The opinion
Filed 05/01/2017
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ALISA CROSS, B277600
Petitioner, (Super. Ct. No. BS160696)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
AWET KIDANE, DIRECTOR,
DEPARTMENT OF CONSUMER
AFFAIRS, et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Robert Hess,
Judge. Petition granted in part and denied in part.
Baranov & Wittenberg, Gary Wittenberg, for Petitioner.
No appearance for Respondent.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gloria L. Castro, Senior Assistant Attorney General, Judith T.
Alvarado, Supervising Deputy Attorney General, Christine R.
Friar, Deputy Attorney General, for Real Parties in Interest.
Alisa Cross (petitioner) is a physician, one who specializes
exclusively in psychiatry. The California Department of
Consumer Affairs (Department), the governmental agency that
houses the Medical Board of California (Board), served petitioner
with subpoenas to further its investigation into whether she
improperly prescribed controlled substances to three people who
are ostensibly her patients. Petitioner refused to produce the
subpoenaed medical records, citing the psychotherapist-patient
privilege and the patients‟ constitutional right to privacy. The
Department then filed a petition to compel compliance with the
subpoenas, which the trial court granted—reasoning that a
provision of the Medical Practice Act precluded petitioner from
relying on the psychotherapist-patient privilege in a Board
investigation, and that there was good cause to require
production of the records notwithstanding the patients‟ privacy
rights. These two issues—the applicability of the
psychotherapist-patient privilege in a Board investigation into
improper prescribing of controlled substances, and the sufficiency
of the Department‟s showing to overcome the patients‟ right to
privacy—are the same issues before us in this proceeding.
I
A
The Board is a creature of statute. (Bus. & Prof. Code, §
2001.) It is a 15-member body located within the Department
and it is charged with protecting the public through, among other
things, issuing medical licenses and certificates, reviewing the
quality of medical practice carried out by licensed physicians, and
enforcing the disciplinary and criminal provisions of the Medical
Practice Act, i.e., Business & Professions Code section 2000 et
2
seq. (Bus. & Prof. Code, §§ 2001.1, 2004, 2220.) The practice of
medicine without a valid certificate issued by the Board (or a
certificate issued in accordance with some other provision of law)
is a criminal offense. (Bus. & Prof. Code, §§ 2051, 2052.) By
virtue of the Medical Practice Act and other laws (and with
certain exceptions not relevant here), only physicians may
prescribe drugs to patients; psychologists and other mental
health professionals may not. (Bus. & Prof. Code, §§ 2051, 2052,
2904; Health & Saf. Code, § 11150.)
The Director of the Department is authorized to investigate
all matters under the Department‟s jurisdiction, and to issue
subpoenas in furtherance of such investigations. (Gov. Code, §§
11180, 11181, subd. (e); Arnett v. Dal Cielo (1996) 14 Cal.4th 4,
8.) Disciplinary investigations under the Medical Practice Act
are conducted jointly by Board personnel, Department
investigators (pursuant to authority delegated from the
Department‟s Director), and the Health Quality Enforcement
Section of the Attorney General‟s office.1 (Bus. & Prof. Code, §§
2006, 2220; Gov. Code, §§ 12529.6, 11182.) Unprofessional
conduct by a physician that is subject to investigation includes
the violation of any provision of the Medical Practice Act, gross
negligence, “[r]epeated acts of clearly excessive prescribing . . . of
drugs,” and “[p]rescribing, dispensing, or furnishing dangerous
drugs as defined in Section 4022 without an appropriate prior
examination and a medical indication . . . .” (Bus. & Prof. Code,
§§ 725, 2234, 2242; see also Bus. & Prof. Code, §§ 2220.05, subd.
1
The Board is the only licensing board authorized to
investigate or commence disciplinary actions against physicians
licensed to practice in this State. (Bus. & Prof. Code, § 2220.5.)
3
(a) [prioritizing the investigation of [“[r]epeated acts of clearly
excessive prescribing, furnishing, or administering of controlled
substances, or repeated acts of prescribing, dispensing, or
furnishing of controlled substances without a good faith prior
examination of the patient and medical reason therefor”], 4022
[“dangerous drugs” are those requiring a prescription].)
B
In May 2014, the Board received a “consumer complaint”
alleging petitioner, a Board licensed physician since 1995, was
overprescribing psychotropic medication.2 Staff in the Board‟s
consumer complaint unit obtained a Controlled Substance
Utilization Review and Evaluation System (CURES) report that
listed the Schedule II-IV controlled substance prescriptions
written by petitioner over the prior three years, as well as the
patients for whom the prescriptions were written.3 A consultant
working with the Board‟s complaint unit recommended further
2
The Board treats such complaints as confidential unless
and until it decides to institute formal disciplinary proceedings
against a physician. No further information about the complaint
is included in the record, nor was any such information produced
to petitioner.
3
California divides controlled substances into one of five
schedules, which are intended to group the drugs according to
their potential for abuse and the degree to which they have an
accepted medical use. (Health & Saf. Code, §§ 11054-11058; see
generally 2 Witkin & Epstein, California Criminal Law (4th ed.
2012) Crimes Against Public Peace and Welfare, § 85, pp. 728-
729.)
4
investigation, and the matter was referred to Department
investigator Ellen Coleman.
Investigator Coleman asked Dr. Cheryl Gray to review the
CURES report in an effort to identify people for whom petitioner
may have been over-prescribing controlled substances. Dr. Gray
is a licensed physician who is board certified in internal medicine
and employed by the Department as a medical consultant.
Because one of her duties is to review questionable medical and
surgical practices by physicians licensed by the Board, she is
responsible for maintaining familiarity with the standard of
medical practice in California.
Dr. Gray identified three individuals listed in the CURES
report as people to whom petitioner may have prescribed
controlled substances in a manner that appeared to be
inconsistent with the standard of care: M.L., L.R., and J.M.B. All
three patients were prescribed central nervous system
stimulants, which are Schedule II controlled substances—drugs
that have a high potential for abuse that may lead to severe
psychological or physical dependence.
Patient M.L., an adult female, received 120 tablets of 20 mg
Adderall each month from June 22, 2013, to June 11, 2014.
Adderall, an amphetamine salt combination drug, is
predominantly used to treat Attention-Deficit Hyperactivity
Disorder (ADHD) and narcolepsy. In Dr. Gray‟s opinion, the
dispensation reflected in the CURES report appeared to suggest
M.L. took four Adderall tablets per day, which would mean a
daily dose of 80 mg of the drug. Dr. Gray consulted multiple
prescription drug reference sources, including the Physician‟s
Desk Reference, that indicated this 80 mg amount exceeded the
maximum daily recommended dosage for treatment of ADHD,
5
which “would rarely require more than 40 mg per day,” and
narcolepsy, which had a total daily recommended dosage of 60
mg.
