Board of Medical Quality Assurance v. Gherardini

• Decision Date: 16 May 1979
• Parties: DIVISION OF MEDICAL QUALITY, BOARD OF MEDICAL QUALITY ASSURANCE, etc., Petitioner and Respondent, v. Mel GHERARDINI and Mount Helix General Hospital, Respondents and Appellants. Civ. 16600.
• Court: California Court of Appeals Court of Appeals

Page 55

156 Cal.Rptr. 55

93 Cal.App.3d 669

DIVISION OF MEDICAL QUALITY, BOARD OF MEDICAL QUALITY ASSURANCE, etc., Petitioner and Respondent, v. Mel GHERARDINI and Mount Helix General Hospital, Respondents and Appellants.

Civ. 16600.

Court of Appeal, Fourth District, Division 1, California.

May 16, 1979.

As Modified on Denial of Rehearing June 5, 1979.

Hearing Denied Aug. 8, 1979.

Alexander R. Tobin and John T. Borje, Upland, for respondents and appellants.

Evelle J. Younger, Atty. Gen., and David L. Chandler, Deputy Atty. Gen., for petitioner and respondent.

STANIFORTH, Acting Presiding Justice.

Mount Helix General Hospital and Mel Gherardini, custodian of records, appeal an order granting a petition of the Division of Medical Quality of the Board of Medical Quality Assurance (Medical Board), ¹ commanding appellants to testify and produce hospital records and documents pertaining to five named patients. ²

FACTS

The Medical Board would examine the complete medical-hospital records of five named patients of a San Diego doctor a licensee of the Medical Board. The investigator's declaration in support of the subpoena duces tecum alleges: I am conducting an investigation involving an allegation of gross negligence and/or incompetence in the treatment of patients" by the named doctor and continues: " The medical records . . . may offer evidence to substantiate the . . . allegations . . . ." The declarations allege neither patient consent nor complaint. There is no specification of any charge by a fellow physician or member of the public. No facts support the conclusionary statements. The records sought are hospital records kept by Mount Helix General Hospital (Mt. Helix). Upon Mt. Helix's refusal to surrender the records, the Medical Board sought and obtained, after hearing, the challenged superior court order.

CONTENTIONS

Mt. Helix's refusal to surrender the records is based upon (1) the failure of the subpoena to allege facts amounting to reasonable and probable cause; (2) the patient-physician privilege (Evid.Code, §§ 990-1007); and (3) the patient's right of privacy found in the Bill of Rights of the United States Constitution and article I, section 1, of the California Constitution.

The Medical Board contends (a) "reasonable cause" need not be shown before compliance with the subpoena is required, (b) the patient-physician privilege does not apply in an investigation by the Medical Board, and (c) there is no constitutional objection to such a system.

The Medical Board concedes the patient-physician privilege, but contends Evidence Code section 1007 makes it inapplicable here; that section provides:

"There is no privilege under this article in a proceeding brought by a public entity to determine whether a right, authority, license, or privilege (including the right or privilege to be employed by the public entity or to hold public office) should be revoked, suspended, terminated, limited, or conditioned."

The Medical Board contends this statutory exception "squarely" applies and authorizes the subpoena here. The Medical Board reasons as follows: Evidence Code section 901 defines a "proceeding" as "any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given"; an investigation under Government Code section 11180 is a proceeding within the meaning of Evidence Code section 901, since testimony can be compelled pursuant to Government Code section 11181(e); and concludes the doctor-patient privilege does not apply in an investigative proceeding conducted under Government Code section 11180 when the purpose of the investigation is to determine if a right, authority, license, or privilege should be revoked, suspended, terminated, limited, or conditioned. (59 Ops.Cal.Atty.Gen. 186, 194-195.)

The Medical Board further asserts that in order to compel testimony and production of documents pursuant to an administrative investigative subpoena, all that need be shown is that an investigation is under way. Brovelli v. Superior Court, 56 Cal.2d 524, 529, 15 Cal.Rptr. 630, 633, 364 P.2d 462, 465, cited in support of this proposition, declares:

"There is no constitutional objection to a system under which the heads of departments of government may compel the production of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate 'merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.' (Citation.) Of course, department heads cannot compel the production of evidence in disregard of the privilege against self-incrimination or the constitutional provisions prohibiting unreasonable searches and seizures. . . . Insofar as the prohibition against unreasonable searches and seizures can be said to apply at all It requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. (Citations.)" (Italics added.)

