Thursday, March 3, 2016

California Medical Board Can Subpoena Medical Records From Physicians Even If Patients Object to Production

A recent opinion by the Court of Appeals is an administrative subpoena case that gives additional guidance to doctors and other professionals who have their records subpoened even when the patients or clients object to the production of records. The case is David Fett, MD v. Medical Board of California, No. B262469.

We often see cases where the Medical Board approaches patients and asks them to sign consent forms for records release while telling them at the same time that if they refuse to sign, they will simply subpoena the records. We have also had cases where the "patients" were undercover officers and the records release was simply a way to build a case against the physician.

Our experience has been that the Superior Courts will enforce the subpoenas even against the objection of the patient or where there is a criminal investigation.  This Court of Appeal case confirms that at this time, the courts will not allow patients to prevent the production of their personal medical records where the Medical Board can show good cause.

Factual Background 

The Medical Board had received a complaint from Stacey Wagley, an investigator at OptumInsight (a company that facilitates electronic transactions between insurance carriers, health care providers and medical facilities), alleging that Dr. Fett, an ophthalmic plastic surgeon, may have billed for services he did not render and received funds to which he was not entitled. Ms. Wagley provided her investigative file to the Board.

After reviewing Ms. Wagley’s investigative file (which included incomplete versions of the three patients’ medical records), Dr. Erich W. Pollak, the Medical Board’s consultant, concluded that Dr. Fett may have breached the standard of care by:
(1) failing to safeguard medical records;
(2) failing to obtain informed consent;
(3) operating without written consent;
(4) failing to properly document billings;
(5) altering medical records; and
(6) misrepresenting the complexity of procedures. 

However, Dr. Pollak opined that it was necessary to obtain the patients’ complete medical records to make an accurate determination of these possible breaches.  The Medical Board issued subpoenas issued subpoenas for the 3 records.

Subpoenas for Medical Records Over Patients' Objection 
 All three patients objected to the release of their records and indicated they were satisfied with Dr. Fett’s care. 

Superior Court Denied Petitions to Quash Subpoenas
Dr. Fett filed petitions for orders quashing the subpoenas in the Superior Court because his patients objected to the production of their medical records. 

The Superior Court denied the petitions to quash on the grounds that the patients' rights to privacy in this regard are trumped by "good cause" establishing a nexus between the goals of the investigation and the records sought.

Court of Appeal Affirmed Superior Court Ruling
The Court of Appeals affirmed the Superior Court's ruling and held that production of patient medical records is compelled because the Medical Board’s interest in protecting public health outweighed privacy interests in the records. 

First, the court held that substantial evidence supported the trial court’s finding that good cause existed for compelling production of the records.  Among other deficiencies, consent forms were missing, had irregular signatures, and/or lacked witnesses, and bills lacked documentation, appeared altered, or failed to support the services billed. 

The court agreed with Dr. Pollak that the patients’ complete files were needed to determine whether records were missing or altered, whether Dr. Fett ever operated without patient consent, and whether complete operative reports were prepared. 

Dr. Fett challenged Dr. Pollak’s report on the ground he was not an ophthalmic plastic surgeon.  But the court held that Dr. Pollak was qualified to competently opine about general standards of surgical practice. 

Dr. Fett also argued that Ms. Wagley’s investigative file could not support the Board’s investigation because she violated patient medical confidentiality protected by Civil Code section 56.26 when she provided the Board with patient records.  The Court of Appeal disagreed, holding that no exclusionary rule prevents improperly obtained evidence from being used to launch an administrative investigation.  

Finally, the Court of Appeal held the government’s compelling interest in protecting the public—by ensuring that medical care provided by Board-certified practitioners meets the industry’s standard of care—outweighs these patients’ privacy interests, and that the subpoena was not overbroad because the court limited it to three years of records.

Attorney Commentary: This will also affect other professionals. For example, currently an attorney may resist a State Bar subpoena for a client's file on privilege and confidentiality grounds if the client did not make the complaint.

This case may also result in more insurance companies filing complaints against physicians and other professionals where the patients or clients do not want to cooperate.


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