Petitioner prescribed patient L.R., also an adult female,
120 tablets of 30 mg Adderall each month from March 1, 2012, to
July 27, 2012. Dr. Gray believed this appeared to indicate L.R.
took four tablets per day, or a total of 120 mg daily. Dr. Gray
opined this daily dosage level was three times the total
recommended daily dosage of Adderall for treatment of ADHD
and in excess of the recommended maximum daily dosage for
treatment of narcolepsy.
J.M.B., the third patient identified by Dr. Gray from the
CURES report, received 60 tablets of 20 mg Adderall each month
from April 1, 2013, to June 27, 2013. Dr. Gray believed this
appeared to indicate J.M.B., also an adult female, took two
tablets a day, which equaled the maximum recommended daily
dosage for treating ADHD (and was less than the maximum
recommended daily dosage for narcolepsy). However, the CURES
report also indicated petitioner prescribed 30 capsules of 40 mg
Vyvanse for J.M.B. during the same time period. Vyvanse is also
a central nervous system stimulant, one that is considered
“longer acting.” Dr. Gray believed the Vyvanse prescription data
indicated J.M.B. took 40 mg of the drug on a daily basis, in
addition to the Adderall tablets. It was unclear to Dr. Gray why
Vyvanse had been prescribed because it was not indicated for use
in treating narcolepsy.
Investigator Coleman mailed forms to each of the three
patients that, if signed, would authorize the Board to obtain their
medical and psychiatric records from petitioner for use in the
Board‟s investigation. The correspondence from Investigator
6
Coleman further notified the patients that if the Board did not
receive executed releases for the medical records, the Board
would subpoena the records. Investigator Coleman received no
response from L.R. and J.M.B. Investigator Coleman also
received no returned authorization from M.L., but Investigator
Coleman did reach her by phone. According to Investigator
Coleman, M.L. said she had never been treated by petitioner.
The Department thereafter issued three subpoenas for the
medical records of M.L., L.R., and J.M.B. The subpoenas
demanded records pertaining to the identical time periods Dr.
Gray identified in the CURES report as being of interest, i.e., for
approximately one year for M.L.; for almost five months for L.R.;
and for almost three months for J.M.B. The subpoenas were
drafted to require production of “the complete medical record” for
the patients during these time periods. According to the terms of
the subpoenas, the “complete medical record includes, but is not
limited to: [¶] 1. all medical and psychiatric histories, diagnoses,
treatment notes and records, physical examinations, test results,
orders, prescription records, operative reports, consultation
records, nursing notes; [¶] 2. all x-ray films and reports, MRIs
and reports, CT scans and reports; [¶] 3. all pathology reports
and laboratory data; [¶] 4. all correspondence, doctor-patient
agreements, memorandums, releases, telephone messages; [¶] 5.
all billing records; and [¶] 6. all other data, information or record
which would reveal all medical care provided to the patient.”
Investigator Coleman served the subpoenas on petitioner,4
and petitioner, through counsel, declined to produce any of the
4
Investigator Coleman also mailed copies of the subpoenas
to the three patients, advising each of their right to object. None
7
subpoenaed records. Petitioner informed Investigator Coleman
she had contacted both M.L. and J.M.B., both of whom told
petitioner they did not consent to their records being released to
the Board. Without either M.L. or J.M.B.‟s consent, and having
been unable to reach L.R., petitioner took the position she was
unable to release the subpoenaed records in light of the
physician-patient and psychotherapist-patient privileges.
C
The Department filed a petition in the superior court to
compel petitioner‟s compliance with the investigative subpoenas.
The petition averred the medical records of the three patients
were “essential” to the Board‟s ability to properly assess whether
petitioner‟s treatment of the patients accorded with medical
standards of care, and that without the subpoenaed records the
Board “cannot fulfill its monitoring responsibilities of public
protection, as mandated by California law.” The Department‟s
petition was supported by declarations from Investigator
Coleman and Dr. Gray.
Dr. Gray opined the prescription patterns for M.L., L.R.,
and J.M.B., “in the absence of any other information, appear to
represent concerning departures from the standard of care” for
prescribing the central nervous system stimulants at issue, which
have “a high potential for abuse.” Dr. Gray noted that the
stimulants prescribed had been associated with adverse health
effects, including “sudden death, stroke and myocardial infarction
in adults.” Dr. Gray‟s opinion that petitioner may have violated
of the patients contacted Investigator Coleman or appeared in the
court proceedings that ensued to enforce the subpoenas.
8
the Medical Practice Act was also influenced by her review of
records indicating petitioner had been the subject of a prior
disciplinary proceeding in Texas.5
In Dr. Gray‟s opinion, any circumstances or conditions that
would require dosages or quantities of the prescribed stimulants
outside the customary range should be documented by the
prescribing physician. Dr. Gray also explained other steps a
physician must take, consistent with the standard of care, when
prescribing the medications: “Prior to prescribing [these drugs]
to an adult, a targeted cardiac history looking for previously
diagnosed cardiac disease, any history of palpitations, syncope
(fainting), or any other serious cardiac structural or rhythm
disorder, must be done. The prescriber must also determine if
the patient has a history of glaucoma, hyperthyroidism or
moderate to severe hypertension as these conditions are
contraindications for the use of [central nervous system]
stimulant medications. [¶] Once the [central nervous system]
stimulant medication is prescribed, the clinician must regularly
5
Petitioner is licensed to practice medicine in Texas as well
as California. In a disciplinary order issued on June 12, 2015,
the Texas Medical Board publicly reprimanded petitioner based
on her admission that, during the period from 2009 to 2014, she
had prescribed controlled substances to a person with whom she
has a close, personal relationship. “Specifically, [petitioner]
admitted to prescribing a 30-day supply of Ambien, with refills,
as well as other medications to this person, who is a resident of
Oregon.” In addition to the public reprimand, petitioner was
ordered not to treat, or prescribe medication to, her immediate
family; to take and pass a medical jurisprudence examination; to
complete various medical education courses; and to pay a $3,000
penalty.
9
assess the patient‟s blood pressure and pulse[,] since this class of
drug is known to increase both, and monitor for signs/symptoms
of peripheral vasculopathy.”
Dr. Gray believed the three patients in question, all women
who were likely postmenopausal, may be at increased risk for
coronary artery disease complications, which could be
exacerbated by use of the prescribed stimulants. According to Dr.
