Court: California med board justified in prescription probe
By BRIAN MELLEY
Jul. 18, 2017
LOS ANGELES (AP) — The state Medical Board can dig through prescription drug records without a search warrant or subpoena, the California Supreme Court ruled Monday.
The board did not violate the privacy of patients when it searched a statewide database while investigating a Burbank doctor who was placed on probation for complaints that included excessive prescriptions, the court ruled unanimously.
The ruling, at a time of a nationwide epidemic of opioid abuse, pitted the rights of patients against the government's ability to easily investigate whether doctors are overprescribing powerful drugs.
At issue was the state's prescription monitoring program created more than 20 years ago that allows doctors to check if patients are receiving drugs from other physicians and lets regulators and law enforcement investigate doctors who may be doling out too many controlled substances.
Pharmacies are required to electronically record prescriptions of certain controlled substances, including patient names, birth dates, addresses and the doctor who prescribed them.
The court said investigators could obtain the records for discipline and policing purposes and didn't have to show good cause to access the database because that would hamper efforts to ferret out abuse.
"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," Justice Goodwin Liu wrote. "Delays ... would impede the board's ability to swiftly identify and stop dangerous prescribing practices."
Dr. Alwin Lewis was investigated after a patient who went to see him about headaches and fatigue had complained that he suggested she go on his "five bite diet," which eliminates breakfast and limits dieters to five bites each at lunch and dinner.
While the board ultimately found Lewis didn't provide improper care to that patient, investigators who dug through his prescribing history discovered problems with five other patients. An administrative law judge found he was unprofessional, failed to keep adequate records, and committed negligent acts.
The board adopted the judge's recommendation to put him on probation for three years.
Lewis, who is no longer on probation, said the board improperly launched a "fishing expedition" unrelated to the original complaint and the board put him "through a circus to prove a point."
"The Supreme Court, I feel, they were attempting to be overly cautious in protecting the masses," Lewis told The Associated Press. "I really believed that my principle is right that no government agency should have a right to invade an individual's rights willy-nilly with no due cause."
Lewis said he was disappointed in the ruling and wasn't sure if he would take his challenge to the federal court system.
Last month, the 9th U.S. Circuit Court of Appeals weighed in on a related issue when it said the U.S. Drug Enforcement Administration does not need a court order to subpoena Oregon's prescription drug database.
The court said the state of Oregon, which had tried to prevent the agency from accessing its database because state law requires police to get court orders, could challenge individual warrantless subpoenas in court because of privacy issues.
The ruling did not resolve whether DEA's administrative subpoenas violate constitutional protections against unreasonable search and seizure.
The California Supreme Court noted that Lewis may have fared better if he asserted that protection, but had failed to do so in earlier proceedings so it couldn't be raised before the justices.
A spokeswoman said the Medical Board was pleased with the decision because the database has been important in rooting out abusive prescribing practices.
More than 10 percent of the 521 disciplinary cases brought by the board in the 2015-16 fiscal year were for inappropriate prescribing, according to board statistics.
"This has been a valuable tool for us," Cassandra Hockenson said about the database. "This decision allows us to continue our mission of consumer protection."