The opinion
Filed 10/2/19; Certified for publication 10/29/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DEAN GRAFILO, as Director, etc., B286912
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BS171127)
EMIL SOORANI,
Defendant and Appellant;
KIMBERLY KIRCHMEYER,
as Executive Director, etc.,
Real Party in Interest.
APPEAL from an order of the Superior Court of
Los Angeles County. Daniel S. Murphy, Judge. Affirmed.
Fenton Law Group, Benjamin J. Fenton, Dennis E. Lee and
Alexandra de Rivera, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Xavier Becerra, Attorney General, Gloria L. Castro,
Assistant Attorney General, Judith T. Alvarado and
Christina Sein Goot, Deputy Attorneys General, for Real Party in
Interest.
______________________________
Dr. Emil Soorani appeals from an order compelling the
production of his patients’ medical records to the Medical Board
of California (the Board). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Board’s Investigation
Dr. Soorani is a psychiatrist who has been licensed by the
Board as a physician and surgeon since 1981.
After receiving “information that Dr. Soorani may be
overprescribing controlled substances[,]” the Board initiated an
investigation. The Board obtained a Controlled Substance
Utilization Review and Evaluation System (CURES)1 report
detailing Dr. Soorani’s prescribing history between June 1, 2012,
1 CURES “is California’s prescription drug monitoring
program. By statute, every prescription of a Schedule II, III, or
IV controlled substance must be logged in CURES, along with the
patient’s name, address, telephone number, gender, date of birth,
drug name, quantity, number of refills, and information about
the prescribing physician and pharmacy. [Citation.]” (Lewis v.
Superior Court (2017) 3 Cal.5th 561, 565 (Lewis).) The Board is
authorized to access the CURES database (id. at p. 567), which is
maintained by the California Department of Justice (id. at
p. 566).
2
and June 16, 2015. Dr. Jill Klessig, the Board’s medical
consultant, reviewed the CURES report and identified six of
Dr. Soorani’s patients—T.M., L.R., A.S., M.J., R.B., and A.D.
(collectively, the six patients)—who were prescribed controlled
substances in large quantities or with “erratic patterns.” In
Dr. Klessig’s opinion, obtaining and reviewing the medical
records of the six patients were necessary to determine whether
Dr. Soorani was excessively prescribing controlled substances in
violation of the Medical Practice Act (Bus. & Prof. Code, § 2000
et seq.).
In April 2016, a Board investigator sent letters to the six
patients requesting that they contact him to schedule an
interview “concerning the care and treatment” they received from
Dr. Soorani. A medical release form was enclosed that, if signed,
would authorize Dr. Soorani to disclose all of their medical
records to the Department of Consumer Affairs, Division of
Investigation (DOI), Health Quality Investigation Unit.2 Also
enclosed was a “Notice to Medical Consumers” (capitalization
omitted) explaining that patient records reviewed in connection
with DOI investigations “are kept confidential and no
information about the patient’s care is disclosed to the general
public . . . .” Although patient records could become part of the
official record of a legal proceeding, “[e]ven then, efforts are made
to protect the privacy and identity of the individual patients.”
The six patients were advised that, if they exercised their “right
not to consent to the release[,]” DOI would “take the necessary
2 The Board is a unit of the Department of Consumer Affairs.
(See Bus. & Prof. Code, § 2001, subd. (a).)
3
steps to subpoena the . . . records.” The Board did not receive a
signed authorization form from any of the six patients.
In September 2016, an investigator issued investigational
subpoenas duces tecum (the subpoenas) commanding Dr. Soorani
to produce the following for each of the six patients: “A certified
copy of the documentation supporting your rationale for the
prescriptions you wrote for the patient . . . between the dates
[June 1, 2012] through [September 12, 2016], including the
different medications, doses, and refills. Documentation includes
treatment notes that support the differential diagnosis for the
medications, the treatment plan and orders, and all follow up
including reviews of vital signs, patient complaints of side effects
of medications, laboratory tests to ensure drug efficacy and to
rule out drug toxicity, and physical examinations.” (Bolding
omitted.) Each of the six patients was sent a copy of the
subpoena seeking his or her records, as well as a notice advising
of the right to object.
