Rademan v. Superior Court
| Decision Date | 22 January 2001 |
| Docket Number | No. B143617.,B143617. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alan N. RADEMAN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Ron Joseph et al., Real Parties in Interest. |
Lewin & Levin, Mark A. Levin, Henry Lewin, Los Angeles, Debra L. Grossman, Chelmsford, MA; Greines, Martin, Stein & Richland, Marc J. Poster and Barbara Springer Perry, Beverly Hills, for Petitioner.
Law Offices of Daniel H. Willick and Daniel H. Willick, Los Angeles, for California Psychiatric Association as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Bill Lockyer, Attorney General, Carlos Ramirez, Senior Assistant Attorney General, Adrian K. Panton, Supervising Deputy Attorney General and Karen B. Chappelle, Deputy Attorney General, for Real Parties in Interest.
A pharmacist filed a complaint with the medical board claiming a psychotherapist had been prescribing unusually large quantities of drugs and controlled substances to certain of his patients. The board began investigating the psychotherapist for possible illegal acts and issued a subpoena duces tecum for the questioned patient files. The psychotherapist resisted the subpoena, asserting his patients' privacy interests and psychotherapist-patient privilege. The board sought and obtained a court order directing the psychotherapist to release the patient files to the board. The psychotherapist seeks a writ of mandate to vacate the trial court's order. We hold to the extent the crime/tort exception applies, the psychotherapist-patient privilege is unavailable and any information in those patient files within the exception may be made available to the board for its investigation. Accordingly, we grant the writ to vacate the trial court's order releasing the files in their entirety to the board, and direct the court to conduct an in camera review of the files to determine the applicability of the crime exception as it may be applied in this case.
Ms. Joanna Lalich is a licensed pharmacist employed by Walgreen's (store # 4052). According to Ms. Lalich's declaration, on November 4, 1998, she received a prescription written by petitioner Dr. Alan N. Rademan for patient W.N. It authorized W.N. to receive Tylenol with Codeine number four and Vicodin ES (750 mg.) both for quantities of 250 pills, to be taken every four hours. W.N. admitted to Ms. Lalich he was a drug addict.
On learning this information Ms. Lalich called Dr. Rademan and asked him whether the prescription written for W.N. was legitimate. When Dr. Rademan stated it was, Ms. Lalich informed him the patient had admitted to being a drug addict. According to Ms. Lalich, Dr. Rademan directed her to give W.N. what he wanted. Ms. Lalich refused to fill the prescription.
In her declaration, Ms. Lalich also stated another of Dr. Rademan's patients, D.B., "repeatedly visits the pharmacy, requesting controlled medication for migraines, and Dr. Rademan automatically refills whatever patient D.B. requests."
On November 5, 1998, Ms. Lalich filed a complaint against Dr. Rademan with the Medical Board of California, Department of Consumer Affairs (Board).
In December 1999 the Board began its investigation of the charges against Dr. Rademan. An investigator for the Board interviewed several Walgreen's pharmacists. Pharmacist Lalich reaffirmed her earlier accusations. In his declaration, Pharmacist Paul Harris stated every few weeks patient W.N. visited the pharmacy and "had prescriptions filled for an unusually large amount of medicine." Pharmacist Harris stated most of these prescriptions were written by Dr. Rademan, but patient W.N. also had other doctors who sometimes prescribed him the same substances. Pharmacist Harris noted patient W.N. had been prescribed these medicines for a long period of time and the pharmacist found it unusual the amount of medicines prescribed had not decreased over time.
He contacted Dr. Rademan to express his concerns. Dr. Rademan informed the pharmacist to keep filling the prescriptions "because patient W.N. was a former heroin user who was `detoxifying.'" Although Dr. Rademan stated he would be decreasing the amount of medicine prescribed patient W.N. in the future, pharmacist Harris noted the prescriptions did not decrease, and as a result, the pharmacy refused to continue to fill Dr. Rademan's prescriptions for patient W.N.
The Board investigator interviewed Robin Gardner, a licensed pharmacist also employed by Walgreen's. According to her declaration, she noticed patient D.B. visited the pharmacy frequently and had "prescriptions filled for a lot of medicines." The pharmacist stated most of patient D.B.'s prescriptions were written by Dr. Rademan, but patient D.B. "also had other doctors who prescribed her the same medicine, but not as frequently." When pharmacist Gardner informed Dr. Rademan other doctors were prescribing patient D.B. the same medications Dr. Rademan told her to continue filling patient D.B.'s prescriptions.
