Shaddox v. Bertani

• Decision Date: 30 July 2003
• Docket Number: No. A097480.,A097480.
• Citation: 2 Cal.Rptr.3d 808,110 Cal.App.4th 1406
• Court: California Court of Appeals Court of Appeals
• Parties: Ricky E. SHADDOX, Plaintiff and Appellant, v. Jeffrey J. BERTANI, Defendant and Respondent.

2 Cal.Rptr.3d 808

110 Cal.App.4th 1406

Ricky E. SHADDOX, Plaintiff and Appellant, v. Jeffrey J. BERTANI, Defendant and Respondent.

No. A097480.

Court of Appeal, First District, Division 4.

July 30, 2003.

Law Offices of Edwin J. Zinman, James J. Davis III, Edwin J. Zinman, San Francisco, for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Daniel J. Meagher, San Francisco, for Defendant and Respondent.

KAY, P.J.

The Confidentiality of Medical Information Act (Civ.Code,¹ § 56 et seq., hereafter CMIA) establishes the general principle that a patient's medical information shall not be disclosed by health care providers, subject to a number of mandatory and permissive exceptions. One of the enumerated permissive exceptions allows release of medical information "when the disclosure is otherwise specifically authorized by law" and uses, as an example, a voluntary report to the Food and Drug Administration. (§ 56.10, subd. (c)(14), hereafter subdivision (c)(14).) The issue presented here is whether a dentist treating a police officer who he suspects may have a problem with prescription drugs, can, without violating the CMIA, advise the officer's department of that suspicion.

We agree with the trial court that the dentist's communication with the officer's superiors was covered by subdivision (c)(14), and therefore not actionable. As will be explained, the dentist's communication is no different from the example used by the Legislature when it enacted subdivision (c)(14). We also agree with the trial court that a person enjoys absolute statutory immunity under section 47, subdivision (b)(3) for making a communication, which leads to an official investigation of a police officer's conduct or competence. By reason of these separate and independent grounds supporting the trial court's ruling, we will affirm the judgment in favor of the dentist.

BACKGROUND

Plaintiff Ricky Shaddox is a San Francisco Police Officer. Defendant Jeffrey J. Bertani, D.D.S., is a member of a San Francisco dental clinic. The details of their encounter on April 24, 1998, are largely without dispute.

Officer Shaddox has been a member of the San Francisco Police Department (SFPD) since 1989. On the first day of 1997 he suffered a work-related injury to the right side of his face. Thereafter he experienced constant pain and frequent bleeding from his mouth, nose, and ears. Along with consulting numerous physicians, Shaddox went to a dentist who is in practice with Dr. Bertani. Eventually a wisdom tooth was removed. Following the extraction, Vicodin was prescribed.² Shaddox's dental records show that the Vicodin prescription was refilled at least once. The records also show a notation in September 1997 of "No more meds/especially Vicodin*" and several refused requests for refills thereafter.

Prior to April 24, 1998, Dr. Bertani's sole contact with Officer Shaddox had been a telephoned prescription for antibiotics and a renewed Vicodin prescription for Shaddox (whom Bertani did not examine) in August of 1997. On the afternoon of April 24 Officer Shaddox was in uniform when he stopped at the clinic to make an appointment to see a dentist, but in plainclothes and off duty when he came in for the appointment at 4 p.m. Shaddox complained of severe pain, which "first occurred one month ago." The visit was brief, Dr. Bertani concluding that he "couldn't find any source of the pain" and that Shaddox merely needed his teeth cleaned. Shaddox then asked for "Vicodin-ES [Extra Strength]."³ Dr. Bertani declined to prescribe this medication. While leaving the examination room, Officer Shaddox again asked for Vicodin and again was rebuffed. According to Dr. Bertani, upon hearing the second refusal, Shaddox "gave this icy glare as if he wanted to ... beat me up." Dental assistants who observed Shaddox described him as "psycho," and told Dr. Bertani "It looked like he wanted to kick your ass."⁴

Dr. Bertani believed he was confronting "a dangerous situation" because "here is a police officer obviously very upset that I didn't give him narcotics. That to me is a dangerous situation. Dangerous to him, to the general public, to my staff." As soon as he was back in his office, Dr. Bertani called the SFPD and spoke to Inspector Waterfield, who was another of Bertani's patients. Dr. Bertani advised Waterfield that "I had a police officer in the office who had requested narcotics and what should I do about that." Waterfield transferred Bertani's call to a sergeant in the internal affairs department. An internal police memo summarizes the ensuing conversation: "Dr. Bertani told Sergeant Corriea that Officer Ricky Shaddox was in his dental office presenting with a subjective complainant [sic] of severe pain. Bertani could not find any objective support for Shaddox's complaint. Shaddox was requesting a prescription [for] Vicodin. Bertani reviewed his files and noted that Officer Shaddox had come to his office on previous occasions requesting pain medication. In fact, there was a note in Bertani's file made by another dentist in the office in September of 1997 directing that Shaddox not receive any other pain medication. [¶] Dr. Bertani's concern that Officer Shaddox might be dependent on prescription pain medication prompted his phone call to Inspector Waterfield . . . ."