Approximately one week later, Dr. Soorani’s attorney sent
a letter to the Board’s investigator stating that the doctor would
not produce the medical records sought by the subpoenas without
patient authorization and invoking the psychotherapist-patient
privilege (Evid. Code, § 1010 et seq.) and the right to privacy
under article I, section 1 of the California Constitution.
Dr. Soorani’s attorney enclosed letters from four of the six
patients indicating that they did not authorize disclosure of their
medical records.
II. Petition to Compel Compliance with the Subpoenas
In October 2017, more than a year after the deadline to
comply with the subpoenas had passed, the director of the
Department of Consumer Affairs petitioned the trial court for an
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order requiring Dr. Soorani to produce the subpoenaed medical
records. (Gov. Code, §§ 11186, 11187.)
A. Dr. Klessig’s declaration
In support of the petition, the Board submitted a
declaration from Dr. Klessig, in which she opined that good cause
existed to believe that Dr. Soorani violated the Medical Practice
Act and “was practicing medicine outside the standard of care
when he prescribed narcotics, sedative agents and other
controlled substances to patients in large amounts.” Obtaining
the medical records of the six patients was “[t]he only way to
ascertain whether this is true . . . .” Dr. Klessig detailed the
following prescribing irregularities regarding the six patients
that she found in the CURES report.
1. Patient T.M.
According to Dr. Klessig, Dr. Soorani excessively and
erratically prescribed multiple stimulant and sedative
medications to T.M.
T.M. was prescribed Vyvanse, “an amphetamine-like
stimulant” used to treat attention deficit hyperactivity disorder
(ADHD). Although the maximum daily dose of Vyvanse is 60 to
70 milligrams, T.M. received 30, 60-milligram tablets, followed
only 14 days later by another 30, 70-milligram tablets—
effectively “twice the maximum safe dose.” The next month, T.M.
“switched to amphetamine salts,” but several months later he
was prescribed the maximum recommended doses of both
Vyvanse and the amphetamine salts.
T.M. was also prescribed a “very large” two-milligram dose
of clonazepam, a sedative used to treat panic disorders and
seizures—problems that “can be worsened by amphetamine use.”
5
He also received oxycodone and OxyContin—both “strong
narcotics.”
A few months later, T.M. was prescribed a transdermal
fentanyl patch, “an extremely potent narcotic with a very high
risk of unintentional death.” This drug “is only indicated when
other means of pain management have failed[.]” On the same
day, he received another prescription for oxycodone, which “in
combination with the clonazepam was unsafe.”
A month later, T.M. received a fentanyl refill and a new
prescription for Subsys, another form of fentanyl. Although the
recommended starting dose of Subsys is 100 micrograms, T.M.
was given a 600-microgram dose. Several months later, T.M. was
given 30 doses of 1,200 micrograms. “At the maximum safe
dose, . . . this should have lasted 7.5 days.” Yet he was prescribed
another 30 doses only two days later. In the following week, T.M.
was given an additional 60 doses, followed by 120 doses the next
week, and another 120 doses two weeks after that.
Dr. Soorani also prescribed T.M. a stimulant used to treat
sleep disorders at the highest dose while the other stimulants he
had previously been prescribed at high doses were continued. In
addition, T.M. received prescriptions for depo-testosterone at an
interval that suggested “either there was no medical need for it in
the first place or he was not receiving appropriate
supplementation.”
In Dr. Klessig’s opinion, “there was a high chance of a
lethal outcome if” T.M. had taken the medications as prescribed
to him.
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2. Patient L.R.
Dr. Soorani allegedly prescribed L.R. “potentially
dangerous combinations of medications[] . . . with unclear
medical justification.”
