Filed 2/14/23; Modified and Certified for Publication 3/15/23 (order attached)
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
KIMBERLY KIRCHMEYER, as
Director, etc.,
A165128
Plaintiff and Respondent,
v. (San Francisco City & County
Super. Ct. No. CPF-22-517709)
HELIOS PSYCHIATRY INC. et al.,
Defendants and Appellants;
REJI VARGHESE, as Deputy
Director, etc.,
Real Party in Interest and
Respondent.
While investigating the propriety of psychiatrist Jennifer Dore’s
prescription of controlled substances to a family member, the Medical Board
of California (Board) — an administrative agency within the Department of
Consumer Affairs — served a subpoena and interrogatories on Dr. Dore and
her practice, Helios Psychiatry, Inc. (Helios; collectively, Dr. Dore) pursuant
to Government Code, section 11180, et seq. (Statutory references are to this
code.) After Dr. Dore refused to provide the requested documents and
information, the Board petitioned for an order compelling their production.
The trial court granted the petition, impliedly concluding the Board
1
established good cause for the disclosure of the private medical information.
We affirm.
BACKGROUND
Dr. Dore is a Board-certified psychiatrist and surgeon, and the founder
of Helios. A patient filed a complaint with the Board alleging she
inappropriately prescribed controlled substances and violated professional
boundaries. The Board opened an investigation and discovered suspected
irregularities in the manner in which Dr. Dore prescribed controlled
substances. For example, between January 2019 and September 2020, Dr.
Dore prescribed two controlled substances — Adderall and Klonopin — to
another patient, a family member employed by Helios (family member).1 The
Board deemed it necessary to obtain the family member’s medical records to
evaluate whether the prescriptions were “medically appropriate and within
the standard of care.”
The Board interviewed Dr. Dore, but she declined to answer questions
about the prescriptions. Thereafter, the Board served her with an
investigative subpoena seeking medical records supporting the prescription of
the two controlled substances to the family member between January 2019
and September 2020. It also served her with investigative interrogatories
requesting information about the treatment she provided to the family
member and a description of the family member’s employment at Helios. Dr.
Dore refused to produce the records and objected to the interrogatories. Her
family member objected to the subpoena on privacy grounds.
1 Other aspects of the Board’s investigation — including its
investigation into an allegation that Dr. Dore violated federal regulations by
obtaining ketamine prescriptions in her name and using the prescriptions for
“office stock” to dispense to patients — are not at issue.
2
Thereafter, the Board petitioned for an order compelling Dr. Dore to
comply with the investigative subpoena and interrogatories. It asserted
there was a compelling need for the information, and it argued the
information was relevant and material to the investigation into whether she
complied with the standard of care when prescribing controlled substances to
her family member. In a supporting declaration, investigator Michelle
Metcalf stated a search of the Controlled Substance Utilization Review and
Evaluation System (CURES) database — a repository of prescriptions written
for specified controlled substances — revealed Dr. Dore prescribed controlled
substances to the family member. Metcalf’s supplemental declaration
attached two CURES reports. The first report indicated Dr. Dore prescribed
Adderall to the family member six times over an 11-month period, and she
prescribed Klonopin twice over a six-month period. The second report
showed she prescribed the family member Klonopin and ketamine in 2015
and 2016. The Board retained Board-certified psychiatrist Laura Davies as
an expert; she reviewed the CURES reports and opined it was necessary to
obtain the family member’s medical records to evaluate whether Dr. Dore
complied with the standard of care.
In a supporting declaration, Dr. Davies listed her educational history
and medical training. She also described the nature of the two controlled
substances, their potential complications, and the precautions that should be
followed when prescribing them. Further, she attested to her familiarity
with the standard of care for the practice of psychiatry, and with the rules,
regulations, and standard of care for prescribing controlled substances. She
noted an ethics opinion issued by the American Medical Association
counseled physicians against treating family members except in emergencies.
This admonishment, she explained, applied “with particular emphasis” to
3
psychiatrists as they are required to maintain appropriate boundaries with
patients and should not serve in multiple roles. According to Dr. Davies, it is
“well understood among psychiatrists, and is part of the training in
psychiatry, that treating family members is outside the standard of care.