(See also Shively v. Stewart, 65 Cal.2d 475, 479, 55 Cal.Rptr. 217, 421 P.2d 65; People v. West Coast Shows, Inc., 10 Cal.App.3d 462, 470, 89 Cal.Rptr. 290; Fiedler v. Berkeley Properties Inc., 23 Cal.App.3d 30, 40, 99 Cal.Rptr. 791.)

DISCUSSION

The right of the Medical Board to investigate, to reasonably regulate the licensee-doctor is not in dispute, but here the rights of the Patient are under scrutiny. Therefore, we confront a threshold question of the right of Mt. Helix to assert the statutory privilege or constitutional rights to privacy on behalf of the patient who, insofar as the record reflects, has not been notified of the Medical Board's desire to look at the data or consented to such an examination by the investigators. Mt. Helix, a third party recipient of privileged matter, has standing to claim the privilege on behalf of the absent non-consenting patient (Rudnick v. Superior Court, 11 Cal.3d 924, 933, fn. 12, 114 Cal.Rptr. 603, 523 P.2d 643) ³ and under the "vicarious exclusionary rule" to object to the admission of evidence obtained in violation of another's constitutional rights (Kaplan v. Superior Court, 6 Cal.3d 150, 155-157, 98 Cal.Rptr. 649, 491 P.2d 1).

Since the Brovelli decision, the United States Supreme Court in Katz v. United States, 389 U.S. 347, 350-352, 88 S.Ct. 507, 19 L.Ed.2d 576, added a new dimension to search and seizure law. The individual is protected under the Fourth Amendment to the federal Constitution from governmental intrusion where (1) he has exhibited a reasonable expectation of privacy, and (2) that expectation had been violated by an unreasonable government intrusion. The Katz concepts parallel similar reasoning with roots in the California Constitution (article I, section 13) prohibiting unreasonable searches and seizures. While the Katz rule grows from a criminal setting, these parallel constitutional provisions protect the individual in as yet unmeasured, unexplored non-criminal fact settings where the individual has a reasonable expectation of privacy from state intrusion. (See Burrows v. Superior Court, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590; White v. Davis, 13 Cal.3d 757, 774, 120 Cal.Rptr. 94, 533 P.2d 222; People v. Krivda, 5 Cal.3d 357, 364-365, 96 Cal.Rptr. 62, 486 P.2d 1262; People v. Doyle, 77 Cal.App.3d 126, 128, 141 Cal.Rptr. 639.)

The Brovelli decision also was written before Griswold v. State of Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 where the United States Supreme Court declared: "(S)pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. (Citation.) Various guarantees create zones of privacy."

The breath of the concept of privacy enunciated by Griswold v. State of Connecticut has been upheld in a multitude of fact contexts (White v. Davis, 13 Cal.3d 757, 774, fn. 10, 120 Cal.Rptr. 94, 533 P.2d 222) but as yet remain a concept of as yet "undetermined parameters" albeit in process of almost daily growth. (See Tavernetti v. Superior Court, 22 Cal.3d 187, 194-195, 148 Cal.Rptr. 883, 583 P.2d 737; Burrows v. Superior Court, 13 Cal.3d 238, 247, 248, 118 Cal.Rptr. 166, 529 P.2d 590.)

Further, the Brovelli rule must be examined in light of article I, section 1, of the California Constitution wherein the people of this state mandate express constitutional protection to the individual's right of privacy. Article I, section 1 (as reworded by constitutional amendment in Nov. 1974) now reads: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

This constitutional amendment reflects "the public policy favoring the protection of privacy rights" and "(t)his forceful expression of the constitutional stature of privacy rights reflects a concern previously evinced by the Legislature in enacting the invasion of privacy provisions of the Penal Code. The Legislature expressly declared its intent 'to protect the right of privacy of the people of this state.' (Pen.Code, § 630.)" (Tavernetti v. Superior Court, supra, 22 Cal.3d 187, 194, 148 Cal.Rptr. 883, 888, 583 P.2d 737, 742.)

This constitutional amendment did more than declare an already existing right.

"The elevation of the right to be free from invasions...