L.R. “received excessive amounts” of methylphenidate, a
stimulant that could be sold on the street for a few dollars. She
filled three prescriptions on the same day for a total of 210 pills.
Although this amount should have lasted 70 days “at the
maximum safe/recommended dose[,]” she filled the prescriptions
for another 210 pills only 19 days later.
She was also given amphetamine salts and lorazepam, a
sedative, with a high starting dose. Another sedative,
clonazepam, was added while L.R. was “still being prescribed the
lorazepam.”
She also received 120 tablets of oxycodone at three times
the usual starting dose even though there was no indication that
a milder narcotic had been tried first. In addition to the
oxycodone, Dr. Soorani eventually prescribed L.R. OxyContin.
While the standard of care requires a slow withdrawal of
narcotics, L.R.’s narcotic prescriptions stopped abruptly.
3. Patient A.S.
A.S. was prescribed frequent, large amounts of zolpidem, a
sedative used for sleep. He received 30 tablets of the maximum
daily recommended dose, but only 11 days later he filled another
prescription for 30 tablets of a slightly higher dose. He received
30 more tablets 11 days later, followed by 30 more 11 days after
that, and another 30, yet again, 11 days later. A.S. continued to
refill the zolpidem as often as every eight days for an unspecified
duration. He was also given a prescription for 100 tablets of
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clonazepam, which “in combination with the very large doses of
zolpidem could result in serious oversedation.”
4. Patient M.J.
M.J. was prescribed the sedatives clonazepam and
zolpidem, which if combined could result in oversedation. At age
63, he was “at a much higher risk of hidden coronary artery
disease or vascular disease[,]” and therefore his use of any
stimulant required caution. Instead, M.J. was given erratic
amounts of amphetamines, with “dosage changes [that] were not
done slowly or in a linear fashion.”
5. Patient R.B.
R.B. was given large amounts of the narcotic Endocet, a
combination of oxycodone and acetaminophen. Six days after
receiving 50 Endocet tablets, he was given another 170 tablets.
Twenty days later, R.B. received another 180 tablets. The result
was “a daily dose of [acetaminophen] well in excess of that
considered safe.” R.B. was also prescribed oxycodone without
acetaminophen, OxyContin, and fentanyl. If taken as prescribed,
this combination of narcotics “would potentially result in a high
risk of oversedation.”
R.B. was also prescribed “testosterone in a very erratic
pattern.”
6. Patient A.D.
A.D. received numerous prescriptions for narcotics,
including 180 oxycodone/acetaminophen tablets followed by
another 170 tablets only 14 days later. In addition, she was
given sedatives such as zolpidem, clonazepam, and diazepam. In
a period of less than three months, A.D. received 240 tablets of
the normal daily dose of zolpidem. The combined amount of
8
medication prescribed “put her at high risk for oversedation,
respiratory sedation, and/or unintentional overdose.”
B. Dr. Soorani’s opposition
Dr. Soorani opposed the petition and offered several
declarations in support of his position.
1. Dr. Soorani’s declaration
Dr. Soorani provided details about his professional
qualifications and areas of expertise. He has been “practicing
pain medicine treating patients with grave psychiatric illness
since 1982.” With an expertise in psychopharmacology, he has “a
thorough knowledge of every antidepressant on the market since
1989.” In 1994, Dr. Soorani became an assistant clinical
professor of psychiatry at the Geffen School of Medicine at UCLA,
and has taught medical students interviewing techniques for
diagnosis and treatment, as well as psychopharmacologic
management. As a “speaker for numerous pharmaceutical
companies,” he has instructed other physicians on new
medications, including Vyvanse, OxyContin, Ambien (zolpidem),
Xanax (alprazolam), and Actiq (fentanyl citrate).