And prescribing controlled substances is in virtually all circumstances, far
outside the standard of care.”
Dr. Davies opined it was unlikely that an emergency — such as the
unavailability of another qualified physician or a health-threatening
situation — justified the prescriptions to Dr. Dore’s family member because
medical care is widely available in the Bay Area and the family member had
no prior prescriptions for the two controlled substances. Moreover, even if an
emergency justified the prescriptions, thorough supporting documentation in
the medical record would be required. Dr. Davies stated it was important for
the Board to obtain the family member’s medical records and Dr. Dore’s
interrogatory responses to evaluate her basis for prescribing the controlled
substances to the family member, and to determine whether she properly
documented the family member’s treatment in the medical record.
Dr. Dore opposed the petition to compel compliance with the
investigative subpoena and interrogatories. As relevant here, she argued the
Board failed to demonstrate either a compelling need for her family member’s
constitutionally protected information or good cause for the disclosure.
Marvin Firestone, a psychiatrist and licensed California attorney, offered
a lengthy declaration disagreeing with Dr. Davies’s assertion that prescribing
controlled substances to family members presumptively violates the standard
of care. He also challenged the notion that psychiatrists are taught treating
family members is outside the standard of care. Referencing several Board
publications, Dr. Firestone acknowledged the Board “ ‘discouraged’ ” the
4
practice, but he insisted there was “ ‘no law’ ” prohibiting it. He posited
“most physicians treat and prescribe medications to family members,” and
noted psychiatrists may decide to treat a family member after considering
“myriad” factors, including the family member’s best interest. In Dr.
Firestone’s view, the Board failed to demonstrate Dr. Dore’s conduct fell
outside the standard of care.
In her declaration, Dr. Dore acknowledged physicians are discouraged
from treating family members, but she stated the practice is commonplace.
She exercised “clinical judgment” when deciding to provide psychiatric
services to her family member, and she documented the rationale for her
decision in the family member’s medical record, where she also provided
a “thorough history, follow-up, and coordination of care.” The family member
provided a declaration explaining his reason for seeking treatment from Dr.
Dore, identifying the medications she prescribed, and describing the
treatment she provided. The family member represented receiving Adderall
and Klonopin prescriptions from “prior physicians.”
The trial court granted the petition to compel compliance with the
investigative subpoena and interrogatories, impliedly concluding the Board
established good cause to justify the production of the family member’s
private medical information. The court found the Board had a compelling
interest in investigating Dr. Dore’s allegedly improper conduct in prescribing
controlled substances to the family member, and that the information was
relevant and material as it would show whether her conduct was justified. It
took judicial notice of Board publications providing guidance on treating
family members, and it concluded the expert declarations created a factual
dispute as to whether — absent exceptional circumstances — it was improper
for Dr. Dore to prescribe controlled substances to a member of her family.
5
The court, however, declined to resolve the dispute. As it explained, the
Board would determine whether Dr. Dore’s conduct fell outside the standard
of care during an administrative proceeding, and she could challenge that
finding by way of a mandate petition.2 The court ordered Dr. Dore to produce
the family member’s medical records and answer the interrogatories.
DISCUSSION
Dr. Dore contends the trial court erred in granting the Board’s petition
to compel compliance with its investigative subpoena and interrogatories
(collectively, investigative subpoena or subpoena).
Before addressing the argument, we provide an overview of the
statutory scheme. The Board has a duty to “protect the public against
incompetent, impaired, or negligent physicians.” (Arnett v. Dal Cielo (1996)
14 Cal.4th 4, 7.) “It is authorized to investigate complaints that a physician
may be guilty of ‘unprofessional conduct,’ ” which includes “prescribing
prescription drugs ‘without an appropriate prior examination and a medical
indication.’ ” (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1032
(Wolfsohn); Medical Bd. of California v. Chiarottino (2014) 225 Cal.App.4th
623, 630 (Chiarottino).) To accomplish this mandate, the Board may issue an
investigative subpoena “even when no formal charges have been filed against
a physician.” (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507–508
(Soorani); § 11181, subd. (e).)
