Court pits privacy versus safety in prescription drug case

The California Supreme Court just armed would be challengers to the state’s prescription drug tracking system.

In 2014, the state’s doctor lobby, the California Medical Association, sued the state physician oversight board, the Medical Board of California, to bar it from using prescribing patterns as a way to police physicians. Dr. Alwin Lewis of Burbank, creator of the “Five Bite Diet” and the subject of a Medical Board investigation, also sued, and, in the process, attacked the board’s use of the Controlled Substance Utilization Review and Evaluation System (CURES), saying the board had violated the privacy rights of Lewis’ patients.

Last month, the Supreme Court of California ruled that the Board was justified in using CURES to monitor Lewis. But if you read carefully what Justice Goodwin Liu wrote there is a new avenue that has opened up for the association or others interested in going after CURES. Let’s begin with the first mention of privacy in the ruling. Note that the court spoke out of both sides of its mouth:

The question in this case is whether the Medical Board of California (Board) violated patients’ right to privacy under article I, section 1 of the California Constitution when it obtained data from CURES without a warrant or subpoena supported by good cause in the course of investigating the patients’ physician, Dr. Alwin Carl Lewis. We hold that it did not because, even assuming that accessing prescription records without good cause constitutes a significant intrusion on a legally protected privacy interest, the Board’s actions in this case were justified.

So, yes, your phones were tapped. But the government had good reason to do so. The problem with this will arise when another court down the road decides that the reason simply wasn’t good enough. Requiring the board to secure a warrant every time it wanted to get access to CURES would be too cumbersome and costly, but the board could secure more structural protections through a bill in the state legislature.

Here’s another reason that might be necessary. The court essentially agreed with Lewis that the privacy concerns he raised were legitimate. The Medical Board of California had tried to argue that Lewis could not possibly be trying to protect his patients’ rights because he didn’t really have control of their prescription records. Those records were part of a database that was actually under the state’s control. “Although the Board recognizes that physicians may assert their patients’ privacy interests in certain cases, it argues that those cases are limited to contexts where the physician is the custodian of the records or where his interests align with his patients’ interests. The Board argues that because Lewis is not the custodian of the records in this case and his interests do not align with his patients, he should be permitted to assert his patients’ rights,” Liu wrote. And then he gave hope to physicians everywhere who may face a similar investigation:

We do not agree that Lewis’s interests are at odds with his patient’s interests. Because an individual’s prescription records contain intimate details about his or her medical conditions, the government’s ability to access these records may cause patients to hesitate to seek appropriate medical treatment.

Whoa. That’s a pretty heavy hammer. If a state regulatory board has to worry about whether its actions are essentially denying people the ability to seek treatment, that could put a permafrost on prescription drug tracking. Liu then quotes previous rulings, including a 1977 U.S. Supreme Court case in which the justices wrote:

Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention.

Unfortunately, Liu does not quote the sentences immediately following, which said:

Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.

Another avenue the California Supreme Court opened for future challenges concerns the nature of the drugs being tracked. Agencies have argued two things for years: 1. That knowing what drugs a patient is taking doesn’t provide much detail into their medical history and 2. Regulating things like addictive painkillers is a public good that outweighs privacy concerns. Liu takes both of these ideas on. He writes that testosterone is regulated as a controlled substance and is used to treat “hypogonadism, a condition in which the male’s testicles do not produce enough testosterone” and that another controlled substance, Alprazolam, is “used to treat anxiety and panic disorders.”

Without explicitly saying so, the justice is implying here that these conditions deserve some extra level of protection or are, in some ways, a cause for embarrassment, an increasingly old fashioned notion in an era where people post their diagnoses on social media and find real comfort in creating communities of people with similar health challenges.

The court also offers a few ways that the board could “limit the privacy intrusion on patients without hampering the Board’s ability to investigate unsafe medical practices.”

Liu wrote:

For instance, the Board could take steps to anonymize patients’ prescription information prior to accessing the CURES database.

Double whoa. The ability of the board to meaningfully connect dots between disparate sets of records is one of the few tools at its disposal. It’s not a police agency with broad powers to gather information and set up surveillance to catch criminals in the act. It’s more like an accountant going in after the fact to piece together what happened. It has to deal with missing records, faked records, and poorly documented records as it is.

Taking out patient names would curb its ability to monitor physicians. And that would, of course, have an impact on patient safety.

Photo by Brendan Smialowski/AFP/Getty Images

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