Gray, a review of the patients‟ medical records “is necessary to
confirm that an appropriate examination/screening was done
before prescribing this medication regimen and also to determine
whether regular assessments of the efficacy and effects of the
treatment regimen were not only conducted but documented and
that the appropriate monitoring measures were performed.”
Petitioner opposed the Department‟s request for an order to
compel compliance with the subpoenas. The thrust of the
opposition was two-fold: first, that the subpoenaed records were
protected by the psychotherapist-patient privilege, and second,
even if the privilege did not apply, the Department had shown no
good cause that would overcome the patients‟ constitutional right
to privacy in their medical records.
With her opposition, petitioner submitted her own
declaration. She stated she contacted M.L. and J.M.B., both of
whom instructed her not to disclose their records to the Board
and to assert the psychotherapist-patient privilege on their
behalf; petitioner had been unable to reach L.R. but believed she
had an ethical and legal obligation to assert the privilege on her
behalf as well.
Petitioner‟s declaration also sought to undermine the
factual showing made by Dr. Gray in support of the petition to
enforce the administrative subpoenas. Petitioner asserted it was
10
“widely known among physicians specializing in psychiatry” that
dosages of stimulants used in the treatment of ADHD can
“appropriately be higher than the dosages recommended by the
pharmaceutical manufacturer,” and she attached a medical
journal article intended to substantiate her assertion. Petitioner
also sought to rebut Dr. Gray‟s criticism of prescribing Adderall
and Vyvanse in combination to patient J.M.B. Petitioner stated
she “would not expect a general practice physician such as [Dr.
Gray] to understand and appreciate the complexities of
prescribing appropriate doses of stimulants to patients as such
physicians generally do not treat ADHD,” and petitioner attached
a medical journal article that she characterized as supporting the
practice of prescribing a long-acting stimulant (like Vyvanse)
with a short-acting stimulant (like Adderall).6
After hearing extensive argument from counsel, the trial
court issued an order granting in part the petition to enforce the
administrative subpoenas. The court concluded the
psychotherapist-patient privilege did not protect the subpoenaed
records because Business and Professions Code section 2225
abrogates the privilege for purposes of a Board disciplinary
investigation of a physician, including petitioner. The trial court
agreed patients had a constitutional privacy right that covers
information in their medical records but found the “right is not
absolute, and must be balanced against other important
interests.” Applying a “good cause” test, the court found the
factual basis for the subpoenas set forth in Dr. Gray‟s declaration
6
Petitioner also briefly addressed the prior disciplinary
order entered against her by the Texas Medical Board. She
stated: “The basis for the Texas Agreed Order is that I re-filled
existing prescriptions for sleep medication for a family member.”
11
was sufficient to compel disclosure of the specified records, with
the exception of the fourth and fifth categories itemized in the
subpoenas (seeking all correspondence and all billing records).
Petitioner thereafter filed a writ petition in this court
seeking reversal of trial court‟s decision to order compliance with
the subpoenas. Believing the issues presented by the petition
warranted our consideration, we issued an order to show cause.
II
This is a case in two parts. We hold, first, that the
psychotherapist-patient privilege does not protect the
subpoenaed records from disclosure to the Department. Business
and Professions Code section 2225, a statute enacted after
codification of the psychotherapist-patient privilege, permits
disclosure of records that the psychotherapist-patient privilege
would otherwise shelter when the Department and the Board are
investigating potential improper prescribing of controlled
substances by a psychiatrist. We further hold, second, that a
psychiatric patient‟s constitutional right to privacy requires the
Department to demonstrate a subpoena for the patient‟s records
is supported by a compelling interest and that the information
demanded is “relevant and material” (Wood v. Superior Court
(1985) 166 Cal.App.3d 1138, 1148-1149 (Wood)) to the particular
investigation being conducted.
Here, the State has a compelling interest in investigating
excessive or otherwise improper prescribing of controlled
substances, and Dr. Gray‟s declaration establishes most of the
records demanded by the subpoena are relevant and material to
that investigation. But the relevant and material standard is by
no means toothless. Further narrowing of the Department‟s
12
subpoenas—specifically, elimination of a “catch-all” category of
materials and related “including but not limited to” language—is
required to comport with the weighty privacy interests at stake.
A
The question of whether the psychotherapist-patient
privilege bars disclosure of the subpoenaed records is a legal one,
requiring us to analyze how Business and Professions Code
section 2225 interacts with the privilege provisions of the
Evidence Code. Our review is de novo. (John v. Superior Court
(2016) 63 Cal.4th 91, 95; Bruns v. E-Commerce Exchange, Inc.
(2011) 51 Cal.4th 717, 724 (Bruns) [“Statutory interpretation is a
question of law that we review de novo”]; see also People v.
Superior Court (2015) 242 Cal.App.4th 692, 698 [courts should
construe statutes in a manner that most closely comports with
the Legislature‟s apparent intent, with a view to promoting
rather than defeating the statutes‟ general purpose and avoiding
a construction that would lead to unreasonable, impractical, or
arbitrary results].)
1
In May 1965, then-Governor Pat Brown approved the
Cobey-Song Evidence Act, which enacted California‟s Evidence
Code. (Stats. 1965, ch. 299, §§ 1, 2, p. 1297.) As enacted, the
Evidence Code included two Articles that are of interest to us in
this proceeding: one that codified a physician-patient privilege
and another that codified a psychotherapist-patient privilege.
(Stats. 1965, ch. 299, §2, pp. 1329-1333.) These two privileges
remain part of the Evidence Code today.
13
Evidence Code sections 990 et seq. comprise Division 8,
Chapter 4, Article 6 of the code, entitled “Physician-patient
Privilege.” Evidence Code sections 990 and 991 define
“physician” and “patient” consistent with the common
understanding of those terms, and Evidence Code section 994
provides, with certain statutory exceptions, that “the
patient . . . has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between
patient and physician . . . .” Among the statutory exceptions to
the physician-patient privilege is Evidence Code section 998,
which makes the privilege inapplicable in a criminal proceeding,
and Evidence Code section 1007, which states the privilege does
not apply “in a proceeding brought by a public entity to determine
whether a right, authority, license, or privilege . . . should be
revoked, suspended, terminated, limited, or conditioned.”
The very next Article of the Evidence Code, Article 7, is
entitled “Psychotherapist-patient Privilege.” Evidence Code
section 1010 defines those who are considered “psychotherapists”
for purposes of the privilege. A person like petitioner who is
“authorized to practice medicine in any state or nation
[and] . . . devotes . . . a substantial portion of his or her time to
the practice of psychiatry” qualifies (Evid. Code, § 1010, subd.