An investigative subpoena — which must be issued in a manner
consistent with the state and federal Constitutions — is valid if it inquires
2 The trial court noted Dr. Dore appeared “to have engaged in
unprofessional conduct” in using “ketamine prescribed to her” for patient use,
and that while the conduct was not “directly relevant” to the petition, it
strengthened the Board’s justification for a “wider investigation of her
practices in prescribing controlled substances.”
6
“into matters the agency is authorized to investigate,” is “ ‘not too
indefinite,’ ” and “the information sought is ‘reasonably relevant’ to the
investigation.” (State Water Resources Control Bd. v. Baldwin & Sons,
Inc. (2020) 45 Cal.App.5th 40, 55; Soorani, supra, 41 Cal.App.5th at p. 508.)
The Board may petition the trial court for an order compelling compliance
with the subpoena; if the court is satisfied “ ‘the subpoena was regularly
issued,’ the court shall order that the person appear and produce the required
documents at a certain time.” (Wolfsohn, supra, 33 Cal.App.5th at p. 1033;
§§ 11187, subd. (a), 11188.) Records obtained pursuant to the subpoena must
be kept confidential during the Board’s investigation. (Kennedy v. Superior
Court (2019) 36 Cal.App.5th 306, 310.)
When the Board seeks a patient’s medical records, “ ‘California’s
constitutional right to privacy places procedural and substantive limits on
the [Board’s] subpoena power.’ ” (Soorani, supra, 41 Cal.App.5th at p. 508,
brackets in original.) While robust, this privacy right is not absolute; at
times, it must “yield to other important interests.” (Id. at p. 507.) Courts
evaluate potential privacy invasions “by balancing the privacy interest at
stake and the seriousness of the threatened invasion with the strength of
legitimate and important countervailing interests.” (Wolfsohn, supra,
33 Cal.App.5th at p. 1034.) Additionally, courts consider whether protective
measures and alternatives may minimize the privacy intrusion. (Ibid.)3
3Our state Constitution guarantees patients a right to privacy in their
medical information. (Chiarottino, supra, 225 Cal.App.4th at p. 631.) This
privacy right encompasses psychiatric records, which are “entitled to more
robust protection than other types of medical records.” (Soorani, supra,
41 Cal.App.5th at p. 507.) Physicians typically have standing to assert their
patients’ privacy interests. (Wood v. Superior Court (1985) 166 Cal.App.3d
7
Applying this framework, courts have permitted the Board to review
a patient’s medical records pursuant to an investigative subpoena upon
a showing of good cause. (Wolfsohn, supra, 33 Cal.App.5th at p. 1035; Lewis
v. Superior Court (2017) 3 Cal.5th 561, 575.) To satisfy this burden, the
Board must demonstrate — through competent evidence — the subpoena is
supported by a compelling interest and the information sought is relevant
and material to the investigation. (Soorani, supra, 41 Cal.App.5th at p. 508;
Wolfsohn, at p. 1035.) We review a trial court’s good cause determination
for substantial evidence. (Fett v. Medical Bd. of California (2016)
245 Cal.App.4th 211, 216.) We apply a de novo review to the question of
whether the subpoena meets the constitutional standards for enforcement.
(Wolfsohn, at p. 1035.)
At the outset, we note the Board was undoubtedly authorized to issue
the investigative subpoena to fulfill its mandate to protect public health and
safety, and to investigate whether Dr. Dore violated the standard of care by
prescribing controlled substances to a family member. (Arnett v. Dal Cielo,
supra, 14 Cal.4th at pp. 7–8; Chiarottino, supra, 225 Cal.App.4th at pp. 629–
630.) Additionally, it is undisputed the trial court balanced the competing
privacy and state interests and considered whether protective measures or
alternatives could minimize the privacy intrusion. (See Fett v. Medical Bd. of
California, supra, 245 Cal.App.4th at pp. 224–225.) Thus, the sole issue
before us is whether substantial evidence supports the court’s implied finding
1138, 1145, overruled on another point as stated in Williams v. Superior
Court (2017) 3 Cal.5th 531, 557–558 & fn. 8.) Patients undoubtedly have
a strong privacy interest in their psychiatric records, but California has an
important countervailing interest both in ensuring “ ‘medical care provided
by Board certified doctors conforms to the standard of care’ [citation] and in
regulating the distribution of controlled substances.” (Soorani, at pp. 507–
508; Chiarottino, at p. 636.)
