Grafilo v. Wolfsohn (April 2, 2019, No. BS171234) __ Cal.App.5th __ [2019 WL 1450733]

Medical Board doesn’t show good cause to subpoena patient medical records in investigation of pain management specialist.

The Department of Consumer Affairs (DCA), which oversees the Medical Board, investigated whether Dr. Marc Wolfsohn, a pain management specialist, was overprescribing opiate painkillers. Based on a report from the Controlled Substance Utilization Review and Evaluation System (CURES), investigators identified five patients who may have been prescribed excessive doses. The DCA served a subpoena duces tecum on Dr. Wolfsohn to produce more than two years of medical records for the five patients. After Dr. Wolfsohn objected on patient privacy grounds, the DCA secured an order compelling production. Dr. Wolfsohn appealed.

The Court of Appeal reversed, holding that the DCA had failed to demonstrate good cause for overriding the patients’ privacy rights. The court explained that “the Medical Board must demonstrate through competent evidence that the particular records it seeks are relevant and material to its inquiry sufficient for a trial court to independently make a finding of good cause to order the materials disclosed.” Here, DCA’s evidence was inadequate because it failed to show “how many patients [Dr.] Wolfsohn treats, the percentage of his patients the five patients comprised, how often similarly-situated pain management specialists might prescribe the drugs [Dr.] Wolfsohn prescribed, or the likelihood [Dr.] Wolfsohn properly issued the prescriptions.” The DCA failed to contradict Wolfsohn’s expert’s declaration that “the prescriptions are ‘not outside of acceptable’ levels for a pain management specialist.” The DCA also tried and failed to distinguish Grafilo v. Cohanshohet (2019) 32 Cal.App.5th 428, where it had likewise failed to establish good cause for compelling production of medical records because it was reasonable to assume that at least some patients required medication exceeding recommended dosages.

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