What Happens at the Doctor's No Longer Stays at the Doctor's

Lewis v. Superior Court of California, a recent California case concerning whether the state's medical board breached patient privacy when it used data from a state prescription database – (CURES) – to discipline a physician, has brought scrutiny upon privacy issues surrounding medical databases.  Safeguards for access, infringement upon patient privacy, and ownership of electronic health records are points of contention that force a closer look at how HIPAA and current privacy laws need to be strengthened or relaxed.

State prescription drug monitoring programs have been created to prevent doctor shopping and to track doctors’ and patients’ prescription information.  Pharmacies can track prescription information to ensure that customers are not seeing multiple physicians to get controlled substances.  However, these databases include more information than necessary simply to track prescription of controlled substances—they also track all prescriptions written for uncontrolled substances.

The California Supreme Court will soon decide whether the state’s medical board breached patient privacy when it used data from CURES to discipline a physician, Dr. Alwin Carl Lewis.  The accusations against the doctor stem from a single patient complaint that the doctor allegedly made comments that the patient should lose weight and start a diet that the patient considered unhealthful.  The Medical Board opportunistically used this complaint to justify examining the doctor’s prescribing habits for several patients including the complainant, even though the doctor’s prescribing practices were not at issue.  In addition, during the search the Medical Board used this information to demand other patients’ medical histories via administrative subpoena.  During this investigation, the Medical Board found that the doctor had overprescribed controlled substances for two other patients during a short period, but found no evidence of long-term misconduct.  The doctor was given two years probation. 

This case concerns both doctors’ and patients’ privacy rights.  The Medical Board was given unlimited access to doctors’ and patients’ prescription records without a warrant and based on a single complaint wholly unrelated to the doctor’s prescription writing habits.  In the pending decision, the California Supreme Court will have to decide whether the Medical Board has the authority to search the CURES database without warrant or showing of good cause.  Without such requirements, CURES will likely become a tool to pry into a physician’s ability to practice medicine, even when only a minor, nonmedical complaint is made.  This could also have the effect of making doctors more conservative and defensive, especially in providing unwelcome messages about diet and exercise to patients.

Patients should also be aware that when they receive prescriptions for controlled or uncontrolled substances, they could come under governmental surveillance. Although the government may have legitimate interests in conducting investigations, the ease of access and the scope of the information that can be derived from these databases threaten the right to privacy pertaining medical conditions and personal information.