As a result of the ensuing internal investigation, Officer Shaddox was disciplined for "improper conduct" in not complying with SFPD General Order 2.03 ("Drug Use By Members"), specifically the directive that "Any member using legal over-the-counter non-prescription drugs, or prescription drugs, who feels in any way impaired shall advise his/her supervisor of such impairment."⁵ At the time of trial three years later, Officer Shaddox was assigned to a desk job, not allowed to carry a firearm, and not allowed paid overtime. Shaddox believed the incident effectively ended any prospect of promotion.

Although during the SFPD's investigation Officer Shaddox professed relief and gratitude that his dependency was being addressed, he nevertheless filed a complaint for Dr. Bertani's alleged violation of the CMIA, invasion of privacy, intentional and negligent infliction of emotional distress. After a four-day bench trial, the court ruled that Dr. Bertani's actions were protected by subdivision (c)(14) and by subdivision (b). Shaddox perfected this timely appeal from that judgment.

REVIEW

The CMIA is primarily concerned with the release of a patient's medical information by a "provider of health care," which is defined in part as "any person licensed or certified pursuant to Division 2 (commencing with Section 500 of the Business and Professions Code" (§ 56.05, subd. (i)). Dentists are one of the healing arts professions covered by Division 2. (See Bus. & Prof.Code, § 1600 et seq., esp. § 1626 [unlawful to practice dentistry unless licensed by Board of Dental Examiners]; People v. Barben (1979) 88 Cal.App.3d 215, 219, 151 Cal.Rptr. 717.) The definition of "provider of health care" in the CMIA is the same used in numerous other statutes (e.g., Bus. & Prof.Code, § 657, subd. (d); §§ 43.9, subd. (d)(1), 1714.8, subd. (b), 3333.1, subd. (c)(1), 3333.2, subd. (c)(1); Code Civ. Proc., §§ 340.5, 364, subd. (f)(1); Health & Saf. Code, § 120261, subd. (f)), none of which have ever been construed to exclude dentists.⁶

Subdivision (c)(14)

The CMIA was originally enacted in 1979 and since then has been repeatedly and extensively amended. "Section 56 was originally enacted ... `to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.' [Citation.]" (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38, 32 Cal.Rptr.2d 200, 876 P.2d 999.) Section 56.10 has three essential parts. The first is subdivision (a), which states the general rule of confidentiality: "No provider of health care, health care service plan, or contractor shall disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c)." The second part of the statute is subdivision (b), which enumerates nine instances in which disclosure is mandatory ("shall disclose"). The final part is subdivision (c), which enumerates 17 types of situations where disclosure is permissive ("may disclose"). The 14th of these permissive exceptions to the general rule of nondisclosure is the one at issue here. It provides: "The information may be disclosed when the disclosure is otherwise specifically authorized by law, such as the voluntary reporting, either directly or indirectly, to the federal Food and Drug Administration of adverse events related to drug products or medical device problems."

Subdivision (c)(14) was enacted in three stages. It started as subdivision (c)(13) and provided that medical information could be disclosed "When the disclosure is otherwise specifically authorized by law." (Stats.1990, ch. 911, § 1, p. 3862). In 1994 this version was renumbered as subdivision (c)(14). (Stats.1994, ch. 700, § 3, p. 3381.) It emerged with its current wording in 1999. (Stats.1999, ch. 526, § 2.)⁷ Nothing in the history of these three enactments sheds any light on the Legislature's intent or purpose. Subdivision (c)(14) has not yet been construed in any reported decision.

The federal government has a longstanding policy of encouraging—and in some cases requiring—the reporting of harmful events and consequences resulting from the use of drugs and other products licensed by the Food and Drug Administration (FDA). (See 21 U.S.C. § 355b(a) [establishing toll-free number for "receiving reports of adverse events regarding drugs"]; § 360i(b)(1)(A) & (b)(1)B) [requiring reports of adverse information about devices "intended for human use"]; 21 C.F.R. § 310.305 (2003) [drug manufacturers and distributors...