8
that the Board demonstrated good cause to justify the disclosure of the
medical records. After carefully reviewing the record, our answer is yes.
In support of its petition to compel compliance with the investigative
subpoena, the Board offered evidence it received a complaint that Dr. Dore
had — among other things — improperly prescribed controlled substances to
a patient. It opened an investigation and discovered she had prescribed
controlled substances to another patient, a family member and employee. Dr.
Davies’s declaration described the controlled substances, including potential
dangers they could pose, and attested to her familiarity with the standard
of care for the practice of psychiatry and the prescription of controlled
substances. Relying in part on an ethics opinion from the American Medical
Association discouraging physicians from treating family members, Dr.
Davies opined “treating family members is outside the standard of care. And
prescribing controlled substances is in virtually all circumstances, far outside
the standard of care.” (Italics added.)
Dr. Davies also noted psychiatrists are required to maintain
appropriate boundaries with patients, and they should not serve in multiple
roles, e.g., as doctor, employer, and family member. Additionally, she
suggested it was highly improbable an emergency justified the prescriptions,
and she explained her reasons for reaching this conclusion. Thus, ample
evidence supports the trial court’s conclusion that the Board has a compelling
interest in reviewing the family member’s medical records to ensure Dr.
Dore’s conduct conformed to the standard of care, and to regulate the
distribution of controlled substances. (Soorani, supra, 41 Cal.App.5th at
p. 508; Cross v. Superior Court (2017) 11 Cal.App.5th 305, 317; Chiarottino,
supra, 225 Cal.App.4th at p. 636.)
9
Substantial evidence also supports the trial court’s conclusion that the
medical records are relevant and material to the Board’s investigation.
(Cross v. Superior Court, supra, 11 Cal.App.5th at p. 317.) The “relevance
standard is construed broadly” for investigative subpoenas (State Water
Resources Control Bd. v. Baldwin & Sons, Inc., supra, 45 Cal.App.5th at
p. 57), but such subpoenas must “be carefully crafted to winnow out
immaterial records.” (Cross, at p. 329.) The Board easily satisfied this
standard by offering evidence it tried to obtain the information through less
intrusive means, and evidence — from Dr. Davies — that it needed to review
the medical records to determine whether Dr. Dore violated the standard of
care. (Soorani, supra, 41 Cal.App.5th at pp. 509–510, 512 & fn. 5; Cross, at
pp. 329–330.) Additionally, the subpoena was limited in scope — it sought
documents and information supporting Dr. Dore’s rationale for prescribing
the controlled substances to her family member between January 2019 and
September 2020. (Cross, at pp. 329–330.)
Dr. Dore acknowledges that to establish good cause for disclosure of
the medical records, the Board need not prove she breached the standard
of care. We agree. When petitioning to compel compliance with an
investigative subpoena, the Board’s burden is not to prove wrongdoing, but
rather to provide evidence supporting an inference the physician departed
from the standard of care. (See Soorani, supra, 41 Cal.App.5th at p. 512.)
As one court has explained, good cause requires “sufficient factual
justification” to permit the trial court to “gauge the likelihood that the records
sought will reveal physician misconduct.” (Wood v. Superior Court, supra,
166 Cal.App.3d at p. 1150, italics added.) Dr. Davies’s declaration satisfies
this standard — it sets “forth detailed facts showing good cause to believe
10
that [Dr. Dore] . . . acted in a way that departs from the standard of care.”
