SAN FRANCISCO (CN) – Patients have the right to keep their private medication records from the California medical board’s prying eyes, the attorney for a doctor advocating for patient privacy rights told the state Supreme Court Wednesday.
“With all the data that is being gathered about people – and this is health data, the most private data most deserving of protection – this data cannot be accessed willy-nilly,” Los Angeles attorney Henry Fenton said. “There has to be proper cause for them to do it.”
The case began with a complaint from a patient of Dr. Alwin Carl Lewis, identified in court records only as V.C. She saw Lewis just once on May 8, 2008, where she complained of headaches and fatigue. Lewis recommended some tests, suggesting that V.C. could have an iron deficiency.
Lewis also supposedly recommended V.C. – who was overweight – to try the “Five Bite Diet,” a plan he’d developed based on the principle of eating less to lose weight.
Following V.C.’s complaint to the medical board based on her belief that Lewis’ diet was unhealthy, the board launched an investigation and obtained a Controlled Substance Utilization Review and Evaluation System (CURES) report for all of Lewis’ patients from November 2005 to November 2008.
California law requires all pharmacies and clinics that dispense controlled substances to register with the statewide CURES database so the government can keep track of doctors’ prescriptions for highly dangerous, addictive drugs.
The board ultimately decided Lewis’ conduct was within the standard of care and that he did not recommend the diet, but had merely suggested a healthier lifestyle. The board did find some minor misconduct in Lewis’ failure to document some routine questions he’d asked V.C. during the exam, and to note the extent of her obesity.
Lewis petitioned the Los Angeles Superior Court to set aside the board’s decision in 2012, arguing that it was a gross violation of his patients’ privacy for the board to search all of their prescription records going back to 2005.
Lewis lost his challenge at both the trial court and appellate levels.
Aimee Feinberg, an attorney with the Sacramento Office of the Attorney General, said the government has a compelling interest in fighting the widespread opioid crisis in California and throughout the United States, and that patients do not have a reasonable expectation of privacy when it comes to medical regulators monitoring prescription drug abuse.
“The Legislature created CURES for the express purpose of permitting medical regulators to monitor doctors and their prescribing of controlled substances,” she said. “A good-cause requirement of the kind Dr. Lewis is advocating here would hamper the board’s ability to use CURES as the tool the Legislature created it for.”
But Fenton said this argument was a straw man. The board had no interest in protecting patients, he said, and merely wanted to retaliate against Lewis for noting that the three board members themselves were overweight.
“In this particular instance the data was accessed even though there was absolutely no issue of controlled-substance abuse,” Fenton said. “This was a situation where Dr. Lewis mentioned that he thought that the three representatives on the board were perhaps overweight. I think there’s a good chance there was bias and they acted in a retaliatory fashion.”
He added that with unfettered discretion, the medical board could continue to violate patient privacy for no reason.
“We’re dealing with individuals, that’s why we need these standards,” he added. “Investigators, anybody else – if there are no limitations placed on them, they will violate people’s privacy.”
Fenton said most of the time, patients have no idea their records are being exposed to government regulatory bodies, or why those bodies are looking at their information. Such knowledge, he said, might keep patients from seeking treatment for AIDS, cancer, mental illness, or any condition that they previously thought would be kept just between them and their physician.
Justice Mariano-Florentino Cuéllar asked how Lewis has the power to assert his patients’ privacy interests.
“Because no one other than the physician is in a position to do that,” Fenton replied. “Physicians are the only ones who are going to be in a position to speak up for patients and to protect patient records.”
Feinberg said the CURES legislation does protect patients from having their prescription records disclosed to third parties, but said the government has a controlling interest in monitoring controlled substance prescriptions.
Justice Goodwin Liu, who remained largely silent during Fenton’s argument, grilled Feinberg on what would constitute good cause for the medical board to request someone’s prescription record.
“Why couldn’t it be something akin to reasonable suspicion? Just a low standard that says the regulator has to have an articulable suspicion, just as when the police conduct a pat-down search on the street. They can’t just for no reason invade the data,” Liu said.
Liu said it is often the case that laws intended for the public good are used to justify the erosion of the reasonable expectation of privacy.
“What is left of privacy then?” he asked. “The more laws we pass, the more records we keep, the less privacy we have.”
Feinberg replied that people have come to expect that their government will only ask for their information for good and valid reasons.
“Patients reasonably understand and expect that the entities that are part of the health care system and the oversight agencies that are part of that system receive information about patients for legitimate purposes,” she said.
That seemed like cold comfort for Liu, who said, “There’s an aspect of your argument that’s a little bit like ‘trust us.’ And that is a little bit worrisome from the standpoint of the average person whose records are swept up. Indeed, that’s often what the government advocates in a privacy lawsuit – ‘trust us.’”