Court Allows Medical Board’s Peek Into CURES Patient Information

California’s interests in curbing drug abuse can overcome a patient’s expectation of privacy in his or her prescription history stored on the state’s CURES database, according to the Court of Appeal.

The court rejected a challenge by a physician that the Medical Board of California violated his patients’ privacy when it looked into his prescriptions via the state’s Controlled Substance Utilization Review and Evaluation System (CURES) without a subpoena.According to the facts set forth in the opinion, Medical Board of California v. Michael Chiarottino, the Medical Board obtained information in August 2011 that Dr. Chiarottino was possibly prescribing excessive medications to patients in violation of the Medical Practices Act. A Board investigator then obtained a CURES report of the physician’s prescribing history between August 2009 and February 2012. The investigator also obtained CURES reports on the prescription histories of five of Dr. Chiarottino’s patients over a 12-month period in 2011 and 2012 and the corresponding pharmacy records for these same patients.

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The Medical Board’s medical expert conducted an independent review of these reports and identified “significant concerns and irregularities” in the physician’s prescriptions for controlled substances to these patients.

In February 2012, the Medical Board’s investigator sent letters to the five patients requesting release of their medical records related to prescriptions they received from Dr. Chiarottino and also subpoenaed the physician to produce the patients’ records. The patients objected to the release of their records and Dr. Chiarottino refused to produce the medical information.

When the Medical Board turned to court to enforce the subpoenas, it argued that it needed the records to “fulfill its monitoring responsibilities of public protection as mandated by California law.” Subject to certain limitations, the trial court said that Dr. Chiarottino must produce the records.

On appeal, Dr. Chairottino contended that the Medical Board’s “unfettered and extensive access to two-and-a-half years’ worth of all his patients’ CURES prescription information” violated his patients’ privacy rights under the California Constitution.

The First District Court of Appeal in Northern California began its analysis by noting that though patients can expect privacy in their medical information, “it is also well settled that an individual’s constitutional right to privacy is not absolute.”

The appellate court noted when schedules II, III, and IV controlled substances are concerned, pharmacies are required under state law to provide weekly updates to the State Department of Justice (the same agency that maintains jurisdiction over CURES) with the names, addresses, and phone numbers of prescribed users. “This information, in turn, may be given to state, local, or federal agencies for purposes of criminal or disciplinary investigations,” the court explained.

“Defendant argues that the Board violated the rights of all his patients by, essentially, conducting a fishing expedition into records of his prescribing activities as reflected in the CURES database,” the Court said. “However, there is no evidence that the Board acted outside the scope of its investigative mandate.” The court noted that Dr. Chiarottino did not contend that the Medical Board improperly disclosed any CURES to a third party nor did he argue the Medical Board had any improper motive in deciding to investigate his prescription activities.

“Balancing society’s substantial interests in reducing the illegitimate use of dangerously addictive prescription drugs against the relatively minor intrusion upon a patient’s reasonable expectations of privacy when he or she is given a prescription by a treating physician, we conclude that, as applied to such patients, the Board’s actions here in accessing and compiling data from the CURES database did not violate Article 1, Section 1 of the state Constitution.”

 

Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc.(CAP).

 

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