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“Patient privacy” no defense for doctor charged with illicit prescribing

Board investigators did not violate patient privacy when they used a state prescription database to gather evidence against a doctor accused of providing illicit prescriptions, a California court ruled April 15

(Medical Board of California v. Chiarottino).

The Medical Board of California began investigating physician Michael Chiarottino in 2011 after receiving a tip that he was inappropriately providing prescription drugs. As part of the investigation, board investigators accessed California’s Controlled Substances Utilization Review and Evaluation System, or CURES, a database of prescription records created to help law enforcement combat prescription drug abuse, and obtained a report of Chiarottino’s prescribing history and the prescription and pharmacy records for five of his patients.

After reviewing the records, board personnel determined that Chiarottino’s prescribing history was dangerous and irregular. As a follow-up, the board served subpoenas on both Chiarottino and the five patients whose prescription records were accessed through CURES, seeking those patients’ medical records.

The patients objected and Chiarottino refused to supply the records. In response, the board successfully filed for a court order to enforce the subpoena. Chiarottino appealed and the case went to the First District Court of Appeal of California in San Francisco.

In his appeal, Chiarottino argued that the board had violated the privacy rights of his patients, as protected by the California Constitution, when investigators accessed their prescription and pharmacy records through CURES, which Chiarottino argued made the resulting subpoenas invalid.

The Court of Appeals did not agree. Justice Robert Dondero, in the court’s written opinion, wrote that the state’s compelling interest in policing prescription-drug abuse outweighed the limited privacy expectations of patients in the CURES database.

“For purposes of our decision here,” wrote Dondero in dismissing the appeal, “we assume patients have a reasonable expectation that their prescription records will not be disclosed to persons who are not actively involved in their care. Balancing society’s substantial interest in reducing the illegitimate use of dangerously addictive prescriptions against the minor intrusion upon a patient’s reasonable expectations of privacy when he or she is given a prescription by a treating physician, we concluded that, as applied to such patients, the Board’s actions here in accessing and compiling data from the CURES database did not violate . . . the state Constitution . . . Further, even a reasonable expectation of privacy is somewhat diminished as it is widely known that such investigative actions are possible with respect to controlled substances.”