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Board may probe MD’s prescribing records without violating patients’ privacy

Although patients have a limited privacy expectation in the prescription information contained in the state’s database, the state’s interest in controlling dangerous drugs and doctors outweighs that expectation, the Supreme Court of California held July 17. The court rejected a physician’s challenge to the use, in his disciplinary proceeding, of records from the state’s prescription database (Lewis v. Superior Court).

The case involves the use of the Controlled Substance Utilization Review and Evaluation System, or CURES, California’s mandatory prescription drug monitoring program which logs personal information about the recipient of controlled substance prescriptions and the identity of the prescription provider.

The board initiated an investigation against physician Alwin Lewis in 2008 after receiving a patient complaint and, as part of that investigation, a board investigator obtained a record of Lewis’s CURES activity. Using those CURES records, the board charged Lewis with improper prescribing practices.

During the disciplinary process, Lewis challenged the use of the CURES reports, arguing that the board had violated his patients’ privacy rights by accessing the records. An administrative law judge denied the challenge, the disciplinary case went ahead, and Lewis was given a suspended revocation and three years’ probation. He appealed, and the case eventually made its way up to the state’s California Supreme Court.

As a threshold matter, the Court agreed with Lewis that he had standing to assert his patients’ privacy rights. “Because an individual’s prescription records contain intimate details about his or her medical conditions, the government’s ability to access these records may cause patients to hesitate to seek appropriate medical treatment,” wrote Justice Goodwin Liu.

Citing U.S. Supreme Court precedent on standing, Justice Liu wrote that “because a physician has an interest in patients seeking appropriate treatment and using appropriate medication, the Board’s actions are ‘inextricably bound up with the activity the litigant wishes to pursue’ in this case,” and noted that “in this case, the patients are unable to assert their own rights because they were never given notice that their records were accessed.”

Despite that successful assertion of standing, however, the court ruled that the board had not acted improperly in accessing the database. Patients’ privacy rights in the prescription records do exist, Justice Liu wrote, but “the Board’s actions in this case do not implicate a fundamental autonomy right.”

“. . . The disclosure of information from CURES may be one consideration affecting a patient’s choice to pursue treatment, but it does not significantly impair the patient’s ultimate ability to make that choice on his or her own.”

And, under existing precedent, if an agency action does not implicate such a “fundamental autonomy right,” all the agency must do to justify the action is to show that an inva-sion of privacy “is justified by a competing state interest.”

Addressing that balancing judgment, the Court held that the state’s interests in regulating dangerous prescription drugs and protecting the public from dangerous physicians were sufficient competing interests to justify the board’s invasion of patients’ limited privacy expectations in their prescription records.

In addition, although Lewis argued that the board should be required to show that it had used the least intrusive means possible to obtain the information, by limiting its searches of the CURES database to situations in which it could show good cause, the court noted that such a consideration was only one among many to be considered when the pros and cons of CURES access.

Justice Liu did acknowledge that there are limits on the board’s ability to access the state’s drug prescription log (CURES). She wrote: “Our rejection of an individualized good cause requirement should not be understood to suggest that Board investigations may access the CURES database for any reason,” and that such access was limited to aiding law enforcement and regulatory agencies control the abuse and wrongful dispersion of prescription drugs.

In addition, the board was prohibited by law from the wrongful public disclosure of patient information obtained from CURES. The information obtained was only available to be shared with other government agencies, and limits were in place on what information could be revealed about individual patients during investigations.

The court also said that such a “good cause” requirement would unreasonably “compromise the Board’s ability to identify and address potentially dangerous prescribing practices,” since “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.”

Having rejected Lewis’s challenges, the court upheld the lower decision to allow CURES records into evidence.