County of Los Angeles v. Superior Court (Johnson & Johnson) (June 15, 2021, D077794) __ Cal.App.5th __ [2021 WL 2426564]

Medical records pertaining to substance abuse treatment are protected from discovery by the patients’ right to privacy.

Various counties and cities (the People) sued certain pharmaceutical companies (Pharma) for false and misleading statements made in a deceptive opioid marketing scheme that caused a public health crisis. Pharma sought to compel production of the medical records of more than 5,000 patients diagnosed with or treated for opioid abuse, addition, and overdoses at government facilities. The trial court ordered production, provided the records were first de-identified by a third-party vendor that itself would be subject to a protective order.  The People sought writ relief, asserting the patients’ right to privacy.

The Court of Appeal granted writ relief. Applying Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, the Court first determined that the order threatened “serious intrusion” into the patients’ well-settled privacy rights, which state and federal law strongly protect. The Court of Appeal observed that the patients had a reasonable expectation of privacy under the circumstances since they had never taken litigation positions putting their private medical information at issue. The privacy invasion was serious due to the sensitive nature of substance abuse treatment, the lack of notice to the patients, the broad scope of disclosure, and the possibility that the vague protective order might not prevent inadvertent or intentional disclosure, possibly through insufficient de-identification protocols to prevent reidentification via data mining. The court then held that Pharma failed to identify countervailing interests in disclosure that outweighed these serious privacy concerns. The Court relied heavily on Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, its prior decision in the same litigation holding that the defendants’ interest in discovering whether their drugs were associated with opioid abuse and overdoses, and whether patients were engaged in illicit activities such as securing drugs from unauthorized prescribers, was insufficient to overcome the patients’ privacy rights.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.