Selected Developments In Business Law from the Health Law Committee — Medical Board Must Demonstrate Good Cause For Production of Medical Records That Overcomes Patient Privacy Rights

Courtesy of CEB, we are bringing you selected legal developments in areas of California business law that are covered by CEB’s publications. This month’s feature is from the February 2019 update to Advising California Partnerships. References are to the book’s section numbers. The most significant legal developments since the last update include developments in such important topic areas as professional responsibility, federal and state taxation, securities law, and arbitration.

The Health Law Committee recently issued an eBulletin analyzing a recent opinion on whether the state’s interest in a patient’s medical records overcomes that patient’s right to privacy.

The Medical Board of California (“Board”) received an anonymous complaint alleging that Dr. Kamyar Cohanshohet was prescribing excessive narcotics to his patients. After obtaining a report from the Controlled Substance Utilization Review and Evaluation System (CURES) identifying the amount of controlled substances Dr. Cohanshohet prescribed, a Board investigator identified five patients who were possibly prescribed excess doses. The patients refused to release their medical records. Dr. Cohanshohet asserted his patients’ privacy rights and refused to comply with a subpoena to turn them over. The Board then filed a petition seeking an order compelling production of the records.

At a hearing, the Board presented the CURES report and evidence that the five patients were individually prescribed medications that exceeded normal acceptable doses, and argued that their medical records were necessary to determine if Dr. Cohanshohet had performed adequate medical examinations and obtained proper informed consent for these high-dose prescriptions. In opposition, Dr. Cohanshohet presented evidence that the standards relied upon by the Board were not in effect when prescriptions were issued and were merely guidelines inapplicable to the cancer treatment, palliative care, and end-of-life care patients that Dr. Cohanshohet treated. The trial court granted the petition and Dr. Cohanshohet appealed.

The Court of Appeal reversed, explaining that the Board must demonstrate good cause to compel the production of medical records that overcomes patients’ significant privacy interests. In balancing the Board’s showing against the patients’ privacy interests, the court noted the Board presented no evidence that Dr. Cohanshohet failed to properly examine or diagnose his patients, or that his practice deviated from similarly situated doctors. The court concluded that, absent such evidence, the Board had failed to establish good cause.

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.

The Court of Appeal decision can be found here.