(a)), but so do many others, including licensed psychologists,
clinical social workers, marriage and family therapists, and
professional clinical counselors (Evid. Code, § 1010, subds. (b), (c),
(e), (n)).7 Evidence Code section 1014 incorporates this definition
7
Previously, psychologists‟ communications with patients
were privileged under former Business and Professions Code
section 2904, but that statute made no reference to psychiatrists.
(Stats. 1957, ch. 2320, § 1, p. 4038.) In 1965, with enactment of
14
of a psychotherapist and states: “Subject to [Evidence Code]
Section 912 [governing waiver of privileges] and except as
otherwise provided in this article, the patient . . . has a privilege
to refuse to disclose, and to prevent another from disclosing, a
confidential communication between patient and
psychotherapist . . . .” (Evid. Code, § 1014; see also Evid. Code, §
1015 [obligating a psychotherapist to claim the privilege on a
patient‟s behalf unless the patient authorizes disclosure].) The
exceptions to the psychotherapist-patient privilege enumerated
in Article 7 of the Evidence Code differ in some respects from
those concerning the physician-patient privilege: among other
things, there is no provision that renders the psychotherapist-
patient privilege inapplicable in criminal proceedings, nor is
there a provision that states the privilege does not apply in
licensing proceedings brought by a public entity.
The Law Revision Commission Comment prepared in
connection with the enactment of the Evidence Code in 1965
explains why the psychotherapist-patient privilege is treated
differently than the physician-patient privilege: “This article
creates a psychotherapist-patient privilege that provides much
broader protection than the physician-patient privilege. [¶]
Psychiatrists now have only the physician-patient privilege which
the Evidence Code, the Legislature re-defined the term
“psychotherapist” to include a certified psychologist and a
medical doctor who devotes (or is reasonably believed by a patient
to devote) a substantial portion of his or her practice to
psychiatry. (Stats. 1965, ch. 299, §2, p. 1331; see also Stats.
1965, ch. 553, § 1, p. 1879 [repealed when Evidence Code
enacted].) Over the years since, the Legislature has added other
mental health professionals to the list of those considered to be a
“psychotherapist.”
15
is enjoyed by physicians generally. On the other hand, persons
who consult certified psychologists have a much broader privilege
under [former] Business and Professions Code Section 2904
(superseded by the Evidence Code). There is no rational basis for
this distinction. [¶] A broad privilege should apply to both
psychiatrists and certified psychologists. Psychoanalysis and
psychotherapy are dependent upon the fullest revelation of the
most intimate and embarrassing details of the patient‟s life.
Research on mental or emotional problems requires similar
disclosure. Unless a patient or research subject is assured that
such information can and will be held in utmost confidence, he
will be reluctant to make the full disclosure upon which diagnosis
and treatment or complete and accurate research depends. [¶]
The Law Revision Commission has received several reliable
reports that persons in need of treatment sometimes refuse such
treatment from psychiatrists because the confidentiality of their
communications cannot be assured under existing law. Many of
these persons are seriously disturbed and constitute threats to
other persons in the community. Accordingly, this article
establishes a new privilege that grants to patients of
psychiatrists a privilege much broader in scope than the ordinary
physician-patient privilege. Although it is recognized that the
granting of the privilege may operate in particular cases to
withhold relevant information, the interests of society will be
better served if psychiatrists are able to assure patients that
their confidences will be protected.” (Cal. Law Revision Com.
com., reprinted in Deering‟s Ann. Evid. Code (2004 ed.) foll. §
1014, p. 217.); see also In re Lifschutz (1970) 2 Cal.3d 415, 434,
fn. 20 [citing this comment as evidence of what the Legislature
16
“acknowledged” when recognizing the psychotherapist-patient
privilege].)
In July 1965, roughly two months after approving the bill
that enacted the statutory privileges we have just discussed,
then-Governor Brown approved an act amending certain
provisions of the Business and Professions Code pertaining to the
Board‟s licensing and disciplinary functions. (Stats. 1965, ch.
1458, p. 3413.) Section 7 of this act amended former section 2379
of the Business and Professions Code. That statute deemed the
willful betraying of a “professional secret” by a physician to be
unprofessional conduct, and the July 1965 amendment added
language stating “[n]either this section nor any other provision of
law making communication between a physician and surgeon and
his patient a privileged communication shall apply to
investigations or proceedings conducted under this act.” (Stats.
1937, ch. 399, p. 1274; Stats. 1937, ch. 414, § 3, p. 1377; Stats.
1965, ch. 1458, § 7, p. 3415.)
Later in 1980, the Legislature repealed former Business
and Professions Code section 2379 as part of its reorganization of
the Medical Practice Act. (Stats. 1980, ch. 1313, § 1.6, p. 4445.)
In place of former section 2379, the 1980 reorganization added
section 2225 to the Business and Professions Code. (Stats. 1980,
ch. 1313, § 2, p. 4472.) The Legislature has amended section
2225 seven times since 1980, but the sentence in the statute that
is important for our purposes has remained virtually unchanged.
It reads: “Notwithstanding [Business and Professions Code]
Section 2263 and any other law making a communication
between a physician and surgeon or a doctor of podiatric medicine
and his or her patients a privileged communication, those
provisions shall not apply to investigations or proceedings
17
conducted under this chapter.” (Bus. & Prof. Code, § 2225, subd.
(a).)
2
There really is no dispute that the records subpoenaed by
the Department are records described by the psychotherapist-
patient privilege provisions of the Evidence Code. And our
Supreme Court has observed “privilege is a legislative creation,
which courts have no power to limit by recognizing implied
exceptions.” (Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725, 739.) That means the subpoenaed records are
privileged unless Business and Professions Code section 2225
makes the psychotherapist-patient privilege statutes inapplicable
when the Board is investigating whether it should discipline a
physician it has licensed to treat the sick or afflicted in this state.
In our judgment, it does.
Business and Professions Code section 2225, subdivision (a)
states that the provisions of “any other law making a
communication between a physician . . . and his or her patients a
privileged communication” do not apply in an investigation
conducted pursuant to the provisions of the Medical Practice Act.
Petitioner reads this provision as if the language quoted
immediately above is no different than an express reference to
the physician-patient privilege; she characterizes the trial court,
for instance, as having found the subpoenaed records “come
within [Business and Professions Code] section 2225, subdivision
(a)‟s exception to the physician-patient privilege of Evidence Code
section 994[ ] because all psychiatrists are physicians . . . .”
(Emphasis added.) While the Legislature certainly could have
drafted Business and Professions Code section 2225, subdivision
18
(a) to make express reference to the physician-patient privilege or
to Evidence Code section 994,8 the text the Legislature chose is
not so limited.