(Fett v. Medical Bd. of California, supra, 245 Cal.App.4th at p. 221.) But
a proceeding to compel compliance with an investigative subpoena is not, as
Dr. Dore seems to suggest, akin to a motion for summary judgment. For this
reason, we perceive no error in the trial court’s refusal to make a factual
determination regarding the appropriate standard of care. (See Soorani, at
p. 512.) If the Board completes its investigation and determines Dr. Dore
violated the standard of care, it will initiate a disciplinary proceeding under
the Medical Practice Act (Bus. & Prof. Code, §§ 2000, 2004), where it will
bear the burden to prove she acted outside the standard of care. (See Davis v.
Physician Assistant Bd. (2021) 66 Cal.App.5th 227, 231–233.)
Next, she maintains the Board’s evidentiary showing is insufficient
because Dr. Davies did not offer an “opinion concerning how often other
practitioners would have issued the prescriptions.” We are not persuaded for
two reasons. First, Dr. Davies opined that prescribing controlled substances
to family members is outside the standard of care except in emergencies, and
that it was unlikely an emergency justified the prescriptions to Dr. Dore’s
family member. From this testimony, the trial court could infer a reasonably
prudent psychiatrist in a nonemergency situation would not have prescribed
the controlled substances. Second, statistical information regarding the
frequency with which psychiatrists prescribe controlled substances to family
members is not required to establish good cause in every case. (Wolfsohn,
supra, 33 Cal.App.5th at p. 1036; Soorani, supra, 41 Cal.App.5th at p. 511.)
She also contends Dr. Firestone’s declaration is more persuasive than Dr.
Davies’s, but this strategy misapplies the standard of review. In reviewing
11
a trial court’s finding for substantial evidence, we do not reweigh the
evidence or resolve evidentiary conflicts. (In re Caden C. (2021) 11 Cal.5th
614, 640.)
Finally, in her opening brief, Dr. Dore relies on Wolfsohn, supra,
33 Cal.App.5th 1024. There, the Board received a report from a law
enforcement officer that a physician specializing in pain management may
have overprescribed controlled substances to his patients. (Id. at pp. 1027–
1028.) It subpoenaed the medical records of five of his patients, then
petitioned to compel compliance with the subpoena. The Board offered
a supporting declaration from a medical consultant who, as relevant here,
opined the physician prescribed the controlled substances “ ‘in a manner that
appeared to be inconsistent with the standard of care for prescribing those
drugs.’ ” (Id. at pp. 1028–1030, italics added.) The consultant explained it
was necessary to review the medical records to confirm the physician
examined the patients before prescribing the controlled substances, and to
determine whether the physician periodically evaluated and documented the
efficacy and effects of the medication regimen. (Id. at p. 1030.) In opposition,
a doctor specializing in pain management criticized the medical consultant’s
“understanding of the standard of care for physicians specializing in pain
management” and opined — among other things — the prescriptions were
“ ‘not outside of acceptable prescribing by a seasoned Board certified pain
management specialist.’ ” (Id. at p. 1031.) The desire to review the patients’
medical records, the doctor reasoned, was “ ‘speculative curiosity, not a good
cause belief to pry into confidential patient files.’ ” (Ibid.)
Wolfsohn held the Board failed to establish good cause for the
investigative subpoena because the medical consultant did not opine the
prescriptions breached the standard of care, the Board did not contradict the
12
opposing party’s expert declaration that the physician’s conduct conformed to
the standard of care, and the Board did not offer evidence as to the number
of patients the physician treated, or how often similarly situated pain
management specialists might prescribe the controlled substances.
(Wolfsohn, supra, 33 Cal.App.5th at pp. 1027, 1030, 1037.) For these reasons,
Wolfsohn held the Board failed to make a sufficient evidentiary showing the
physician issued “prescriptions in violation of law or the particular applicable
standard of care.” (Id. at p. 1036.)
Wolfsohn is distinguishable for several reasons. First, Dr. Dore came
to the Board’s attention due to a complaint from a patient, not from an
uninvolved third party. (Wolfsohn, supra, 33 Cal.App.5th at p. 1036
[evidence “that a physician’s patient has been harmed . . . would also weigh
heavily in the state’s favor in seeking patient medical files”].) Second, the
Board offered evidence Dr. Dore’s conduct was outside the standard of care,
as well as evidence supporting an inference similarly situated psychiatrists
would be unlikely to prescribe controlled substances to a family member.