Dr. Soorani denied overprescribing medication to any
patient, including the six patients identified by Dr. Klessig. He
disputed Dr. Klessig’s competency as an expert, stating that
“[s]he does not appear to have the necessary expertise in
psychopharmacology or psychiatry . . . .” Four of the six patients
directed Dr. Soorani “to protect their private medical and
psychiatric records from disclosure.” The other two patients had
not provided their consent to the disclosure.
2. Dr. O’Carroll’s declaration
Dr. Soorani submitted the declaration of Dr. C. Philip
O’Carroll, a physician triple board certified in internal medicine,
9
psychology and neurology, and pain management, who
specializes in treating patients with chronic pain and psychiatric
issues. He opined that Dr. Klessig’s reported findings from the
CURES report were insufficient to conclude that Dr. Soorani
overprescribed “or engaged in any inappropriate treatment.”
He explained that pain specialists “see the most complex
and extreme pain disorders[,]” and that he had “on many
occasions . . . prescribed doses of medication that are well outside
the norm.” “Without a thorough understanding of the clinical
scenario,” according to Dr. O’Carroll, “it is impossible to make a
[judgment] regarding appropriate dosing.”
He also found Dr. Klessig’s qualifications as an expert
lacking, stating that she did “not appear to have the minimal
education, training and experience one would expect a physician
opining on such matters to have.” Because Dr. Klessig was not a
pain specialist or psychiatrist, she would have “little insight into
the complexity of the patients that [such doctors] confront on a
daily basis.” Dr. O’Carroll also disputed the accuracy of
Dr. Klessig’s statement regarding the effect of stimulants on
seizures in ADHD patients.
3. Patient declarations
Dr. Soorani also provided declarations from three of the six
patients, each strongly objecting to the disclosure of their medical
records.
Patient M.J. described Dr. Soorani as “a thorough and
conscientious doctor[,]” who explained the purpose, side effects,
and alternatives to the medications he prescribed. M.J.’s primary
care physician knew about the medications prescribed by
Dr. Soorani and never expressed any concern. M.J. had “shared
private information about [his] relationships, medical history,
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thoughts and feelings” with Dr. Soorani that he wanted protected
from disclosure. He believed that he knew who had provided the
information to the Board that Dr. Soorani allegedly
overprescribed medications. That person “tried to blackmail” the
doctor and M.J.
Patient R.B. explained that he had been severely injured in
a car accident when he was a teenager, which resulted in
numerous surgeries. As a result, he “live[d] in constant and
severe pain[.]” R.B.’s rheumatologist, dermatologist,
endocrinologist, and orthopedist knew about the medications
prescribed to him by Dr. Soorani and believed them to be
“appropriate and necessary to treat [his] complex medical
condition.”
Patient A.D. suffered from degenerative disc disease and
severe arthritis, causing her “excruciating pain[.]” She described
Dr. Soorani as “the kindest, most gentle soul that [she had] ever
met.” He was “not just a man who pull[ed] his patients in the
room and wr[ote] them prescriptions”; rather, he listened and
tried to help patients better themselves. For example,
Dr. Soorani had introduced A.D. to yoga. A.D.’s “life would be
destroyed if [her] records became public”; she had just concluded
a custody dispute with her ex-husband, and she was “terrified
that he w[ould] misuse and mischaracterize” her medical
information before the family court.
C. The trial court’s order
The trial court granted the petition. While recognizing that
the six patients “undoubtedly have a privacy interest in their
medical records,” the court found that disclosure was “clearly
justifie[d]” because of the state’s “compelling interest in ensuring
that the medical care provided by physicians conforms to the
11
applicable standard of care.” The court concluded that “[w]hile
Dr. Klessig’s declaration may not prove that a violation occurred,
it [was] sufficient to establish a reason to suspect that a violation
occurred.” The court ordered Dr. Soorani to produce the
subpoenaed records within 10 days.
This timely appeal followed.
DISCUSSION
I. When the Board Seeks Psychiatric Records, It Must
Demonstrate a Compelling Interest to Overcome a
Patient’s Right to Privacy.
