Metropolitan News-Enterprise


Wednesday, June 16, 2021


Page 3


Order for Disclosure of Drug-Users Treatment Records Upset

Patients’ Privacy Rights Intruded Upon by Order, Court of Appeal Says


By a MetNews Staff Writer


The County of Los Angeles and the County of Alameda prevailed yesterday in the Court of Appeal in their effort to avoid producing a massive number of records relating to patients in government programs who are being treated for substance abuse.

Citing the state constitutional right of privacy, Div. One of the Fourth District Court of Appeal issued a peremptory writ of mandate directing the Orange Superior Court to vacate its order, made by Judge Peter Wilson, compelling production.

The order was sought by Johnson & Johnson and other pharmaceutical companies being sued in the name of the “People of the State of California” by the county counsel of Santa Clara County and the district attorney of Orange County for allegedly spawning the state’s opioid crisis by falsely minimizing the risks of the drugs. Under the order, records were to be produced containing patients’ names, but a vendor would “de-identify” the patients.

Serious Invasion

“[G]iven the nature, scope and the actual and potential impact on patient privacy, we conclude that petitioners have carried their threshold burden of demonstrating that the superior court’s discovery order threatens a serious invasion of privacy,” Justice Cynthia Aaron said in yesterday’s opinion.

She elaborated:

“[T]he nature of the disclosure—the production of patients’ opioid prescription treatment history and/or substance abuse treatment records, without notice to the patients—is consistent with a serious invasion of privacy interests.

“The scope of the disclosure ordered is also extremely broad, whether considered as applied to an individual patient or with respect to the number of records implicated by the order….[T]he number of patient records implicated by the court’s order is staggering.  For example, the County of Los Angeles states in their petition that the records include ‘over 1.7 million associated encounters.’…Thus, the scope of the disclosure at issue also supports the conclusion that the superior court’s order threatens a serious invasion of privacy interests.”

Names Not Disclosed

Aaron said the “ ‘actual or potential’…impact on patient privacy rights is substantial” even though the defendants would not see the patients’ names, explaining:

“[I]t cannot be disputed that the superior court’s order will have some actual impact on patients’ privacy rights in that the court ordered the production of their highly sensitive medical records and prescription data on a fully personally identified basis to an outside entity without the notice or consent of the patients.”

The defendants failed to show countervailing factors in favor of the order, the jurist said.

The case is County of Los Angeles v. Superior Court (Johnson & Johnson), 2021 S.O.S. 2606.

On Jan. 15, the same division, in an opinion by Justice Patricia Guerrero, ordered the Orange Superior Court to vacate its order in the case for production of documents by the state Board of Pharmacy, the Medical Board of California, and the state Department of Justice.


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