Judge: Barbara M. Scheper, Case: 24STCP02455, Date: 2024-10-23 Tentative Ruling

Case Number: 24STCP02455    Hearing Date: October 23, 2024    Dept: 30

Dept. 30

Calendar No.

Kimberly Kirchmeyer, Director, Department of Consumer Affairs vs. Aref Bhuiya, M.D., et. al., Case No. 24STCP02455

Tentative Ruling re:  Petition to Compel Compliance with Subpoena Duces Tecum

            The parties dispute whether the State Medical Board and Department of Consumer Affairs (DCA), by and through its director Kimberly Kirchmeyer (Petitioner), has good cause to issue five investigative subpoenas seeking the medical records of patients treated by Aref Bhuiya, M.D. (Respondent). Additionally, Respondent contends that Petitioner has not properly joined the relevant patients to the present action.  The petition is granted. Respondent is ordered to appear and give testimony and produce the records of patients 1–5 for the date ranges specified in the investigational subpoenas duces tecum within thirty (30) days of today’s date.

Govt. Code §§ 11180, et seq.

The Medical Board is charged with reviewing physicians’ quality of medical practice, enforcing the disciplinary and criminal provisions of the Medical Practice Act, and administering the hearing of disciplinary actions. (Bus. & Prof. Code, § 2004.) The board has broad powers to investigate complaints from the public, other licensees, health care facilities, or a division of the board, that a physician may be guilty of professional misconduct. (Id., § 2220, subd. (a).) The DCA carries out medical board investigations. (Id., §§ 159.5, subd. (b)(1), 2006.)

Government Code section 11180 gives the head of the DCA authority to conduct investigations and prosecute actions concerning: “(a) All matters relating to the business activities and subjects under the jurisdiction of the department. (b) Violations of any law or rule or order of the department. (c) Such other matters as may be provided by law.” The head of the DCA may “[i]ssue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, any writing as defined by Section 250 of the Evidence Code, tangible things, and testimony pertinent or material to any inquiry, investigation, hearing, proceeding, or action conducted in any part of the state.” (Gov. Code, § 11181, subd. (e).)

Subpoenas served by the department head must be consistent with the California and United States Constitutions, and Code of Civil Procedure sections 413.10 et seq. (Id., § 11184, subd. (a).) The superior court of the county in which an investigation is conducted has jurisdiction to “compel the attendance of witnesses, the giving of testimony, the answering without objection of interrogatories, and the production, inspection, and copying of papers, books, accounts, documents, and other items described in subdivision (e) of Section 11181 as required by any subpoena issued by the department head.” (Id., § 11186.) If any witness refuses to testify or produce documents in response to an investigative subpoena, the department head may petition the superior court for an order compelling the person to testify or produce documents. (Id., § 11187, subd. (a).) “The petition shall set forth the following: (1) That due notice . . . was given. (2) That the person was subpoenaed . . . (3) That the person failed and refused to answer the interrogatories or to attend or testify.” (Id., § 11187, subd. (b).)

Upon the filing of the petition, the court must order the non-compliant individual to show cause. (Id., § 11188.) “If it appears to the court that the subpoena was regularly issued . . . by the head of the department, the court shall enter an order that the person appear before the officer named in the subpoena at the time and place fixed in the order and testify . . . as required.” (Ibid.)

Patients’ Rights to Privacy and the Good Cause Requirement

            Respondent argues that the subpoenas at issue violate the privacy rights of patients 1–5. “[W]hen information about a patient’s medical record is sought, California’s constitutional right to privacy places procedural and substantive limits on the DCA’s subpoena power. (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1033.) However, invasion of a privacy interest does not violate the California Constitution if it is justified by a competing interest. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38.) “[Legitimate interests’] relative importance [are] determined by their proximity to the central functions of a particular public or private enterprise. Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests.” (Ibid.) Although a patient has a robust privacy interest in their medical records, “it must be balanced against the state’s legitimate and important countervailing interest ‘in ensuring that the public receives medical care that conforms with the standard of care.’” (Grafilo, supra, at pp. 1034–1035.) The state’s interest prevails if the DCA can show good cause to order the materials disclosed. (Id. at p. 1035.)

Respondent argues that Petitioner has not presented competent evidence showing good cause as required under Grafilo and Wood v. Superior Court (1985) 166 Cal.App.3d 1138. Petitioner has an obligation to produce competent evidence supporting the trial court’s finding of good cause for subpoena enforcement. (Whitney v. Montegut (2014) 222 Cal.App.4th 906, 920.) An expert’s declaration pointing out specific examples of prescribing irregularities is sufficient to support a finding of good cause. (Ibid.)

            Here, all five patients have objected to the release of their records. (Decl. Patient 1, Ex. A; Decl. Patient 2, Ex. A; Decl. Patient 3, Ex. A; Decl. Patient 4, Ex. A; Decl. Patient 5, Ex. A.) Petitioner submits the declaration of Donald S. David, M.D., a District Medical Consultant for the Medical Board of California, in support of its petition. (David Decl. ¶1.) David is familiar with the appropriate standards for the proper prescribing of controlled substances. (Id. ¶ 3.) After reviewing the Prescriber History Report (PHR) of Respondent, David determined that there were suspicious subscribing patterns among some of Respondent’s patients. (Id. ¶ 5.) David has since reviewed the Patient Activity Reports (PAR) of these patients and determined that good cause exists to believe that Respondent has violated the Medical Practice Act. (Id. ¶ 6, 8.) Just as in Whitney, this information and David’s statement of good cause supports a finding of good cause. David examined medical records and identified irregularities and offered a statement of good cause. (Ibid.) Thus, the Court finds that Petitioner has presented evidence showing good cause as required under Wood.

            Respondent also argues that because the PARs were not submitted as a part of the Petition, David’s declaration is based on inadmissible hearsay. Hospital records are hearsay, though they may be used as a basis for an expert medical opinion. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) However, an expert witness may not transform inadmissible matter into independent proof of a fact simply by reciting the information in those sources. (Ibid.) Respondent’s reliance on Garibay is misguided. In Whitney, the court accepted the same evidence offered here, an examination of medical records by a medical expert, as competent evidence sufficient to support the DCA’s petition. (Whitney v. Montegut, supra, 222 Cal.App.4th at p. 920.) Evidence supporting a finding of good cause is all that is required here, and David’s declaration is sufficient. Accordingly, the Court finds the good cause requirement satisfied.       

The patients need not be joined in the case.

            Respondent argues that the patients whose medical records are sought must be named and properly served as real parties in interest for the present petition. This is not required. In Whitney, “the patients were given the opportunity to consent to disclosure of their records, and when consent was not given, the patients received notice of the subpoena and their right to consult with counsel and object to the subpoena.” (Whitney v. Montegut, supra, 222 Cal.App.4th at p. 919.) Patients are protected by Government Code section 11183, which prohibits an officer from divulging any information acquired through use of section 11181, subdivision (e). Here, patients were provided the requisite notice of the investigational subpoena and informed of their rights. (Akopova Decl. ¶ 14, 38.) They have been provided a fair opportunity to be heard through written objection. Thus, Respondent’s argument fails under Whitney.