The key sentence in Business and Professions Code section
2225, subdivision (a) does not refer to Division 8, Chapter 4,
Article 6 of the Evidence Code, i.e., the code‟s physician-patient
privilege provisions, but rather to “any other law” that would
make a communication between a physician and a patient
privileged. Put more simply, the text of Business and Professions
Code section 2225, subdivision (a) refers to an indefinite legal
circumstance, not a narrow group of particular statutes. The
plain text of the statute commands that insofar as any other laws
would apply to make communication between a physician and
one of his or her patients privileged (at least for laws that pre-
date section 2225‟s enactment), those laws are abrogated for
purposes of a Medical Practice Act disciplinary investigation.
So understood, the records the Department seeks from
petitioner are not privileged from disclosure. Under Business
and Professions Code section 2225, subdivision (a) we need only
ask whether petitioner is a physician, whether the Department
and the Board are conducting an investigation under the Medical
Practice Act, and whether there are laws that would otherwise
make her communications with the three identified patients
privileged. The answer to all three questions is yes.
First, petitioner is unquestionably a physician—that she
specializes exclusively in psychiatry does not make her any less
8
As we have already detailed ante, the Legislature and
Governor enacted the relevant privilege statutes before enacting
the predecessor statute to what is now Business and Professions
Code section 2225.
19
of a medical doctor; the designations “physician” and
“psychiatrist” are not mutually exclusive. Second, it is
undisputed the subpoenas were issued in connection with a
Medical Practice Act investigation. And third, there are indeed
laws that would make petitioner‟s communications with the three
individuals named in the subpoenas privileged—the Evidence
Code provisions concerning the physician-patient privilege are
one group of such laws, but so are the Evidence Code statutes
that govern the psychotherapist-patient privilege. (Evid. Code, §
1010, subd. (a) [defining “psychotherapist” as any “person
authorized to practice medicine in any state or nation who
devotes, or is reasonably believed by the patient to devote, a
substantial portion of his or her time to the practice of
psychiatry”] (emphasis added).) Business and Professions Code
section 2225, subdivision (a) accordingly abrogates both
privileges.
Our reading of section 2225, subdivision (a) accords with
the recognized purpose of the Medical Practice Act. “[T]he
Legislature established revocation and suspension proceedings
for medical licenses in order to protect the life, health and welfare
of the people at large and to set up a plan whereby those who
practice medicine will have the qualifications which will prevent,
as far as possible, the evils which could result from ignorance or
incompetency or a lack of honesty and integrity.” (Borden v.
Division of Medical Quality (1994) 30 Cal.App.4th 874, 883,
internal quotation marks and citation omitted.) Business and
Professions Code section 2225, subdivision (a) facilitates this
purpose by ensuring Department and Board investigators have
access to materials that allow them to monitor those the Board
has authorized to practice medicine. The Legislature certainly
20
intended the psychotherapist-patient privilege to apply broadly,
but we do not believe the Legislature intended to empower a
physician like petitioner—who can prescribe medications to her
patients only by virtue of having received a physician‟s and
surgeon‟s certificate from the Board (Bus. & Prof. Code, §§ 2051,
2052)—to refuse legitimate demands for information from the
very entity charged with enforcing the regulatory regime that
enables her to practice medicine.9 We therefore reject petitioner‟s
reading of Business and Professions Code 2225, which would do
just that: rendering those physicians with a substantial
psychiatry practice immune from Board discipline except in those
instances where the Board can investigate and prove a violation
without use of compulsory process.10
Petitioner argues, however, that Business and Professions
Code section 2225, subdivision (a) cannot operate as a statutory
9
The Legislature has obligated psychiatrists to assert the
psychotherapist-patient privilege on their patients‟ behalf unless
they affirmatively consent to disclosure. (Evid. Code, § 1015.)
While we recognize the privilege ultimately belongs to, and is
primarily intended to protect, patients, the Medical Practice Act
is founded at least in part on the notion that Board oversight of
the medical profession is necessary because patients will not
always have the knowledge or expertise necessary to understand
they may be receiving substandard care.
10
There is no logical reason to believe there would be many
such cases, at least when the nature of the investigation concerns
a patient who is addicted to controlled substances he or she is
receiving from an overprescribing physician. Such a patient will
have little incentive to consent to disclosure of records that might
reveal his or her abuse of prescription medication.
21
exception to the psychotherapist-patient privilege because it
would conflict with Evidence Code section 1014, which states the
privilege applies “[s]ubject to [Evidence Code] Section 912 and
except as otherwise provided in this article.” That is to say, in
petitioner‟s view, only those statutory exceptions enumerated in
Division 8, Chapter 4, Article 7 of the Evidence Code can defeat
the protection provided by the psychotherapist-patient privilege.11
This argument fails because it runs contrary to hornbook
statutory interpretation principles.
It is well established that a statute enacted later in time
controls over an earlier-enacted statute, and it is equally well-
established that a specific statute prevails over a statute that is
more general. (State Dept. of Public Health v. Superior Court
(2015) 60 Cal.4th 940, 946, 960-961 (DPH) [more specific and
later-enacted long-term care statute properly construed as a
limited exception to general rule of patient confidentiality set
forth in Welfare and Institutions Code section 5328]; see also
Gov. Code, § 9605 [“In the absence of any express provision to the
contrary in the statute which is enacted last, it shall be
conclusively presumed that the statute which is enacted last is
intended to prevail over statutes which are enacted earlier at the
same session . . .”]; Code Civ. Proc., § 1859 [“when a general and
particular provision are inconsistent, the latter is paramount to
the former”].) Relative to the psychotherapist-patient privilege
provisions of the Evidence Code, Business and Professions Code
11
Petitioner notes, correctly, that there is no exception for
administrative licensing proceedings in the Article of the
Evidence Code pertaining to the psychotherapist-patient
privilege, although there is such an exception in the Article that
pertains to the physician-patient privilege (Evid. Code, § 1007).
22
section 2225, subdivision (a) is both later-enacted and more
specific. It was enacted after the relevant Evidence Code statutes
in 1965, and it was also re-enacted in 1980 as part of the
reorganization of the Medical Practice Act. In addition, Business
and Professions Code section 2225, subdivision (a) applies to a
specific, narrow category of proceedings, i.e., those under the
Medical Practice Act, unlike the privilege provisions of the
Evidence Code that have more general application and cover a
wider range of investigations and litigation. Business and
Professions Code section 2225, subdivision (a) is therefore
properly construed as a limited exception to the psychotherapist-
patient privilege notwithstanding the “except as otherwise
provided” language included in Evidence Code section 1014 when
it was enacted.