Third, Dr. Davies’s declaration contradicted Dr. Firestone’s. Additionally, the
absence of information regarding the number of patients Dr. Dore treated is
not fatal, as the issue here is not whether Dr. Dore prescribed excessive doses
of controlled substances, but whether it was improper for her to prescribe the
medication in the first place. Finally, the subpoena is not a fishing
expedition, as in Wolfsohn, because the Board made an evidentiary showing
that the only way to determine whether Dr. Dore was practicing outside the
standard of care was to obtain the family member’s medical records. (See
Soorani, supra, 41 Cal.App.5th at p. 512, fn. 5.)
In sum, we conclude substantial evidence supports the trial court’s
implied finding that the Board established good cause to order the disclosure
13
of the medical records. We have considered the parties’ and amici curiae’s
remaining assertions; none merit discussion. At oral argument, Dr. Dore
urged us to reverse based on the psychotherapist-patient privilege. We
decline to address the argument — which was rejected in Cross v. Superior
Court, supra, 11 Cal.App.5th 305 — as it was neither raised in the trial court
nor discussed in Dr. Dore’s briefing on appeal.
DISPOSITION
The order granting the Board’s petition to compel compliance with the
investigative subpoena is affirmed. The Board is entitled to costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(2).)
14
_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A16512
15
Filed 3/15/23
CERTIFIED FOR PUBLICATION
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
KIMBERLY KIRCHMEYER, as
Director, etc.,
A165128
Plaintiff and Respondent,
v. (San Francisco City & County
Super. Ct. No. CPF-22-517709)
HELIOS PSYCHIATRY INC. et al.,
Defendants and Appellants;
REJI VARGHESE, as Deputy
Director, etc.,
Real Party in Interest and
Respondent.
ORDER MODIFYING OPINION AND
CERTIFYING OPINION FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT*:
The nonpublished opinion, filed on February 14, 2023, is ordered
modified as follows:
1. The penultimate sentence of the first full paragraph on page 2 is
replaced with the following sentence:
Tucher, P. J., Fujisaki, J., and Rodríguez, J. participated in the
*
decision.
1
For example, between January 2019 and September 2020, Dr. Dore
prescribed two controlled substances — Adderall and Klonopin — to
another patient, a family member (family member).
2. Footnote 1 on page 2 is modified to read:
Other aspects of the Board’s investigation — including its
investigation into an allegation that Dr. Dore violated federal regulations
by obtaining ketamine prescriptions in her name and using the
prescriptions for “office stock” to dispense to patients — are not at issue.
In compliance with the trial court’s May 2022 sealing order, we omit
information that could be used to identify the family member.
3. The third sentence of the last full paragraph on page 2 is replaced
with the following sentence:
It also served her with investigative interrogatories requesting
information about the treatment she provided to the family member.
4. The penultimate sentence of the first full paragraph on page 5 is
replaced with the following sentence:
The family member provided a declaration explaining their reason
for seeking treatment from Dr. Dore, identifying the medications she
prescribed, and describing the treatment she provided.
These modifications effect no change in the judgment.
The opinion in this appeal, filed on February 14, 2023, was not certified
for publication in the Official Reports. For good cause appearing, pursuant to
California Rules of Court, rule 8.1105(b) and (c), the opinion is certified for
publication. Accordingly, respondent’s request for publication is GRANTED.
Dated: ______________ _________________________________, P. J.
2
Superior Court of San Francisco County, Hon. Suzanne Ramos Bolanos
Rothschild Wishek & Sands, Michael Bradley Wishek and William David
Corrick; Long & Levit, William David Corrick, for Appellants.
Law Offices of Daniel H. Willick and Daniel H. Willick for California Medical
Association, Psychiatric Physicians Alliance of California, and Northern
California Psychiatric Society, as Amici Curiae on behalf of Appellants.
Rob Bonta, Attorney General, Gloria L. Castro, Assistant Attorney General,
Mary Cain-Simon and Carolyne Evans, Deputy Attorneys General for Real
Party in Interest and Respondent.
3