Lewis v. Superior Court of Los Angeles County (July 17, 2017, S219811) __ Cal.5th __ [2017 WL 3014285]
As part of its investigation into a patient complaint against Dr. Lewis, the Medical Board of California obtained the prescription records of Dr. Lewis’s patients from California’s Controlled Substance Utilization Review and Evaluation System (CURES) without patient authorization, a warrant, or a subpoena supported by good cause. The Board then filed an accusation against Dr. Lewis, who unsuccessfully moved to dismiss on the ground the Board violated his patients’ privacy rights. An Administrative Law Judge recommended staying revocation of Dr. Lewis’s license and placing him on probation. Dr. Lewis filed an unsuccessful petition for writ of administrative mandamus in superior court reasserting his patients’ privacy rights, then he filed a petition for writ of mandate in the Court of Appeal on the same issue. The Court of Appeal denied writ relief.
The Supreme Court granted Dr. Lewis’s petition for review, and affirmed in a unanimous opinion by Justice Liu. The Court held that (1) Dr. Lewis had standing to assert his patient’s privacy rights, (2) the Board’s conduct should be assessed under the general balancing test, rather than the compelling state interest test, because its actions did not intrude on a fundamental autonomy right, and (3) under that general balancing test, the Board’s conduct did not violate the constitutional privacy rights of Dr. Lewis’s patients. The Court reasoned that the balance of interests tipped in favor of the Board because it had a legitimate interest in protecting the public from unlawful use of dangerous prescription drugs and from negligent or incompetent physicians. The Court explained that the Board need not use the least intrusive means of achieving those legitimate objectives, in part because patients’ privacy interest in their prescription records is “less robust” than their privacy interest associated with their full medical records, and in part because statutes governing CURES limited access and distribution of that information. The Court further reasoned that imposing on the Board the requirement to show good cause was infeasible because it would compromise the Board’s ability to swiftly identify and stop dangerous prescribing practices.
Justice Liu also authored a concurring opinion, joined by Justice Kruger. He explained that the Court’s opinion had assumed arguendo that Dr. Lewis satisfied the threshold elements of an invasion of privacy claim, and he wrote separately to state his belief that Dr. Lewis had satisfied those elements: (1) his patients had a legally recognized privacy interest in their prescription records; (2) the patients had a reasonable expectation of privacy because their prescription records could reveal underlying medical conditions; and (3) disclosure of sensitive medical information by a government agency could not be dismissed as trivial.
Thomas Watson
htwatson@horvitzlevy.com
Horvitz & Levy LLP
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