Cross v. Superior Court (May 1, 2017, No. B277600) __ Cal.App.5th __ [2017 WL 1549906]
The Medical Board served a psychiatrist with subpoenas seeking the records of three patients for whom she allegedly overprescribed controlled substances. The psychiatrist refused to produce the records, invoking the psychotherapist-patient privilege under Evidence Code section 1014 and her patients’ constitutional right to privacy. The Board petitioned to compel compliance with the subpoenas. The superior court partially granted and partially denied the petition. The court ruled that Business and Professions Code section 2225 abrogates the privilege in Board disciplinary investigations. The court also ruled that, notwithstanding patient privacy rights, the Board had established good cause to compel disclosure of all requested records except certain correspondence and billing records. The psychiatrist filed a petition seeking writ relief.
The Court of Appeal mostly denied writ relief. The court first held that medical records are not sheltered from disclosure to the Board during an investigation because the earlier-enacted general privilege in Evidence Code section 1014 was displaced by the later-enacted, more specific exception in Business and Professions Code section 2225: “any other law making a communication between a physician . . . and his or her patients a privileged communication . . . shall not apply to investigations.”
Regarding the constitutional privacy issue, the court explained that the Board had the burden of establishing a compelling interest and showing that its subpoena sought information relevant and material to its investigation. The court rejected both the Board’s proposed “general balancing” test, and the psychiatrist’s alternative “narrow tailoring” test that would have required the Board to proceed in the least intrusive manner, such as pursuing voluntary disclosures of information before resorting to compulsory process. The court held that the Board had established a compelling interest in investigating allegedly improper prescribing practices; the court also held that most of the information demanded by the subpoena was relevant and material because it was time-limited to particular medical records of three patients. But the court further held the subpoena violated patient privacy rights (and therefore granted writ relief) to the extent it compelled overly broad disclosures of “complete” medical records and had included a “catch-all” category seeking “all other data.”
Peder K. Batalden
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