu Writes That State’s Interests in the Protecting Public From Dangerous Drugs And Incompetent Doctors Justifies Looking at Prescription Records


By a MetNews Staff Writer




The privacy rights of patients were not violated when the Medical Board of California looked at their prescription records in the course of investigating their doctor, the California Supreme Court held yesterday, unanimously.

Rejecting the doctor’s contention that the board wrongfully peeked at his patients’ records in a statewide prescription database, Justice Goodwin Liu, writing for the majority, said:

“[E]ven assuming the Board’s actions constituted a serious intrusion on a legally protected privacy interest, its review of these records was justified by the state’s dual interest in protecting the public from the unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.”

‘Five-Bit’ Diet

The doctor who had been under investigation was Alwin Lewis, a Burbank internist. The board’s probe was launched in 2008 after a patient complained of Lewis’s “five-bite” diet under which breakfast is skipped and only five bites of food are consumed for and dinner.

After reviewing records of Lewis’s prescriptions for all of his patients, charges were brought, and an administrative law judge determined he had engaged in unprofessional conduct, committed acts of negligence, and did not maintain adequate records. The board adopted the ALJ’s recommendation that Lewis’s license be revoked, staying that action pending the doctor’s completion of three years on probation.

Lewis sought a writ of administrative mandamus to contest the discipline, arguing that his patients’ rights of privacy were breached. Los Angeles Superior Court Judge Joanne B. O’Donnell denied relief, declaring:

“The public health and safety concern served by the monitoring and regulation of the prescription of controlled substances serves a compelling public interest that justifies disclosure of prescription records without notification or consent.”

The doctor then sought a writ in the Court of Appeal for this district. In an unpublished decision, Justice Richard Aldrich of Div. Three said there is statutory authority for the board to look at prescription records and the “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…data.”

Issue of Standing

In yesterday’s opinion, Liu rejected the board’s contention that Lewis had no standing to raise his patient’s privacy rights, but agreed with its stance that state constitutional privacy does not require obtaining a search warrant or subpoena, supported by good cause, in order to look at prescription records.

As to standing, Lui said that the patients’ privacy rights are significant “[b]ecause an individual’s prescription records contain intimate details about his or her medical conditions” and “the patients are unable to assert their own rights because they were never given notice that their records were accessed.”

As to showing good cause, the jurist wrote:

“[A] good cause requirement would compromise the Board’s ability to identify and address potentially dangerous prescribing practices. Requiring the Board to present evidence to a judicial officer establishing good cause as part of its preliminary investigations could result in protracted legal battles that effectively derail those investigations. Patients who objected to subpoenas to compel disclosure of their medical records on the ground that the Board lacked good cause have stalled investigations in the past….Such delay is tolerated in that context because of the heightened privacy interests implicated by government searches of medical records. For prescription records, however, delays of that magnitude would impede the Board’s ability to swiftly identify and stop dangerous prescribing practices.”

He said that “any potential invasion of privacy caused by the Board’s actions was justified by countervailing interests.”

Liu added some other thoughts in a concurring opinion.

The case is Lewis v. Superior Court, 17 S.O.S. 3561.


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