Privacy is an inalienable right under the California
Constitution. (Cal. Const., art. I, § 1; Lewis, supra, 3 Cal.5th at
p. 569.) It is well established that the right to privacy extends to
medical records (Cross v. Superior Court (2017) 11 Cal.App.5th
305, 325–326 (Cross)), which may contain “matters of great
sensitivity going to the core of the concerns for the privacy of
information about an individual.” (Wood v. Superior Court (1985)
166 Cal.App.3d 1138, 1147 (Wood).)3 The privacy interest in
psychiatric records is particularly strong and, in some respects,
entitled to more robust protection than other types of medical
3 The California Supreme Court disapproved Wood, supra,
166 Cal.App.3d 1138 and Board of Medical Quality Assurance v.
Gherardini (1979) 93 Cal.App.3d 669 (Gherardini) to the extent
that those cases “require a party seeking discovery of private
information to always establish a compelling interest or
compelling need[.]” (Williams v. Superior Court (2017) 3 Cal.5th
531, 557 & fn. 8, italics added (Williams).) Wood and Gherardini
were not overruled on any other ground, and we rely on them for
other propositions. (Grafilo v. Cohanshohet (2019) 32
Cal.App.5th 428, 437, fn. 2 (Cohanshohet).)
12
records. (See In re Lifschutz (1970) 2 Cal.3d 415, 421–422, 434–
435, fn. 20; Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1298–
1299.)
But the privacy right is not absolute and at times must
yield to other important interests. (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 37 (Hill); People v. Stritzinger
(1983) 34 Cal.3d 505, 511.) One such countervailing concern is
“the State of California[’s] . . . most legitimate interest in the
quality of health and medical care received by its citizens[.]”
(Gherardini, supra, 93 Cal.App.3d at p. 679.) The Board is a
primary instrument through which the state addresses that
interest. (See Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7–10
(Arnett).)
The Board “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[.]” (Cross, supra, 11 Cal.App.5th at
p. 311; see also Bus. & Prof. Code, § 2004.) The Board has broad
investigative powers to accomplish its mandate, including the
authority to issue investigative subpoenas. (See Bus. & Prof.
Code, § 2220; Gov. Code, §§ 11180, 11181; Arnett, supra,
14 Cal.4th at pp. 7–8.) The Board may seek records of
noncomplaining patients (Wood, supra, 166 Cal.App.3d at
p. 1144), even when no formal charges have been filed against a
physician (Arnett, supra, 14 Cal.4th at p. 8).
“The subpoenas must, however, be issued ‘in a manner
consistent with the California Constitution and the United States
Constitution.’ (Gov. Code, § 11184, subd. (a).)” (Grafilo v.
Wolfsohn (2019) 33 Cal.App.5th 1024, 1033 (Wolfsohn).) Thus,
13
“when information about a patient’s medical record is sought,
California’s constitutional right to privacy places procedural and
substantive limits on the [Board’s] subpoena power.” (Ibid.)
“If a party refuses to comply with the administrative
subpoena, the Board may petition the superior court for an order
compelling compliance. (Gov. Code, §§ 11186, 11187.)”
(Cohanshohet, supra, 32 Cal.App.5th at p. 436.) Although not
“every assertion of a privacy interest under article I, section 1
must be overcome by a ‘compelling interest[]’” (Hill, supra,
7 Cal.4th at pp. 34–35; see also Williams, supra, 3 Cal.5th at
p. 557), because of the highly sensitive nature of psychiatric
records, when seeking judicial enforcement of an investigational
subpoena, “a psychiatric patient’s constitutional right to privacy
requires the [Board] to demonstrate a subpoena for the patient’s
records is supported by a compelling interest and that the
information demanded is ‘“relevant and material”’ [citation] to
the particular investigation being conducted.” (Cross, supra,
11 Cal.App.5th at p. 317.)
II. The Board Made a Sufficient Factual Showing of Good
Cause to Compel Compliance with the Subpoenas.
