Board subpoenas , Yes (usually); De facto search warrants, No

Board subpoenas , Yes (usually); De facto search warrants, No

TMB personnel face damage claim for illegally trying to search and seize medical records

 In the late 1980s, my New York law firm did some work for Robert Atkins involving the New York medical board, (aka the Office of Professional Medical Conduct). The board wanted the records of a number of his ozone therapy patients. The patients didn’t want their records released, so Bob Atkins hired our firm to try to quash the subpoena.   We made precedent, but not in a good way. The New York appellate court ruled against us and held that the board has a right to medical records, even over the objection of the patient. In virtually every state, with some variations, a medical board can obtain patient medical records in the absence of patient consent and despite HIPAA. (The one exception is California where if the patient doesn’t want his or her records released, the medical board has to go to court to convince a judge that there is good cause for releasing the records.  I am doing one of those cases right now.)

How this usually shakes out is that a physician receives a letter from the board about a complaint and asks for medical records. The letter will also usually include a subpoena and a business records affidavit form so that the medical records can be admissible in an administrative proceeding. The board’s letter usually gives the physician a few weeks to respond and turn-over the records.

Not too long ago, the Texas Medical Board tried something different for a doctor who they suspected might be operating an unregistered pain management clinic. A medical board investigator along with a DEA agent showed-up at a physician’s office and demanded access to certain medical records on the spot using presenting an instant subpoena (subpoena instantar).

The physician wasn’t in.  The investigators probably falsely represented to the physician’s assistant that if she didn’t comply, the doctor would get in trouble and might lose his license.   The investigators conducted a search of the premises and looked at the records. The doctor wasn’t happy and filed a federal lawsuit against the investigators, the executive director of the medical board and the state, for declaratory relief for a number of things as well as for damages.  Suing medical boards is extremely satisfying emotionally, but very costly and basically never results in a positive, dispositive legal decision. That is because the courts don’t like interfering with ongoing state administrative proceedings, and the federal courts are even more hesitant to get involved in, let alone stop a state administrative action. In fact, practically speaking it is virtually impossible to have a state or federal court stop a board action. The state law concept is called “exhaustion of administrative remedies” and the federal law doesn’t stop board actions under what is called the “Younger abstention” doctrine which says that federal courts shouldn’t interfere with on-going state administrative actions.

The other key concept is “sovereign immunity” which means that you can’t sue the state or the federal government for money damages, unless the sovereign specifically gives an individual the right to do so. No state gives an individual the right to sue it for damages for an illegal search. One rationale is that the state cannot act illegally. On the other hand, individual investigators can act illegally, and as a result, an individual investigator can be sued personally for constitutional violations in some circumstances, the main circumstance being if there was a clearly established constitutional right, and it is assumed that investigators know what those clearly established rights are.

Most of the Texas physician’s lawsuit was dismissed in the defendants’ initial motion to dismiss. But the judge did two wonderful things for the future benefit of Texas doctors. First, he held that the search of the doctor’s office was illegal. Second, he let the case go forward on the damage claim against the individual defendant investigators. For many reasons, it is doubtful that the doctor will ever get any money from the investigators or even recoup his attorneys’ fees. But the judge’s decision, might just stop or slow down this whole subpoena instantar thing which in effect turns a legal subpoena into an illegal search and seizure warrant.

So if you practice medicine in Texas, and board investigators show-up at your office and demand you turn over medical records immediately, you could consider telling the investigator that he/she is violating your clearly established right to be free from an illegal search and seizure and that a violation of that right may result in a suit against the investigator for damages. If you’re not the confrontational type, then just tell them to leave the papers and you’ll have your attorney get back to them. Maybe even have a copy of the judge’s decision handy. (A pdf of it is at the end of this blog).

A caveat: this case applies only to a Texas medical board subpoena/investigator. If you have a DEA registration and dispense controlled substances (even things like testosterone or other scheduled BHRT’s) the DEA has the right to present an inspection notice, enter your office and inspect your DEA paperwork (inventory, dispensing logs, orders, receipts, basically everything piece of paper you are required to maintain under DEA paperwork requirements). So make sure all your paperwork is in order.  If it isn’t, well just make sure it is.

Rick Jaffe

rickjaffeesquire@gmail.com   

 3.29.16_ruling_against_TMB

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