Wood v. Superior Court

• Decision Date: 16 April 1985
• Court: California Court of Appeals Court of Appeals
• Parties: William O. WOOD, M.D., Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent, BOARD OF MEDICAL QUALITY ASSURANCE, Real Party in Interest. William LINN, M.D., Petitioner, v. The SUPERIOR COURT of Sacramento, Respondent. BOARD OF MEDICAL QUALITY ASSURANCE, Real Party in Interest. Civ. 21801.

Page 811

212 Cal.Rptr. 811

166 Cal.App.3d 1138

William O. WOOD, M.D., Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent, BOARD OF MEDICAL QUALITY ASSURANCE, Real Party in Interest.

William LINN, M.D., Petitioner, v. The SUPERIOR COURT of Sacramento, Respondent.

BOARD OF MEDICAL QUALITY ASSURANCE, Real Party in Interest.

Civ. 21801.

Court of Appeal, Third District, California.

April 16, 1985.

Review Denied June 20, 1985.

Robert J. Sullivan, Mary A. O'Gara, Sacramento, Bealisa S. Naegele, San Jose, Turner & Sullivan, and Thomas W. Martin, Jr., Sacramento, for petitioners.

No appearance for respondent.

John K. Van de Kamp, George Deukmejian, Attys. Gen., Robert C. Cross and Steven M. Kahn, Deputy Attys. Gen., for real party in interest.

BLEASE, Acting Presiding Justice.

In this consolidated proceeding we consider the authority of the Board of Medical Quality Assurance (Bus. & Prof.Code, § 2001) to subpoena the medical records of a physician's patients without their consent. The board, in the course of investigations of Drs. Wood and Linn (petitioners), issued administrative subpoenas (Gov.Code, § 11181) requiring them to produce the complete medical records of named patients. Each refused to comply and the board sought judicial enforcement of the subpoenas. (Gov.Code, § 11187.) The trial court upheld the board and ordered compliance with the subpoenas. Each doctor petitioned this court for a writ of mandate overturning the orders. Although the orders requiring compliance with the subpoenas are appealable as final judgments in special proceedings (Franchise Tax Board v. Barnhart (1980) 105 Cal.App.3d 274, 277, 164 Cal.Rptr. 331, we have issued alternative writs which are conclusive of petitioners' entitlement to extraordinary relief. We will grant the relief requested on the ground that the board has not shown sufficient cause for the judicial enforcement of its subpoenas.

Facts

The board is charged with the duty of investigating claims of unprofessional conduct. (Bus. & Prof.Code, § 2220.) It conducts routine audits of pharmacy records of prescriptions for Schedule II controlled substances. ¹ (Bus. & Prof.Code, § 4331.) The audits of prescriptions written by petitioners made board investigators suspicious of the propriety of their issuance. Health and Safety Code section 11210 provides that a physician may only prescribe controlled substances with a good faith belief that it is a required treatment for a patient's ailment and only in a quantity and for a time that is reasonably necessary. A violation of this provision is unprofessional conduct (Bus. & Prof.Code, § 2238, former § 2391.5 [Stats. 1947, c. 309, p. 867, § 1] ) and subjects the violator to disciplinary action by the board (Bus. & Prof.Code, § 2234, former § 2361 [Stats.1937, c. 414, p. 1377] ). The board issued administrative subpoenas for "the complete medical records pertaining to" 16 of Wood's patients and 36 of Linn's patients who had been prescribed Schedule II drugs in circumstances deemed suspicious by board personnel. The ground of these suspicions is set forth in the affidavits tendered in support of the respective subpoenas.

The Wood Subpoena

The declaration of Lynn Sullivan, an investigator for the board, alleges she was "conducting a routine pharmacy audit at Galt Pharmacy" in June 1981, when a pharmacist referred her to "numerous prescriptions for large quantities of Demerol written by" Dr. Wood for a patient. The pharmacist told Sullivan "he believed [the patient] is receiving excessive doses of Demerol." Sullivan then obtained copies from the Department of Justice of all Schedule II controlled substance prescriptions written by Wood from April 1980, through March 1981. In her opinion a review of these prescriptions showed Wood was prescribing larger quantities of these drugs and for longer periods than usual for a general practitioner in the community. Sullivan went to various additional pharmacies to collect information on Wood's prescription practices. She compiled information on 16 patients for whom Wood had prescribed Schedule II controlled substances. Her declaration lists each patient, the drugs prescribed, and the duration of the prescription. In most instances she relates a brief notation of the purpose for the prescription ostensibly written thereon by Wood, e.g. "insomnia", "chronic shoulder disease", "pain", "sleep", "nerves and hypertensive behavior." Additionally, she avers that a pharmacist at the All-Med Pharmacy told her one of the listed patients was diagnosed by Wood as having narcolepsy and had been receiving Ritalin for three to four years. The pharmacist "questioned" the diagnosis and said he believed the patient is addicted to the drug and "may" be abusing it.

