Arnett v. Dal Cielo
| Decision Date | 07 July 1995 |
| Docket Number | Nos. A066269,A068097,A068069,s. A066269 |
| Citation | 36 Cal.App.4th 639,42 Cal.Rptr.2d 712 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 36 Cal.App.4th 639, 40 Cal.App.4th 1807, 45 Cal.App.4th 281 36 Cal.App.4th 639, 40 Cal.App.4th 1807, 45 Cal.App.4th 281, 64 USLW 2079, 95 Cal. Daily Op. Serv. 5338, 95 Daily Journal D.A.R. 9071 Dixon ARNETT, as Executive Director, etc., Plaintiff and Respondent, v. William DAL CIELO, as Chief Executive Officer, etc., Defendant and Appellant. Dr. A., Petitioner, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent; Dixon ARNETT, as Executive Director, etc., Real Party in Interest. Peter BUDLONG, as Director, etc., Petitioner, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent; Dixon ARNETT, as Executive Director, etc., Real Party in Interest. MERRITT PERALTA INSTITUTE, Petitioner, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent; Dixon ARNETT, as Executive Director, etc., Real Party in Interest. , and A068074. |
Horvitz & Levy, David M. Axelrad, David S. Ettinger, Encino, Bjork, Lawrence, Poeschl & Kohn, Robert K. Lawrence, Oakland, for William Dal Cielo.
Robert C. Fellmeth, Julianne B. D'Angelo, San Diego, amici curiae for Dixon Arnett.
Daniel E. Lungren, Atty. Gen., Alvin Korobkin, Sr. Asst. Atty. Gen., Vivien H. Hersh, Supervising Deputy Atty. Gen., Thomas P. Reilly, Deputy Atty. Gen., Oakland, Real Party in Interest Dixon Arnett.
William G. Segesta, Berkeley, for Peter Budlong.
John E. Dittoe, Paul D. Fogel, Randall J. Sperring, Crosby, Heafey, Roach & May, Oakland, for Merritt Peralta.
Freeman & Galie, David M. Galie, San Francisco, for Dr. A.
Richard G. McCracken, Andrew J. Kahn, Davis, Cowell & Bowe, San Francisco, for amicus curiae Union of American Physicians and Dentists.
In these consolidated proceedings, we consider efforts of the Medical Board of California (hereafter the Board) to obtain by administrative subpoenas, records of one of its licentiates who has had a problem with addictive drugs.
In 1992, the Board commenced an investigation of Dr. A., an anesthesiologist with staff privileges at Alameda Hospital (hereafter Hospital), upon receiving confidential information alleging that Dr. A. was addicted to narcotic drugs and had administered anesthesia to surgery patients while under the influence of controlled substances.
The Board's investigator interviewed the Medical Staff Coordinator and the President of the Medical Staff at the Hospital and learned that Dr. A. had appeared before the Hospital's Medical Executive Committee and admitted his drug use. Dr. A. had requested and was granted a leave of absence during October and November of 1992 to enter a drug treatment program. The Hospital provided the Board's investigator with a copy of a contract signed on January 28, 1993, in which Dr. A. agreed to a monitoring program by the Hospital. Dr. A. refused to sign a release of his drug treatment records or submit voluntarily to a psychiatric and physical examination. The investigator submitted the case to an addictionologist, Dr. William Brostoff. In December 1993, Dr. Brostoff reported that, despite Dr. A.'s apparently successful completion of a chemical dependency treatment program, he could not determine Dr. A.'s current impairment and competency. Dr. Brostoff "strongly recommend[ed that] an administrative medical psychiatric evaluation of Dr. A. be carried out."
The Board did not take steps pursuant to Business and Professions Code section 820 to require that Dr. A. submit to an examination. Rather, in February of 1994, the Board issued investigational subpoenas duces tecum to Peter Budlong, Director of Admissions Unsuccessful in obtaining compliance with subpoenas to these treatment programs, the Board, on April 5, 1994, issued an investigational subpoena duces tecum to William J. Dal Cielo, Chief Executive Officer of the Hospital, requesting production of documents and records at the Hospital pertinent to Dr. A. and his drug problem. The Hospital refused to comply on several grounds. For one thing, the hospital contended that, given the information the Board already had from the Hospital, the declaration submitted in support of the subpoena failed to establish good cause for disclosure of the records. In addition, the hospital claimed that all the records sought by the Board are privileged under Evidence Code section 1157 (hereafter section 1157) as peer review and credentialing files.
and Outreach of New Bridge Foundation and to Vera Wright, Custodian of Medical Records at Merritt-Peralta Institute commanding these officials to appear before the Board investigator to testify and answer questions in connection with the investigation of Dr. A. and to produce "any and all documentation relating to counselling and/or treatment" of Dr. A. for abuse of alcohol and/or controlled substances.
