Kirchmeyer v. Helios Psychiatry Inc. (Feb. 14, 2023, A165128) ___ Cal.App.5th ___ [2023 WL 2518258]

Doctor’s irregular prescription of controlled substances to family member is good cause for disclosure of family member’s private medical information.

When a patient complained to the Medical Board of California (Board) that Dr. Jennifer Dore—a certified psychiatrist and surgeon—inappropriately prescribed controlled substances, the Board opened an investigation into Dore and her practice. After finding an irregular prescription of Adderall and Klonopin (both controlled substances) to a family member employed by her medical practice, the Board served Dore with an investigative subpoena for the family member’s medical records. Dore refused to produce the records.  The Board filed in the trial court a petition to compel Dore and her practice to comply with the subpoena and other interrogatories. Dore opposed the petition. The trial court granted the petition. Dore and her practice appealed. 

The Court of Appeal affirmed. First, it held that the Board provided sufficient evidence showing that it had compelling interest in reviewing the medical records. The Board’s expert declaration explained that treating family members is traditionally outside the scope of standard medical care. Here it was highly unlikely that extenuating circumstances (like an emergency) justified such care. Second, the court held that the Board produced sufficient evidence to support a finding that the family member’s records were relevant and material to the Board’s investigation, which was narrowly crafted to exclude immaterial records. Moreover, the trial court’s failure to make factual determinations was not error because the Board was not obligated to prove wrongdoing. Additionally, the court rejected Dore’s claim that the Board’s expert declaration should have addressed how often other physicians would have issued similar prescriptions. Last, the court distinguished Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, by noting that this case began with a patient complaint (as opposed to one by a third party), the expert declaration described a deviation from the standard of care, and the subpoena was not a fishing expedition.

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, who are partners at the appellate firm 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.