At the Medical Board of California’s behest, the Senate has introduced SB 920 which grants the Board power to conduct warrantless searches of a physician’s office including medical records without the patient’s prior knowledge or consent. This bill is a radical departure from current practice, and I happen to think the bill is unconstitutional.
This is just one of many bills which have been introduced which target physicians and patients as a result of the pandemic. I know that activist groups around the state are working on ways of fighting these bills, and I am sure you all will hear about their efforts from the organizers of the various groups in due time.
Because I work in the medical board space, my friends at PIC (Physicians for Informed Consent) asked me to provide the Legislature with my thoughts and reasoning on why the bill is unconstitutional and unnecessary. I was happy to oblige. For what it’s worth, here is what I said to the Legislature.
To the California legislators:
Re: SB 920 (Medical Board of California: investigations; records request)
I submit this letter in opposition to SB 920, which bill would give Medical Board investigators and medical consultants the authority to enter a physician’s office unannounced and “inspect” confidential patient records without the patient’s prior knowledge or consent. This bill is a radical change from existing law. More importantly, the bill violates California’s constitutional right of privacy. It may also violate the patient’s and the physician’s Fourth Amendment rights, which protect citizens against unreasonable search and seizures.
I can explain this best by relating the current law and practice, and how we got there. But first, and for your information, I am a health care litigator admitted in California, New York, and Texas, but I have litigated medical board cases (pro hac vice) in most of the states in this country over the past thirty-seven years. And let me just say at the outset that I am not aware of any state medical board (or any other state or federal agency) in this country that has the power to show up unannounced to a physician’s office and obtain immediate access to patient medical records, in the absence of a search warrant, or pursuant to the terms of a prior disciplinary order or a finding of professional misconduct by the actual members of the board (as opposed to administrative staff). I do not believe that kind of governmental power exists in this country.
Medical Board Administrative Subpoenas are Not Subject to HIPAA Protection
After the Medical Board decides to investigate a complaint, it issues an administrative subpoena for the physician’s medical records of the patient who is the subject of the complaint. For your information, the Medical Board is HIPAA exempt, meaning that medical boards (and other state and governmental agencies) are entitled to access patient information which would otherwise be protected from disclosure under federal (and state) privacy statutes. Historically in California, physicians would routinely comply with these administrative subpoenas because they had no choice in that there was no recognized, applicable privacy protection limiting the Medical Board’s access to such records.
The Constitutionally Protected Privacy Right for Medical Records
As a result of a referendum in the early 1970’s, the people of California voted to amend the California Constitution to add a right of privacy against governmental intrusion, or as the California Supreme Court noted against “government snooping” and the secret gathering of personal information without the person’s knowledge or consent. White v. Davis, 13 Cal.3d 757, 775, 120 Cal. Rptr. 94, 106, 533 P.2d 222, 234 (1975).
In a 1979 landmark decision, a California appellate court held that the state constitutional privacy right barred the Medical Board (actually its nominal predecessor) from obtaining a patient’s medical records without either the patient’s consent or demonstrating to a court that there was a compelling need for the records. The Court of Appeal’s language is so impressively clear and cogent it bears repeating:
“The patient should be able to rest assured with the knowledge that “the law recognizes the communications as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure.” (Citation omitted) The matters disclosed to the physician arise in most sensitive areas often difficult to reveal even to the doctor. Their unauthorized disclosure can provoke more than just simple humiliation in a fragile personality. The reasonable expectation that such personal matters will remain with the physician are no less in a patient-physician relationship than between the patient and psychotherapist. The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1. While the amendment does not prohibit all incursions into individual privacy, “any such intervention must be justified by a compelling interest” . . . .” (Emphasis added).
Medical Quality Assurance v. Gherardini, 93 Cal. App. 3d 669, 679, 156 Cal. Rptr. 55, 60 (1979).
The court held that the Medical Board could obtain patient records if it convinced a judge that there was a compelling state interest for the records. (This opinion is so impressively clear and persuasive that it is worth your time and attention to consider it, so I am attaching it to this letter.)
How the Board Obtains the Medical Records Over the Patient’s Objection
If a patient objects to the physician’s complying with the Board’s subpoena, the Board files a special proceeding in a superior court denominated as a motion to compel compliance with an investigational subpoena. This is about as simple of a judicial proceeding as there is. The hearings on these special proceedings are usually held within 60 days of the Board’s filing the paperwork. Per the practices of the superior courts handling these matters, a “tentative decision” is published the day before the “hearing” (i.e., oral argument). The courts usually provide a short window (a week) for the physician to turn over the records. In short, procedurally, the Board can obtain a physician’s medical records over the patient’s objection in a relatively short period of time.
The “Good Cause” Requirement
In the ensuing decades after the court’s landmark decision in Gherardini, the test for the Medical Board’s obtaining medical records over the patient’s objection has evolved and has been made much easier, in large measure as a result of the California Supreme Court’s review of a different privacy issue (monitored drug testing of collegiate athletes) in Hill v. Nat’l Collegiate Athletic Ass’n., 7 Cal. 4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (1994). Under current law, the Board need only show “good cause” for the medical records. Good cause means a demonstrable but particular need for the medical records as part of a Board investigation.
In practical terms, the courts only require a declaration from a physician who has reviewed the Board’s investigation file and relates the basis for thinking that there has been a possible violation of some law enforced by the Board, but that the patient’s medical records are required to prove or disprove a violation.
