Kennedy v. Superior Court (June 14, 2019, A157089) ___ Cal.App.5th ___ [2019 WL 2484008]

Order enforcing Medical Board subpoena of medical records not stayed pending physician’s appeal.

The Medical Board of California issued a subpoena demanding that Dr. Ron Kennedy produce the medical records of three minor patients for whom he had provided vaccination exemptions. When Dr. Kennedy refused to comply, the Board filed a petition in the superior court under Government Code section 11187 to compel compliance. The superior court granted the petition and ordered Dr. Kennedy to produce the records, then denied Dr. Kennedy’s request to stay that order pending appellate review. Dr. Kennedy appealed and filed a petition for a writ of supersedeas seeking a stay of the production order pending appeal.

The Court of Appeal filed a published order denying supersedeas. Relying on the usual statutes governing stays in Code of Civil Procedure sections 916 to 918, Dr. Kennedy argued he was entitled to a stay pending appeal upon posting a bond in an amount fixed by the trial court. But the court rejected that argument, holding that swath of the Code of Civil Procedure inapplicable to a “special proceeding” like the Government Code section 11187 production order. In addition, the Board’s duty to investigate complaints against physicians would be hindered if physicians could force the Board to obtain court orders enforcing its subpoenas, then automatically stay those orders pending appeal.

The Court of Appeal explained that Dr. Kennedy can seek a discretionary stay by showing that his appeal raises substantial questions, and that disclosure of the records will cause irreparable harm. Here, however, the superior court acted within its discretion in finding the Board’s interest in obtaining vaccination records outweighed the patients’ privacy rights. Accordingly, the court declined to issue a discretionary stay.

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