Business Law

Grafilo v. Soorani (Oct. 2, 2019, B286912) __Cal.App.5th__, 2019 WL 5561411, publication ordered Oct. 29, 2019

Medical Board may compel production of patient records based on expert declaration documenting prescription irregularities.

Dr. Emil Soorani, a psychiatrist, was investigated by the Medical Board after it received information he was overprescribing controlled substances. The Board obtained a Controlled Substance Utilization Review and Evaluation System (CURES) report detailing his prescribing history. The Board’s medical consultant identified six patients who were prescribed controlled substances in large quantities or with “erratic patterns.” The consultant opined it was necessary to review the medical records of those patients to determine whether Dr. Soorani was excessively prescribing controlled substances. None of the patients granted the Board’s request to access their records, so the Board issued subpoenas to Dr. Soorani, who invoked patient privileges and privacy rights and refused to provide records. 

The Board (via the director of the Department of Consumer Affairs) petitioned for an order compelling Dr. Soorani to produce the medical records. The petition was supported by the consultant’s declaration stating that Dr. Soorani appeared to be prescribing medicine outside the standard of care and that obtaining patient records was the only way to confirm it. Dr. Soorani opposed the petition and denied overprescribing medication. The superior court granted the petition. The court acknowledged patients’ privacy interest in their medical records, but found disclosure justified by the state’s interest in ensuring that medical care conforms to the standard of care. The superior court found that the consultant’s declaration furnished a reason to suspect that Dr. Soorani had violated the Medical Practice Act. Dr. Soorani appealed.

The Court of Appeal affirmed, holding that the Board made a sufficient factual showing to justify the invasion of Dr. Soorani’s patients’ privacy. The court rejected Dr. Soorani’s arguments that the Board ignored less intrusive means of obtaining information (since it had asked for voluntary production); that the consultant was unqualified (since every physician can opine on standard recommended dosages and possible side effects of prescription drugs); and that the Board’s consultant’s declaration was speculative and lacked evidentiary support (since the consultant recounted specific prescribing irregularities involving high dosages and large quantities of drugs that had dangerous side effects). 

The bulletin describing the Court of Appeal’s 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.

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