LOS ANGELES — Patient-physician privilege and a patient’s constitutional right to privacy are not necessarily applicable during the investigation of a physician, according to recent ruling out of the California Second District Court of Appeal.
In an opinion delivered on May 5, Associate Justices Sandy R. Kriegler, Lamar W. Baker and Sanjay T. Kumar found that psychiatrist Alisa Cross had no legal right to withhold three clients' records during an investigation against her for prescribing psychotropic drugs like Adderall in Cross v. Superior Court of Los Angeles County.
In 2014, the Medical Board of California subpoenaed Cross, who has held her license for 22 years, after receiving a consumer complaint that the doctor was overprescribing medication to three of her patients. Because the three patients could have been at risk for coronary disease by the over-prescription of controlled substances, “subpoenas were drafted to require production of ‘the complete medical record’ for the patients,'” according to the opinion, adding that Dr. Cheryl Gray was appointed to review the three-year history of three female patients through the Controlled Substance Utilization Review and Evaluation System.
Gray attempted to contact the patients to no avail, with two of the patients not responding to the request and the third patient claiming she had never been treated by the psychiatrist. Then Cross was subpoenaed for the records, also to no avail, claiming that she did not have the consent of two patients and could not find the third.
A trial court then compelled compliance for the subpoenas, basing their ruling on the California Business and Professions Code that allows for the release of records when a physician is being investigated based on the Medical Practice Act.
The appeals court ruled that when submitting subpoenas that are not covered by patient-physician privilege, the request must be tightly tailored in time and relevancy.