At this point in time and since Hill vs. NCAA, the overwhelming majority of these motions to compel compliance have resulted in the judicial enforcement of the Board’s subpoenas. In the medical exemptions to school immunization context, I am aware of four Board special proceedings to obtain medical records over the patients’ parental objections. In all four cases, the courts have swiftly enforced the board’s subpoenas. (I represented the physicians protecting the patient’s privacy rights in two of them.)
The very few cases which reject the Board’s special proceeding motions to compel do so if the Board’s physician expert fails to say that the investigation suggests that the physician has violated some Board enforced law and that the records are needed to prove or disprove it. See e.g., Grafilo v Cohanshohet, 32 Cal App. 5th 428, 243 Cal. Rptr. 3d 807 (2019); Grafilo v. Wolfsohn, 33 Cal App.5th 1024, 245 Cal. Rptr. 3d 564 (2019) and Bearman v. Superior Court 117 Cal. App. 4th 463, 11 Cal.Rptr.3d 644 (2004). At least one reported case rejected the Board’s request because it failed to meet a higher showing when mental health patient records are involved. Kirschmeyer v. Phillips, 245 Cal.App.4th 1394, 200 Cal. Rptr. 3d 515 (2016). But as stated, the overwhelming majority of these cases result in an expeditious judicial enforcement of these subpoenas.
And that leads me to a related point. Because (1) it is so easy and routine for courts to issue these orders compelling compliance, and (2) defending against these motions costs considerable money, health care attorneys like myself routinely advise physicians and patients facing a board subpoena to consent to the Board’s request for the patient’s medical records. Frankly, absent unusual circumstances (like in the two above-cited Second Appellate District cases, Cohanshohet and Wolfsohn), it is not a reasonable use of a physician’s financial resources to defend against these motions. While patients might object in principle to having their records released, I have yet to encounter a patient or family of a patient who is willing to pay for the defense of a motion to compel compliance. (And to clarify, the privacy right belongs to the patient obviously, not the physician, but the physician has the right to assert the patient’s privacy rights and refuse to produce the records absent a court order establishing good cause.)
The other point to be made is that patients only object to the Board seeing their medical records if someone other than the patient has filed the complaint, (usually another treating physician, or in the vaccine exemption area, a school). If the patient complains – and many Board complaints are patient-generated – then the patient signs a consent for the physician to release the records.
SB 920’s purported “limited purpose” for its access to Protected Records does not remedy the Constitutional Defect
Here is the bill language which unsuccessfully attempts to limit the impact of the Constitutional violation:
“If the board does not have the consent of a patient to inspect that patient’s records, a board investigator and a medical consultant may inspect records in the office of a licensee for the limited purpose of determining whether good cause exists to seek an investigative subpoena for those records.”
This limitation does not eliminate the constitutional defect in the bill. The constitutional protection accorded to patient medical records prevents “government snooping” into the private medical affairs of California citizens, without a prior court order, period. There is no such thing as a sneak peek at information which is constitutionally protected under a right of privacy. It would make a mockery of the privacy right.
Further, the proposed limited use of the inspection seems pretextual rather than based on a genuine need. As indicated above, the courts usually find good cause so long as there is a detailed declaration of a physician explaining the Board’s need for the records to make a final determination about the appropriateness of the physician’s treatment. Therefore, I question the Board’s actual need for this obvious unconstitutional privacy intrusion.
There is no Legal Authority Supporting SB 920
For the past forty-plus years, the California courts have held that the state Constitution’s privacy right bars the compelled disclosure of patient medical records without a judicial determination affirming the Board’s need for the records in an ongoing investigation.
By what authority do the sponsors of this bill think that this legislature can unilaterally amend the state constitution? Under California law, amendments to the state constitution can only be made by the people via referendum, which was the process used which created the constitutional privacy right.
By what authority do the sponsors think the legislature can reinterpret the Constitution and directly remove a constitutionally required judicial process as determined by the judiciary, which is the government body entrusted with interpreting the state constitution?
It seems to me that what the sponsors should be asking for is that the Legislature propose a referendum to amend the Constitution to remove medical records from the scope of the constitutionally protected privacy right. If that referendum were to pass, then physicians would have little if any right not to comply with an investigational subpoena, and no obvious basis to judicially challenge a subpoena, absent some extraordinary circumstance.
But of course, that still would not get the Medical Board where it wants to go with this bill, which is to turn a statutory investigational subpoena into a non-judicially reviewed search warrant demanding instantaneous compliance. If there is any judicial authority allowing such a profound transformation of a government investigational tool, I am not aware of it. I doubt there could be such authority because a non-judicial/warrantless search would be a clear and obvious violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Without a court order, the California Constitution does not allow the Board to enter a physician’s office and “inspect” patient records. I do not see how the Legislature has the power to transform an unconstitutional exercise of power into a lawful warrantless search. If enacted, I believe SB 920 will be struck down as unconstitutional, and I would expect to be one of many lawyers filing suit against the law. Further, SB 920 is also unnecessary because the current California law provides the Board access to patient records via an expedited special proceeding which the Board has successfully used countless times since patient records became constitutionally protected.
If you have any questions about any of this, you or your staff can reach out to me at the above-listed contact information.
Hope it helps, and as stated, if they pass it, me and some of my friends and colleagues will challenge it.
Rick Jaffe, Esq.