These principles of interpretation help explain why
petitioner‟s reliance on City of Alhambra v. Superior Court (1980)
110 Cal.App.3d 513 (City of Alhambra) is unavailing.12 In that
case, a plaintiff alleging police misconduct propounded
interrogatories asking the officer in question whether he had
received psychiatric treatment. (Id. at p. 518.) The trial court
ordered the officer to answer the interrogatories, but the Court of
Appeal reversed, concluding the psychotherapist-patient privilege
12
The Fourth District Court of Appeal‟s decision in
Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394 has no
relevance to the privilege issue we decide. In that case, the
Board forfeited the argument we address at length: whether
Business and Professions Code section 2225, subdivision (a)
vitiates the psychotherapist-patient privilege in a disciplinary
investigation under the Medical Practice Act. (Id. at pp. 1404-
1405.)
23
barred disclosure. (Id. at p. 519.) In reversing, the appellate
court rejected the plaintiff‟s argument that Evidence Code section
999 authorized disclosure. That statute provides for an exception
to the physician-patient privilege Article of the Evidence Code,
and the court reasoned the absence of any comparable exception
in the psychotherapist-patient privilege Article of the Evidence
Code meant the information sought by the interrogatories was
protected from compelled disclosure. (Id. at p. 519.)
The differences between City of Alhambra and this case are
readily apparent. For reasons we have explained, Business and
Professions Code section 2225, subdivision (a) is correctly
understood as an exception to the psychotherapist-patient
privilege and, as a later-enacted, more specific statute, section
2225 trumps any conflicting language in the Evidence Code—
including the “except as otherwise provided in this article”
language in Evidence Code section 1014.
Petitioner also heavily relies on the Law Revision
Commission Comment accompanying Evidence Code section 1014
and argues it is evidence of an intent by the Legislature to codify
a broad psychotherapist-patient privilege without a “patchwork”
exception that would treat psychiatrists differently than
psychologists for purposes of whether communications with
patients should be privileged. It is true that Business and
Professions Code section 2225, as we read it, does require
treating patient communications with a psychiatrist differently
than patient communications with a psychologist or any of the
other mental health professionals specified in Evidence Code
section 1010. But the rejoinder is obvious: that result is the
product of the text the Legislature enacted. (See Even Zohar
Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61
24
Cal.4th 830, 837-838 [statute‟s actual words most reliable
indicator of legislative intent].) Even if the Law Revision
Commission Comment is a reliable indication of the Legislature‟s
intent at the time it enacted the Evidence Code, there is no
reason why the Legislature could not have later concluded a
narrow carve-out to the otherwise broad psychotherapist-patient
privilege was required for Medical Practice Act investigations.13
In fact, the existence of salient differences between
psychiatrists and other mental health professionals for purposes
of Board investigations provides good reason to believe that is
precisely what the Legislature concluded. As we have already
explained, physicians like petitioner are entitled to practice
medicine—and to prescribe highly addictive controlled
substances—only because they have a certificate from the Board
that authorizes them to do so. (Bus. & Prof. Code, §§ 2051, 2052;
Health & Saf. Code, § 11150.) None of the other mental health
13
Petitioner also argues Business and Professions Code
“[s]ection 2225 itself precludes any implication that its exception
to the physician-patient privilege was intended by the
Legislature to create an exception also to the psychotherapist-
patient privilege” because the “procedural limitations on the
Board‟s authority to inspect patient records” found in
subdivisions (b)(1) and (b)(2) of the statute would be unnecessary
if patient records could be subpoenaed without regard to patient
consent. To the extent it is comprehensible, the argument has no
force. The key sentence in Business and Professions Code section
2225, subdivision (a) pertains to any “investigation[ ] or
proceeding[ ] conducted under this chapter,” i.e., the Medical
Practice Act. The investigation involved in this case is
undoubtedly such an investigation, and for reasons we have
already detailed, the Department was entitled to issue subpoenas
in furtherance of that investigation.
25
professionals listed in Evidence Code section 1010 are similarly
entitled to write prescriptions (see, e.g., Bus. & Prof. Code, § 2904
[“The practice of psychology shall not include prescribing
drugs . . .”]), nor are those professionals subject to discipline by
the Board. A conclusion that relatively greater investigative
latitude is required for the Board to monitor psychiatrists and
protect the patients who see them, in light of the relatively
greater potential for harm that arises from the authority
psychiatrists possess to prescribe dangerous drugs, represents no
arbitrary “patchwork” exemption but rather an entirely sensible
legislative discrimination.
We do recognize the Legislature could have expressed its
intentions regarding the applicability of the psychotherapist-
patient privilege in a Medical Practice Act investigation even
more clearly than it has. (Compare, e.g., Pen. Code, § 11171.2
[providing that “[n]either the physician-patient privilege nor the
psychotherapist-patient privilege” apply to child abuse and
neglect information reported in a court proceeding or
administrative hearing].) But Business and Professions Code
section 2225, subdivision (a) has a plain meaning in our view—
one that makes exception to the psychotherapist-patient privilege
for Board investigations—and it has never been the practice of
courts to insist the Legislature speak in precisely the manner a
court might prefer if the legislative intention is sufficiently clear.
Of course, if we have misjudged that intent, if the Legislature‟s
desire was to create an entirely inviolate psychotherapist-patient
privilege notwithstanding the indicia that suggest otherwise, the
Legislature remains free to say so. But on the state of the law as
it stands, the records demanded in the Department‟s subpoenas
are not protected by the psychotherapist-patient privilege.
26
B
To say the medical records subpoenaed by the Department
are not covered by a statutory privilege is to answer only one of
the two questions presented in this case. We still must address
whether the subpoenas infringe on M.L., L.R., and J.M.B.‟s
constitutional right to privacy, and if so, whether the Department
has made a sufficient showing to justify such infringement.
Apparently applying a general balancing test, the trial court
concluded the Department had made such a showing as to four of
the subpoenas‟ categories (that call for treatment and testing
records, x-ray or other imaging records, pathology reports and lab
data, and “all other data . . . which would reveal all medical care
provided”) but not for the remaining two categories (all
correspondence and all billing records).
The question of whether patients have a state
constitutional right to privacy that protects information
contained in their medical records is, in our view, an easy one.
Beyond peradventure, they do. (In re Lifschutz, supra, 2 Cal.3d
at pp. 431-432; Fett v. Medical Board of California (2016) 245
Cal.App.4th 211, 216 [citing cases recognizing patients‟ privacy
rights concerning information in their medical records] (Fett);
Wood, supra, 166 Cal.App.3d at p. 1147 [“[E]xamination of
medical records [is] within the purview of the privacy
amendment”]; Board of Medical Quality Assurance v. Gherardini
(1979) 93 Cal.App.3d 669, 678-679 (Gherardini).) More open to
debate, however, are the issues of whether a compelling interest
must be shown to overcome this privacy interest, and the extent
of the required nexus between the information the Department
demands and the interest asserted to justify its production.
