Dr. Alwin Lewis was investigated
by the Medical Board of California because of an odd diet he had apparently advised
patients to undertake. (The “five bite”
diet… don’t eat breakfast, then eat five bites of food for the rest of the
day. I would have demanded an
investigation, too.) During the course
of the investigation, the Medical Board uncovered inappropriate prescription patterns in California’s PDMP (the CURES database). The Medical Board found that he had kept poor
medical records and had over-prescribed medications to two patients. He was placed on three years’ probation.
And that’s when all heck broke
loose…
Dr. Lewis took the case to
court, arguing that the Board had gone too far in using information from the
PDMP against him. There’s a lot of
confusion here, even by California standards. Here are some key points to keep in mind:
First, the ACLU, civil rights
attorneys, the California Medical Association (CMA), and several other groups
are making a lot of noise about this case. All of them are trying to push
this issue far beyond the scope of the challenge that is actually being raised
by the Dr. Lewis. If Lewis prevails, the result will be a revision of the
Medical Board’s investigation/disciplinary process, not an invalidation of the
CURES statute.
Second, this case is not about
protecting patients’ privacy; it’s about protecting patients’ privacy when
doing so protects the doctor from a Board investigation. Lewis has made it clear that this is not
a facial challenge to the CURES statute; in fact, he concedes that in most
instances, such as in an administrative audit of a pharmacist (but not a
physician), pulling a patient’s prescription info is constitutional. His position is that when a CURES audit is
performed “for the express purpose of investigating physician practices,” the
auditor should not be able to access patient records without a subpoena,
warrant, or good cause.
Third, it’s also about
protecting the doctor’s right to privacy. Lewis is arguing that he has a direct,
personal, right to privacy in regards to his prescribing patterns, and that the
Board violated that right when they performed the CURES audit of his
prescribing history without an administrative subpoena. While that may sound like a
terrible argument, this is California, and so there is actually appellate case
law that supports him on that point. This
is actually a central theme in his petition. He argues that when a
pharmacy auditor looks at the medications dispensed to a patient by that
pharmacist, neither the rights of the pharmacist nor the rights of the patient
are violated; when a physician auditor views the medications prescribed to a
patient by that physician, both the rights of the patient and the rights
of the prescriber are violated. Makes complete sense, right?
The Board’s conduct – however
excessive – was aimed at protecting patients. The PDMP rules are aimed at
protecting patients. The only real danger to the patients’ interests came
from the guy that is now trying to pose as their protector in order to get out
of a disciplinary action.
This case, regardless of what
you might read elsewhere, shouldn't have a significant impact on PDMP use in California or any other state.
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