This is the question de jour in light of the Sacramento Bee’s recent article revealing that the Medical Board has sought the medical records of several vaccine exemption writing physicians in Northern California.
The short answer is that it can if it has “good cause”.
In practice, that means the Board has to present a clear and specific reason why the medical records are needed to determine if the physician violated the standard of care, or some other law which the Medical Board oversees and enforces.
An explanation and context
I have litigated medical board cases in most of the states in this country. In every state that I have worked in, including California, medical boards are HIPAA exempt, meaning a physician can turn over HIPAA protected medical records without violating HIPAA.
In every state that I have worked in, EXCEPT CALIFORNIA, a physician is unconditionally required to turn over to the medical board medical records implicated in a complaint, via a request for records or a subpoena. Failure to do so is a medical board sanctionable offense.
California is more complicated. In 1979, a California appellate court held that patient medical records are protected by the then recent amendment to the state constitution which created a privacy right. According to the court of appeals, the constitutionally protected privacy right in medical records required the Board to show good cause and a compelling state interest for the records.
For those wanting a deep dive, here is that landmark case. (You will love this opinion, but don’t get too excited about it)
The precedent was reaffirmed in subsequent cases. However, it has been whittled down in two important respects. First, subsequent cases acknowledged that there other important rights which compete with the patient’s privacy right, like the government’s right to investigate misconduct, and that right sometimes take precedence over an individual’s privacy rights to protect personal information. The net result of that was the Medical Board now only has to show good cause.
Second, the Board figured out how to make a convincing case to a judge to establish good cause. It submits a statement (declaration) from a physician outlining why the records are needed to properly evaluate a complaint. The declaration also suggests why the information the Board has is evidence of a violation of law, but the records are needed to support, confirm, or show that there was no violation.
From 2005 until last year, there were no cases (or none that I could find) which denied the Board access to a physician’s medical records, (except mental health records which have stronger protection).
For the deep divers, in 2017 the California Supreme Court weighed in and affirmed/cited with approval many of these cases which ordered physicians to produce medical records, because the Board’s need to investigate misconduct and protect the public was held to be more important that the patient’s right of privacy.
Here is the decision:
This year there have been two cases which have denied the Board’s request for records, but they probably do not apply in the vaccine context in light of what I will say next.
The two recent on point cases
Since October 2018, there are been two court cases to compel vaccine exemption writing physicians to turn over their medical records for vaccine exemption patients. Both cases resulted in the court ordering the physician to comply with the subpoena. The case involving Bob Sears’ medical records is not enlightening, except it shows the assembly-line nature of the justice physicians often receive in these kinds of proceedings. But for what it’s worth, here is that ruling.
(I should note that I have been involved in two of these motions to compel compliance with a Board subpoena, unrelated to vaccine issues. In both cases, the physician was ordered to turn-over the medical records, and in both cases, the decisions looked alot like the Sears decision.)
The second case involves Ron Kennedy. For better, but mostly for worse, the judge lays out his reasoning, including the above-mentioned weighing of competing rights. The judge also opines on the problems he found with the exemptions, including the fact that they are not vaccine specific, which he thinks is required. You should read this short opinion, even though it will distress you, because you need to know how judges think about these issues.
Kenney appealed the decision. The court of appeals gave him a short reprieve from the lower court’s order to turn over the medical records, (and that was a nice legal result). However, as recently reported by the San Francisco Chronicle and much commented on in social media, the court of appeals denied his request for a stay pending appeal (called a supersedeas) of the superior court’s decision. The court indicated that so far, it thinks the lower court was correct in ordering Kenney to turn over the records. The court of appeals opinion denying the stay is not binding, but it is an indication of its current thinking based on its initial review the record in the case.
Reports are that Kennedy has complied with the order to compel and has given the Board the records.
In the future, any doctor who forces the Medical Board to go to court for an order compelling compliance with its subpoena for medical records, will have to explain why the judge should not come to the same conclusion as the fellow judges in these two cases. Not impossible, but an uphill battle.
More distressing, if Kennedy continues with his appeal and court of appeals affirms and adopts the criticisms of his exemptions as a basis for the Board’s needing the medical records, that would be unhelpful for many reasons, and would be binding on lower courts.
In short, right now, barring a different and better set of circumstances presented to a court, the Medical Board does appear to have the right to obtain your child’s vaccine exemption medical records. Courts deciding these cases have found, and most likely will continue to find, that the Board’s need to investigate possible misconduct and “protect the public” takes precedence over your family’s state constitutional privacy right.
Rick Jaffe, Esq.