27
1
Citing Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1 (Hill), the Department contends a “general balancing
test” is all that is necessary to overcome the medical privacy right
at issue in this case. We are not persuaded this is the correct
approach. To be sure, Hill does say that not every assertion of a
privacy interest must be overcome by a compelling interest;
rather, such an interest need only be shown for those “vital”
privacy interests that “involve[ ] an obvious invasion of an
interest fundamental to personal autonomy.” (Id. at p. 34.) In so
holding, however, our Supreme Court cited to several of its prior
cases to distinguish those where a showing of a compelling
interest had been found necessary from those where general
balancing tests were employed. Among the citations is People v.
Stritzinger (1983) 34 Cal.3d 505, which the Hill court describes
as a case that held a “patient‟s privacy interest in psychotherapy
must yield to compelling state interests.” (Hill, supra, at p. 34, fn.
11; see also Wood, supra, 166 Cal.App.3d at pp. 1147-1148 [Board
must show compelling interest to overcome privacy right];
Gherardini, supra, 93 Cal.App.3d at p. 680 [same]; cf. Kirchmeyer
v. Phillips, supra, 245 Cal.App.4th at p. 1404 [holding the Board
must demonstrate a compelling interest, but basing its holding in
part on the conclusion that the psychotherapist-patient privilege,
not just the state constitutional right to privacy, applied].) We
read the citation to People v. Stritzinger as an indication of the
interest that must be shown in a case like this one, and we hold
the Department must therefore demonstrate a compelling
interest to overcome the patients‟ right to privacy in their
psychiatric records.
28
There is ample reason to conclude the State has a
compelling interest in a case like this one that involves an
investigation into excessive or improper prescribing of controlled
substances. The Legislature itself has emphasized the
importance of such investigations by directing the Board to
prioritize its resources on certain matters believed to represent
“the greatest threat of harm,” including “[r]epeated acts of clearly
excessive prescribing . . . of controlled substances, or repeated
acts of prescribing . . . controlled substances without a good faith
prior examination of the patient and medical reason therefor.”
(Bus. & Prof. Code, § 2220.05, subd. (a)(3).) The Court of Appeal
in Wood also expressly held the Board‟s interest in obtaining
information for use in such an investigation is compelling.
(Wood, supra, 166 Cal.App.3d at p. 1147 [“That there is a strong
governmental interest in regulating the prescription of drugs by
physicians cannot be gainsaid”].) We likewise so hold.
Petitioner, however, advances what can be construed as a
variant on her argument that no compelling interest supports the
subpoenas in this case. She contends that even if the State has a
compelling interest in investigating improper prescribing of
controlled substances as a general matter, the Department and
the Board cannot assert that interest here because those entities
have not competently demonstrated adequate predication for
their investigation of petitioner. Each of the contentions
petitioner makes in this regard is unpersuasive.
Petitioner contends Dr. Gray‟s declaration is not competent
to demonstrate the Board has sufficient predication for its
investigation into petitioner‟s controlled substance prescribing
practices because Dr. Gray is a specialist in internal medicine,
not psychiatry. The trial court concluded Dr. Gray was
29
sufficiently qualified to competently render an opinion, and we
review that determination for abuse of discretion. (Fett, supra,
245 Cal.App.4th at p. 222; Whitney v. Montegut (2014) 222
Cal.App.4th 906, 917-918.) While a declaration from a
psychiatrist may have been more persuasive, we do not believe
the trial court abused its discretion in finding Dr. Gray
competent to render an opinion on the potential dangers
presented by the dosages of Adderall and Vyvanse petitioner
prescribed to the three patients in question. Dr. Gray declared
she was familiar with the applicable standard of care, and she did
not opine on whether petitioner accurately diagnosed whether
the patients were suffering from mental health conditions
requiring treatment—indeed, the diagnosis that led to the
prescriptions is unknown. Rather Dr. Gray opined on the nature
and properties of the drugs prescribed, their potential
complications, and the precautions that should be taken by a
physician who prescribes the medications. So far as the record
before us reveals, these are all topics sufficiently within the
training and experience of a physician with a specialty in internal
medicine.14
14
Petitioner asserts the trial court “failed to consider” the
medical journal articles she submitted in an effort to show her
prescribing practices were appropriate. There is no reason to
believe this is so—counsel for petitioner specifically highlighted
the two articles during the hearing on the Department‟s petition
to enforce the subpoenas. Regardless, the medical journal
articles are also not as supportive of petitioner‟s position as she
appears to believe.
The first article does describe successful treatment of an
adult suffering from ADHD with a higher than normal dose of a
stimulant (methylphenidate). But even assuming all three
30
Petitioner also contends Dr. Gray‟s declaration is deficient
because Dr. Gray formed her opinion based on CURES reports
which petitioner argues are “unreliable hearsay.”15 Even
assuming for argument‟s sake courts cannot, as a general matter,
consider hearsay when deciding whether to grant a petition to
compel compliance with an administrative subpoena, Dr. Gray is
an expert and the trial court did not abuse its discretion in
concluding Dr. Gray could rely on and recite the CURES report
data in explaining the basis for her opinion. (Evid. Code, §§ 801,
patients here were actually diagnosed with ADHD, the authors of
the article explain that “[t]o [their] knowledge, this is the first
reported case of high-dose treatment in a patient with adult
ADHD” and they caution “clinicians to monitor clinical symptoms
when using high doses.” As Dr. Gray explains, the subpoenas are
at least partly intended to discover whether petitioner engaged in
this sort of monitoring of M.L., L.R., and J.M.B. The second
article states combination pharmacotherapy (using long and
short acting stimulants) is “a common practice,” but it says
nothing about the particular dosages petitioner prescribed in this
case and it similarly cautions that physicians must monitor
patients for side effects, especially cardiovascular effects—which,
again, were referenced as a point of concern by Dr. Gray in her
declaration.
15
Petitioner notes our Supreme Court has granted review in
a case to decide whether a physician‟s patients have a protected
privacy interest in CURES data and, if so, whether disclosure of
such data to the Board is justified by a compelling state interest.
(Lewis v. Superior Court (2014) 226 Cal.App.4th 933, review
granted Sept. 17, 2014, S219811.) She makes no argument,
however, that it was inappropriate for the Board to access the
CURES data for its investigation in this case.