The other declaration in support of the Wood subpoena is that of Dr. Schwamb, a board medical consultant. He reviewed the evidence compiled by Sullivan and concludes "because of the definite possibility of excessive prescribing of controlled drug substances ... in my professional opinion there is a need to obtain the medical records of these patients ... for further review as to the medical indications for the prescribing of the controlled drug substances and to clarify the medical reasons for the apparent excessive amounts of controlled drug substances being prescribed and to see if appropriate medical conditions or pathology exists to warrant such prescribing and whether good faith physical examinations are being performed initially and in the course of continued prescribing."

Wood opposed enforcement of the subpoena by filing, inter alia, declarations of six local physicians, all of whom asserted that the facts listed in the Sullivan and Schwamb declarations did not "per se" indicate improper prescribing practices in the community. They each could conceive of a variety of circumstances in which the types and amounts of medications prescribed would be appropriate. Each claimed he was an experienced practitioner (from 12 to 26 years experience) and was familiar with the medications in question.

Wood also submitted the declarations of two pharmacists from the All-Med Pharmacy. Both emphatically denied telling Sullivan the patient was addicted to Ritalin or questioning the diagnosis. One pharmacist declared the patient was a regular customer of All-Med and neither "his demeanor or the amount of Ritalin consumed appeared abnormal at any time."

The Linn Subpoena

The declaration of Harold Keener, a board investigator, states: "an investigation was assigned to me that was initiated by the Sacramento County Sheriff's Office and the Bureau of Narcotic Enforcement. Allegations are Dr. Linn is prescribing large amounts of Schedule II controlled substances to various persons over extended periods of time." Keener interviewed various pharmacists and obtained copies of Linn's Schedule II controlled substances prescriptions. He compiled profiles for 36 patients listing drugs prescribed and durations. Again, some patients' prescriptions contained brief notations of reasons for the prescriptions, e.g. "appetite", "severe pain." Keener interviewed Linn concerning the 36 patients. He obtained "information" (no further specification provided) during the interview concerning six of the patients indicating Linn "may" be guilty of repeated acts of clearly excessive prescribing of drugs as determined by the standard of the local community of doctors. Keener supplied his compiled information on the patients' prescriptions to Dr. Schwamb.

Schwamb's declaration relates the information he received from Keener and avers for each patient some variation of the formula opinion: "The medical record should be procurred [sic] to ascertain any medical condition warranting such a long duration of prescribing such large amounts of the controlled drug." Five of the formula opinions contain the allegation that the different drugs prescribed for the patient have contradictory effects.

Linn refused to comply with the subpoena. He opposed judicial enforcement, claiming the amounts and types of prescriptions were not in excess of those dictated by the patients' needs. Linn submitted the declaration of Dr. McKibbin, a surgeon to whom some of the patients had been referred for consultation. McKibbin had retired two years before. He declared he had practiced medicine for 34 years and that, of the hundreds of patients (unidentified) referred to him by Linn, none had been prescribed excessive amounts of medication.

Discussion

I.

Petitioners challenge the enforcement of the subpoenas on several grounds. They first argue that the board is denied authority to subpoena the records of patients from a physician's office by Business and Professions Code section 2225. ² They rely on this provision: "The board's authority to examine records of patients in the office of a physician ... is limited to records of patients who have complained to the board about [the physician]." (Emphasis added.) This proviso is susceptible to two readings: "in the office" either specifies the source of the records to be examined or the place of their examination. The petitioners read it the first way, as a blanket denial of access, absent a patient complaint, to records which are located in the office of the physician. The board reads it the second way, as a prohibition against rummaging through patient records in the office of the physician. This latter reading permits access by subpoena to patient records without patient complaint. We adopt this as the correct reading.

The proviso at issue in section 2225 is conditioned by this sentence: "Notwithstanding Section 2263 and any other provision of law making a communication between a physician ... and his or her patients a privileged communication, such provisions shall not apply to investigations or proceedings conducted under this chapter." (Ibid.; emphasis added) It stems from a reorganization of the Medical Practice Act (Stats.1980, ch....