There is no question that the state has compelling interests
“in ensuring that the medical care provided by Board certified
doctors conforms to the standard of care” (Fett v. Medical Bd. of
California (2016) 245 Cal.App.4th 211, 225 (Fett)) and in
regulating the distribution of controlled substances (Lewis, supra,
3 Cal.5th at p. 574; Cross, supra, 11 Cal.App.5th at p. 317).
Dr. Soorani does not contend otherwise.
Rather, he argues that the Board failed to make a sufficient
factual showing of good cause to justify the invasion of his
patients’ privacy. Specifically, according to Dr. Soorani, the
14
Board was required but failed to show the absence of less
intrusive means to further the state’s compelling interests; that
Dr. Klessig was not qualified to offer her opinion on Dr. Soorani’s
prescribing practices; and that Dr. Klessig’s declaration was
speculative and lacked evidentiary support. We disagree with
each of these contentions.
A. Standards of review and relevant law
To obtain an order compelling Dr. Soorani’s compliance
with the subpoenas, the Board bore the burden of demonstrating
“through competent evidence that the particular records it seeks
are relevant and material to its inquiry sufficient for a trial court
to independently make a finding of good cause . . . . [Citations.]”
(Bearman v. Superior Court (2004) 117 Cal.App.4th 463, 469.)
“The question of whether the Board established good cause
to intrude on the patients’ privacy rights is reviewed under the
substantial evidence standard. [Citation.] However, the overall
question of whether a subpoena meets the constitutional
standards for enforcement is a question of law. [Citation.]” (Fett,
supra, 245 Cal.App.4th at p. 216.)
The abuse of discretion standard applies to the trial court’s
admission of evidence (People v. Waidla (2000) 22 Cal.4th 690,
717), including the determination of whether an expert is
qualified to testify (Fett, supra, 245 Cal.App.4th at p. 222).
B. The Board established the absence of less intrusive
alternatives.
“[A] logical corollary of the compelling interest doctrine is
the alternatives test. . . . If an alternative means of securing the
compelling interest can be devised by which to avoid or minimize
the conflict between the values protected by the constitution and
the values found to be of compelling interest, that must be done.
15
[Citation.] This results in a prohibition, among other things, of
overbroad means of enforcement. It requires that the state
utilize the ‘least intrusive’ means to satisfy its interest.
[Citation.]” (Wood, supra, 166 Cal.App.3d at p. 1148.)
In Cross, the court concluded that although the
requirement that the Board proceed in the least intrusive
manner meant that it had to first “pursue voluntary means of
obtaining the information sought before resorting to compulsory
process,” it did not “impose[] . . . a strict narrow tailoring
requirement . . . .” (Cross, supra, 11 Cal.App.5th at p. 329.)
Rather, “information demanded by an administrative subpoena
in a case like this must be ‘“relevant and material”’ to the
investigation being conducted. [Citations.]” (Ibid.)
Here, the subpoenas were only issued after the Board’s
medical consultant reviewed the CURES report, identified
specific patients subject to irregular prescribing patterns, and
opined that reviewing those patients’ records was necessary to
determine if the prescriptions were appropriately issued, and
after the Board unsuccessfully sought the six patients’
authorizations to access the records. The subpoenas only sought
information that was “‘relevant and material’” (Cross, supra,
11 Cal.App.5th at p. 329) to the Board’s investigation. Instead of
overbroad demands for all patient records, the scope of the
subpoenas was reasonably limited to only those documents that
supported Dr. Soorani’s rationale for writing prescriptions to the
six patients within the specific time period at issue.
Dr. Soorani argues that the Board failed to first employ the
“wide array of investigative tools at its disposal[.]” He faults the
Board for not assessing the credibility of the source of the initial
information it received that he was overprescribing controlled
16
substances and for not obtaining “complete CURES reports for
each” of the six patients. Such inquiries—even if informative—
would not have obviated the need to review the patients’ medical
records to determine whether the prescriptions flagged by
Dr. Klessig were medically appropriate.