The Board investigator conducted an audit of Walgreen's Pharmacy (store # 4052) and obtained the original prescriptions written by Dr. Rademan for patients W.N. and D.B. The audit of this pharmacy revealed Dr. Rademan wrote prescriptions for patient D.B. as follows:
11-14-97 50 Hydrocodone, 7.5 mg. tablets
11-21-97 50 Hydrocodone, 7.5 mg. tablets
1-19-98 50 Hydrocodone, 10 mg. tablets
3-25-98 30 Alprazolam, 2 mg. tablets
3-31-98 50 Hydrocodone, 5 mg. tablets
4-8-98 60 Hydrocodone, 10 mg. tablets
4-29-98 50 Alprazolam, 2 mg. tablets and 50 Temazepam, 30 mg. tablets
5-26-98 50 Alprazolam, 2 mg. tablets
6-15-98 60 Hydrocodone, 10 mg. tablets
11-20-98 25 Clonazepam, 2 mg. tablets
11-30-98 60 Hydrocodone, 10 mg. tablets
12-8-98 60 Hydrocodone, 30 mg. tablets
12-14-98 60 Temazepam, 10 mg. tablets
1-14-99 60 Hydrocodone, 10 mg. tablets
9-26-99 50 Alprazolam, 2 mg. tablets
This pharmacy also had records of prescriptions Dr. Rademan had written for patient W.N.:
6-1-98 42 Klonopin, 2 mg. tablets
3-1-99 150 Acetaminophen with Codeine tablets
The investigator for the Board also conducted an audit of another Walgreen's Pharmacy (store #4239). The audit revealed Dr. Rademan wrote prescriptions for patient W.N. as follows:
5-28-98 50 Klonopin, 2 mg. tablets
5-29-98 58 Klonopin, 2 mg. tablets and 100 Carisoprodol, 350 mg. tablets
6-11-98 100 Klonopin, 2 mg. tablets and 100 Carisoprodol, 350 mg. tablets
6-18-98 150 Diazepam, 10 mg. tablets
6-19-98 100 Carisoprodol, 350 mg. tablets
7-24-98 200 Diazepam, 10 mg. tablets
8-16-98 100 Carisoprodol, 350 mg. tablets
10-29-98 200 Carisoprodol, 350 mg. tablets and 200 Diazepam, 10 mg. tablets
11-25-98 200 Carisoprodol, 350 mg. tablets and 200 Diazepam, 10 mg. tablets
2-22-99 150 Acetaminophen with Codeine tablets
3-10-99 100 Klonopin, 2 mg. tablets
Dr. Erich W. Pollak, the district medical consultant of the enforcement unit of the Board, reviewed the results of the Board's preliminary investigation, including the investigative report, the complaint letter from pharmacist Lalich, the patient profiles which Ms. Lalich supplied, and the Walgreen's stores' prescription records for these patients. Dr. Pollak noted Acetaminophen with Codeine, Diazepam, Lortab S, Hydrocodone, Alprazolam and Temazepam are all controlled substances. Based on this material, the doctor opined there was good cause to believe Dr. Rademan had violated the Medical Practice Act by prescribing without good medical reason, by excessively prescribing, by prescribing to an addict, and by treating migraine headache in violation of the Intractable Pain Treatment Act. To determine whether any of these violations actually occurred, Dr. Pollak stated it would be necessary to review these patients' medical records to determine whether and why prescribing these substances was medically indicated.
Both patients refused to consent to release of their records. Dr. Rademan asserted the psychotherapist-patient privilege and refused to comply with the Board's investigative subpoena duces tecum for the patients' medical records.
The Board filed a petition to enforce its investigational subpoena. The Board claimed it had a right to review the records as part of its disciplinary and enforcement responsibilities authorized under Business and Professions Code section 2200 et seq. In addition, the Board argued Business and Professions Code section 2225 makes the physician-patient privilege inapplicable to the Board's investigative activities in any event.
Dr. Rademan filed an opposition to the petition. Dr. Rademan supplied a declaration in response to the pharmacists' declarations stating: (1) although he did not specifically recall the conversation, he does not write prescriptions "on request" but only after an appropriate evaluation of the patient's psychiatric/medical condition; (2) although he has no specific recollection, it would not be his manner to tell a pharmacist patient W.N. was a detoxifying former heroin user; and (3) no pharmacist ever informed him patient D.B. was receiving prescriptions from other doctors for the same medications he was prescribing.
At the initial hearing on the motion, the trial court noted perhaps everything in the patients' medical records was unnecessary to the investigation and suggested records redacting sensitive and irrelevant material would be sufficient. Counsel for the Board confirmed it was only interested in information bearing on diagnosis and the purpose for prescribing these medicines.
The Board claimed it was entitled to these records under the authority of Business and Professions Code section 2225. This section provides: "Notwithstanding ... any other provision of law making a communication between a physician and surgeon or a podiatrist and his or her patients a privileged communication, those provisions shall not apply to investigations...
To continue reading
Request your trial