Dixon Arnett, Executive Director of the Board, represented by the Attorney General, filed a petition in the Alameda County Superior Court for an order compelling the Hospital to produce the documents. On June 15, 1994, the court issued an order compelling compliance. The Hospital appealed this decision and in July of 1994, this court stayed the order pending appeal.
On August 26, 1994, the Board petitioned the Alameda Superior Court for an order compelling New Bridge Foundation and Merritt-Peralta Institute to comply with the subpoenas directed to officials of those organizations. On September 16, 1994, the court granted the motion to compel. New Bridge Foundation, Merritt-Peralta Institute and Dr. A. have each challenged this order by petitions for extraordinary relief.
The three petitions and the appeal raise different issues on the merits and involve different statutes. However, all raise issues regarding administrative subpoenas for medical records of Dr. A. and involve the question of how appellate review of orders compelling compliance with administrative subpoenas should be initiated. Thus we consider them in this consolidated proceeding.
If a party subpoenaed by an administrative agency refuses to comply, the agency may petition the superior court under Government Code section 11187 for an order compelling compliance because administrative agencies do not have the authority to enforce their subpoenas. (People v. Pappalardo (1993) 12 Cal.App.4th 1723, 1730, 16 Cal.Rptr.2d 512.) Although we recognize there is a split of authority on the question, we conclude that the ensuing order is appealable as a final decision in a special proceeding. That was recently described as "the better view" by the court in Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485, 18 Cal.Rptr.2d 198, citing in support the case of Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1140, 212 Cal.Rptr. 811. The Millan court also found support in Knoll v. Davidson (1974) 12 Cal.3d 335, 343, 116 Cal.Rptr. 97, 525 P.2d 1273, where the Supreme Court stated that "unless the statute creating the special proceeding prohibits an appeal, there is an appeal from a final judgment entered in a special proceeding."
The Millan court recognized that there are cases holding that "orders compelling compliance with a subpoena must be reviewed by writ" citing Franchise Tax Board v. Barnhart (1980) 105 Cal.App.3d 274, 277, 164 Cal.Rptr. 331, a case decided by this court. That case, however, should not be read as broadly holding that any order granting or denying compliance with a subpoena is not appealable. Rather this court recognized that "[a]n order made under the authority of ... sections 11186-11188 requiring individual compliance with an administrative subpoena can be viewed as a final judgment in a special proceeding, appealable unless the statute creating the special proceeding prohibits such appeal." (Ibid.) The court went on to point out that the subpoena in the case before it had been issued pursuant to the Political Reform Act which it was required to construe so as to accomplish the Act's purpose of vigorous enforcement. The court then concluded that a liberal construction required review not by appeal but by the more speedy writ remedy and treated the proceeding as one for a writ of prohibition.
The other case cited by Millan as holding that an order under section 11187 is not appealable is Barnes v. Molino (1980) 103 Cal.App.3d 46, 51, 162 Cal.Rptr. 786. There the court reasoned:
We conclude in agreement with the Millan court that the better view is that the order is appealable. 1 It is, in fact, the final determination of the rights of the parties in the proceeding to require compliance with the administrative subpoena. That proceeding itself may also be the only action or proceeding involving the Board and the doctor because the Board is merely conducting an investigation. The Board may well take no further action.
Dr. A.'s treatment records which the Board has subpoenaed from the Merritt-Peralta Institute (hereafter Merritt-Peralta) and from the New Bridge Foundation (hereafter New Bridge) are protected from disclosure by both federal and state statutes. (42 U.S.C. § 290ee-3; Health & Saf.Code, § 11977.)
42 U.S.C. section 290ee-3 and the accompanying regulations promulgated in 42 C.F.R. part 2 address the confidentiality of alcohol and drug abuse treatment records. 2 42 U.S.C. section 290ee-3 subdivision (a) provides with exceptions not relevant here: "Records of the identity, diagnosis, prognosis, or treatment of any patient...
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