We conclude that the Board’s efforts prior to issuing the
subpoenas, combined with the limited scope of the requested
information, satisfy the alternatives test.
C. The trial court did not abuse its discretion by
admitting and relying upon Dr. Klessig’s declaration.
Dr. Soorani contends that, as an internist, Dr. Klessig was
not qualified to opine on the standard of care applicable to a
psychiatrist.
“The competency of an expert ‘is in every case a relative
one, i.e. relative to the topic about which the person is asked to
make his statement.’ [Citation.]” (Huffman v. Lindquist (1951)
37 Cal.2d 465, 476–477.) If an expert “exhibits knowledge of the
subject” on which she opines, she need not be a specialist; a
general practitioner may suffice. (Evans v. Ohanesian (1974)
39 Cal.App.3d 121, 128; accord Fett, supra, 245 Cal.App.4th at
p. 222.)
Dr. Klessig is a Diplomate of the American Board of
Internal Medicine and on the teaching staff of the UCLA medical
school. As a medical consultant for the state, she reviewed
“questionable medical and surgical practices of physicians and
surgeons licensed by the” Board, which required her “to maintain
familiarity with the standard of practice in the State of
California.”
Dr. Klessig appropriately testified “to matters within the
knowledge and observation of every physician, whether or not . . .
17
a specialist. [Citation.]” (Rash v. San Francisco (1962)
200 Cal.App.2d 199, 206.) While the fact that she is not a
psychiatrist specializing in pain management may go to the
weight of her testimony (ibid.; see also Cross, supra,
11 Cal.App.5th at p. 327), it does not render that testimony
incompetent. Possible side effects associated with particular
drugs, as well as standard recommended doses, are within the
general knowledge of every physician, particularly one who is on
the teaching staff of a medical school and employed as a medical
consultant by the state. (See Cross, at p. 327 [“[T]he nature and
properties of [Adderall and Vyvanse], their potential
complications, and the precautions that should be taken by a
physician who prescribes the medications[] . . . are all topics
sufficiently within the training and experience of a physician
with a specialty in internal medicine”].) And, while a
psychiatrist’s expertise might be necessary to justify or condemn
Dr. Soorani’s unusual prescribing practices at a later stage of
administrative proceedings, Dr. Klessig was competent to identify
those unusual prescribing practices at this early juncture.
We find no abuse of the trial court’s discretion in admitting
and relying upon Dr. Klessig’s expert declaration.
D. Dr. Klessig’s declaration provided the trial court
with sufficient competent evidence of good cause.
Dr. Klessig’s detailed analysis of the CURES report, with
its citations to specific prescribing irregularities, provided ample
evidence to support the trial court’s independent finding of good
cause to enforce the subpoenas. (See Wood, supra,
166 Cal.App.3d at p. 1150 [requiring the Board to present
“sufficient factual justification to permit the trial court to
18
independently assess the substantiality of the likelihood of
improper prescription practices”].)
Dr. Klessig recounted specific examples of patients
receiving high doses and large quantities of drugs, some of which
could have had dangerous, even fatal, interactions with other
prescribed medications. This was sufficient to show “the root
facts upon which [the Board’s] inference of improper prescribing
[was] based . . . .” (Wood, supra, 166 Cal.App.3d at p. 1150.) As
this threshold showing was satisfied by Dr. Klessig’s declaration,
it is immaterial that the Board did not present additional
evidence of good cause.4
Dr. Soorani’s expert, Dr. O’Carroll, did not testify that the
prescriptions issued by Dr. Soorani were medically appropriate,
nor did he contest that they were suspicious. Rather,
Dr. O’Carroll explained that “a judg[]ment regarding appropriate
4 Dr. Soorani cites Cohanshohet, supra, 32 Cal.App.5th 428,
a recent case where the appellate court reversed an order
compelling a doctor to produce patient medical records. The
Cohanshohet court found that the declaration of the Board’s
expert was insufficient to show good cause because it did not
provide evidence of the total number of patients treated by the
doctor, “how often similarly situated physicians who specialize in
pain treatment might prescribe these drugs[,] . . . [and] the
likelihood that the prescriptions could have been properly issued,
given what is known of [the doctor’s] practice.” (Id. at p. 440;
accord Wolfsohn, supra, 33 Cal.App.5th at p. 1036.) But
“Cohanshohet d[id] not suggest . . . that the evidence absent in
that case . . . must be present in other cases” to show good cause.
