California doctor fails in bid to stop prescription drug tracking

After three years of legal limbo, the California Medical Board is once again safe to do something that may seem quite basic: check to see if doctors are recklessly prescribing drugs.

In 2014, I wrote about how the California Medical Association — the lobbying group for physicians in the state — had sued the state physician oversight board, trying to stop it from examining a physician’s prescribing patterns.

The case centered around the famous Dr. Alwin Lewis of Burbank, the guy behind the “Five Bite Diet,” popularized on Dr. Oz.

California has a system set up to monitor doctors who prescribe large amounts of addictive painkillers, for example, or who prescribe drugs in combinations that would be harmful: the Controlled Substance Utilization Review and Evaluation System (CURES).

As I wrote in 2014, the Medical Board of California opened the door for the medical association to sue by bringing a weak case against Lewis. The board accused Lewis of prescribing drugs to patients without giving them an adequate examination or thinking about how the drugs might interact, according to medical board records. The board also said that his weight loss program was bad for people’s health. One of his patients had been hospitalized in part because of a reaction to two drugs interacting, which caused muscle damage.

When doctors fight a case brought by the medical board, the case often goes to an administrative law judge. In this case, judge Samuel D. Reyes thought so little of the case brought by the board that he rejected many of the allegations. He wrote:

While [Lewis] did in some instances prescribe medications above standard dosages without documenting a reason for such excess … these instances do not rise to the level of ‘repeated’ or ‘clearly excessive’ in light of the patients’ conditions, their long-term relationship with [Lewis], and the relatively small number of instances given the total number of patient contacts.

Reyes also wrote that even though Lewis did a poor of keeping up his medical records in some cases, “There is no evidence that any patient was harmed by [Lewis’] failure to provide additional details in the patients’ charts, by his prescription of medication, or by his failure to order more frequent liver function tests for one patient, accordingly, discipline in the lower range of the spectrum is appropriate.”

The board brought in records from CURES to help make its case. The strategy backfired: The judge wrote that the records backed up Lewis’ account of what happened. Even so, the fact that those records were brought into the legal matter allowed Lewis and the California Medical Association to sue over their use. They sued on the grounds that the Board had violated the privacy rights of Lewis’ patients.

The case made its way to the Supreme Court of California, which ruled last week that the Board did what it needed to do and was justified in its actions. The Justice Goodwin Liu wrote:

Lewis claims that the Board violated article I, section 1 of the California Constitution by accessing his patient’s CURES records. We reject this claim because, even assuming the Board’s actions constituted a serious intrusion on a legally protected privacy interest, its review of these records was justified by the state’s dual interest in protecting the public from the unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.

At the same time, the court may have given a glimmer of hope to doctors hoping to take down CURES. I’ll write more about that in my next post.

[Photo by trophygeek via Flickr.]