31
subd. (b), 802; People v. Sanchez (2016) 63 Cal.4th 665, 678-679;
see also People v. Dean (2009) 174 Cal.App.4th 186, 193.)
More broadly, petitioner contends the facts and opinions
related in the declarations of Dr. Gray and Investigator Coleman
do not give rise to adequate suspicion to justify an investigation
into whether petitioner is violating laws concerning the
prescribing of controlled substances. We find the argument
unpersuasive. Dr. Gray‟s opinion, set forth in her detailed
declaration and grounded in her review of the reports detailing
the amount of controlled substances petitioner prescribed in
comparison to the recommended dosages, may well have sufficed
by itself to establish the suspicion that would justify commencing
an investigation. (Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 8
[Board may investigate merely on suspicion the law is being
violated].) But there was more. Investigator Coleman explained
she spoke with M.L. and M.L. denied petitioner had treated her
at all. While M.L. might have simply been reluctant to admit she
had been treated by a psychiatrist, her denial is another reason
why the Department and the Board would reasonably conclude
an investigation was warranted. In addition, petitioner has
previously been disciplined by the Texas Medical Board for
improperly prescribing sleep medication, and this is yet another
fact on which the Board could properly rely to conclude there was
good reason to investigate petitioner‟s prescribing practices as to
M.L., L.R., and J.M.B.
2
Petitioner argues that even if the Department and the
Board have a compelling reason to seek information contained in
the medical records of M.L., L.R., and J.M.B., the Department
32
and the Board must proceed by the least intrusive manner
available. Insofar as she contends the entities were required to
pursue voluntary means of obtaining the information sought
before resorting to compulsory process, the contention is sound.
(Whitney v. Montegut, supra, 222 Cal.App.4th at pp. 918-919;
Wood, supra, 166 Cal.App.3d at p. 1149 [“The first constraint
appropriate to accommodate the privacy interest of the patient is
that the board must take reasonable steps to notify the patient of
its proposed examination”]; see also Valley Bank of Nev. v.
Superior Court (1975) 15 Cal.3d 652, 658.) There is no dispute
the Department and the Board pursued such means in this case.
On the other hand, to the extent petitioner contends the
items demanded in the subpoenas must be narrowly tailored to
the interest in investigating the improper prescription of
controlled substances, the contention is wide of the mark. The
high burden imposed by a strict narrow tailoring requirement is
inconsistent with the investigatory stage that precedes a formal
accusation, where the information available to the Department
may be sparse and the ability to craft highly targeted demands
for information is often limited. We instead agree with prior
cases that have held information demanded by an administrative
subpoena in a case like this must be “relevant and material” to
the investigation being conducted. (Wood, supra, 166 Cal.App.3d
at p. 1149 [“The board must demonstrate that the particular
records it seeks are „relevant and material to the board‟s inquiry‟
whether the petitioners have improperly prescribed Schedule II
drugs”]; accord, Bearman v. Superior Court (2004) 117
Cal.App.4th 463, 469 (Bearman).) That does not mean, of course,
the “relevant and material” standard is easily satisfied; rather,
administrative subpoenas must still be carefully crafted to
33
winnow out immaterial records. (Bearman, supra, at p. 472;
Wood, supra, at pp. 1148-1149.)
All of the categories in the subpoenas here are limited to
seeking information in the patients‟ medical records during the
time periods Dr. Gray identified as suspect after reviewing the
CURES report. Such a time limitation is an important constraint
that helps ensure the items demanded are relevant and material
to the investigation. Although confining a subpoena to a limited,
defined time period will almost always be necessary to satisfy the
relevance and materiality requirement, rarely if ever will such a
time limitation alone be sufficient. Here, however, Dr. Gray‟s
declaration also supplies a sufficient factual predicate to explain
why the specific items requested in the first through third
categories of the subpoenas are relevant and material to
determining whether petitioner improperly prescribed Adderall
and Vyvanse to the three patients. (Compare, e.g., Wood, supra,
166 Cal.App.3d at p. 1150 [order compelling subpoena compliance
reversed where Board made no evidentiary showing as to how
often similarly-situated physicians might prescribe drugs in
question or the likelihood the prescriptions could have been
properly issued]; Gherardini, supra, 93 Cal.App.3d at p. 681
[order compelling compliance with subpoena reversed where
declaration “sets forth no facts, no showing of relevance or
materiality of the medical records” and instead merely makes
reference to a broad investigation enabling statute].)
The same cannot be said for two other aspects of the
subpoenas. First, the subpoenas demand “[t]he complete medical
record” which is defined to “include[ ], but [not be] limited to” the
six more specific categories in the subpoena. This expansive
“including but not limited to language” is entirely inconsistent
34
with the relevant and material standard; a subpoena must
itemize, at least by category, the materials to be produced. The
subpoenas also demand in category six “all other data,
information or record which would reveal all medical care
provided to the patient.” This sort of “catch-all” category is also
unjustified; it is tantamount to a request for the patients‟ entire
medical file during the operative time period. As we have said, a
time limitation alone will rarely suffice to appropriately cabin a
subpoena‟s demand for private information of the type sought in
this case.
35
DISPOSITION
The petition is granted in part. Let a writ of mandate issue
ordering respondent court to vacate its May 20, 2016, order on
the Petition for Order to Enforce Subpoenas filed by Real Parties
in Interest and to issue a new and different order consistent with
the views expressed in this opinion, i.e., granting the Petition for
Order to Enforce Subpoenas only as to categories one through
three in the Department‟s subpoenas. All parties shall bear their
own costs in this proceeding.
CERTIFIED FOR PUBLICATION
BAKER, J.
I concur:
KRIEGLER, Acting P.J
36
KUMAR, J. Concurring
I agree with the approach taken by the majority. I
respectfully write separately to point out that a trial court‟s
ruling on the issue of whether a subpoena seeks records that are
“relevant and material” to a compelling interest is subject to
review for abuse of discretion. (See McLane Co. v. EEOC (2017)
581 U.S. __, __ [197 L.Ed.2d 500, 508-511] [district court‟s
decision to enforce or quash an EEOC subpoena is reviewed for
abuse of discretion]; see also Manela v. Superior Court (2009) 177
Cal.App.4th 1139, 1146 [whether trial court properly quashed
subpoena based on the physician-patient privilege reviewed for
abuse of discretion]; Muhammad v. State (Fla. 2013) 132 So.3d
176, 189-191 [state supreme court applies abuse of discretion
standard in reviewing whether the trial court properly quashed
subpoenas of a party seeking to prove a journalist‟s qualified
privilege was overcome by, among other things, a compelling
interest for disclosure].) The result reached by the majority is in
harmony with the application of this standard.
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.