(Wolfsohn, at p. 1036.) Although Dr. Klessig’s declaration also
lacked this type of information, we find that it was not necessary
to a showing of good cause in this case.
19
dosing” is only possible through a “thorough understanding of the
clinical scenario[.]” This supports the Board’s position that the
medical records were necessary to its investigation.
To the extent that Dr. Soorani argues that, because the
actual CURES report upon which Dr. Klessig relied was not
introduced into evidence, her expert opinion lacked evidentiary
support, we disagree. No abuse of discretion can be shown in
allowing Dr. Klessig, as an expert, to “rely on and recite the
CURES report data in explaining the basis for her opinion.
[Citations.]” (Cross, supra, 11 Cal.App.5th at p. 328.)
Dr. Soorani’s reliance on Garibay v. Hemmat (2008)
161 Cal.App.4th 735, 742–743 and Bushling v. Fremont Medical
Center (2004) 117 Cal.App.4th 493, 510 is misplaced because
those cases considered the standard of evidence necessary to
meet a defendant’s burden in a motion for summary judgment.
Here, the trial court correctly distinguished a special proceeding
to enforce an administrative subpoena from a motion for
summary judgment, observing that the Board was not required to
prove misconduct.5
Moreover, given that the Board’s burden was not to prove
wrongdoing but to put forth sufficient evidence to support its
“inference of improper prescribing” (Wood, supra, 166 Cal.App.3d
at p. 1150), we find that disagreements with the accuracy of some
of Dr. Klessig’s statements—such as whether two milligrams of
clonazepam is a very large dose—are immaterial when the
evidence is viewed in its totality.
5 Indeed, Dr. Klessig testified that the only way to determine
whether Dr. Soorani was practicing outside the standard of care
was to obtain his patients’ medical records.
20
We therefore conclude that the petition to compel
compliance with the subpoenas was properly granted.
III. Dr. Soorani’s Motion for Judicial Notice Is Denied.
Dr. Soorani asks us to judicially notice printouts of
webpages from the Prescribers’ Digital Reference and the Mayo
Clinic website, which provide drug summaries for clonazepam.
“It is a fundamental principle of appellate law that our
review of the trial court’s decision must be based on the evidence
before the court at the time it rendered its decision. [Citations.]”
(California School Bds. Assn. v. State of California (2011)
192 Cal.App.4th 770, 803.) Therefore, appellate courts “generally
do not take judicial notice of evidence not presented to the trial
court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996)
14 Cal.4th 434, 444, fn. 3.) Dr. Soorani has provided no
persuasive reason for us to deviate from this general rule. Nor
has he offered any explanation for his failure to present this
evidence to the trial court. Furthermore, our analysis would not
change even if we were to take judicial notice of the documents.
Accordingly, we deny the motion for judicial notice.
21
DISPOSITION
The order of the trial court is affirmed. The Board is
entitled to its costs on appeal.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
22
Filed 10/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DEAN GRAFILO, as Director, etc., B286912
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BS171127)
EMIL SOORANI,
ORDER CERTIFYING
Defendant and Appellant; OPINION FOR
PUBLICATION
KIMBERLY KIRCHMEYER,
as Executive Director, etc.,
Real Party in Interest.
THE COURT:*
The opinion in the above-entitled matter filed on October 2,
2019, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.
*ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.