Sheriff Sues Board for Searching His Rx Records Without a Warrant

Issue of the Case:

A Washington appellate court wasasked whether a warrantless search ofthe sheriff's prescription records constitutedan invasion of privacy whenthey were later released to the countyprosecutor.

Facts of the Case:

The plaintiff, a county sheriff, beganusing prescription pain medicine afterhe received a jaw injury while on duty.A pharmacist noticed that the sheriffwas "sweating, had glassy eyes, and wasshort of breath" when filling his Percocetprescription. After checking aroundwith her colleagues, the pharmacistfound that the sheriff was receivingnarcotic prescriptions from 4 to 6 differentpharmacies at the same time.

The Washington State Board ofPharmacy initiated an investigation. Aboard inspector reviewed the prescriptionrecords of 39 area pharmacies. Shedid not obtain a search warrant. Theinspections showed that the sheriffhad received a total of 265 prescriptionsfrom 10 physicians for controlledsubstances that were filled by 8 pharmaciesover a 17-month period.

Board of Pharmacy officials disclosedthe results of their investigationto the county prosecutor and othergovernment representatives. Theboard members reported that the sheriffwas taking 25 dosage units a day of"mind-altering drugs," which wouldaffect anyone's ability to safely use acar or carry a weapon.

The prosecutor filed criminalcharges against the sheriff 7 daysbefore the general election. The sherifflost the election, but the criminal casewas subsequently dismissed becausethe court ruled that the board had violatedthe sheriff's right to privacy byexamining his records without a warrant.The county did not appeal thedismissal. The sheriff subsequentlyfiled a civil suit against the State ofWashington, alleging negligent disclosureof health care information.

The Court's Ruling:

A jury found that the sheriff had notcommitted a crime and that the boardhad negligently disclosed his healthcare information. The plaintiff wasawarded $3.25 million in damages.The appellate court reversed the trialcourt award. It held that the trial courterred in the civil lawsuit when it concludedthat the Board of Pharmacyneeded a warrant to search prescriptionrecords.

The Court's Reasoning:

The court noted that the state PharmacyPractice Act requires all pharmaciesto maintain prescription recordsfor inspection by the Board of Pharmacyor any officer of the law. Thecourt concluded that "the legislatureclearly intended that pharmacyrecords be available for enforcement ofall prescription drug laws?not justthose laws that regulate pharmacistsand doctors, but those that criminalizecertain behavior by patients." Furthermore,in the eyes of the court, theplain language of the pharmacystatute permitted these inspections tobe conducted without a warrant.

The next step in the court's inquirywas to determine whether the pharmacystatute, as interpreted, violatedthe privacy protections of the federaland state constitutions. It concludedthat patients who purchase prescriptionnarcotics from pharmacists havea limited expectation of privacy in theinformation compiled by pharmacistsregarding their prescriptions.

The court stated: "When a patientbrings a prescription to a pharmacist,the patient has a right to expect thathis or her use of a particular drug willnot be disclosed arbitrarily or randomly.But a reasonable patient buying narcoticprescription drugs knows orshould know that the State, which outlawsthe distribution and use of suchdrugs without a prescription, will keepcareful watch over the flow of suchdrugs from pharmacies to patients."

The court reviewed a series of casesfrom other jurisdictions. It noted that"no state that has addressed the issuehas invalidated pharmacy statutes thatgrant access to law enforcement,either under the Constitution's FourthAmendment or under their own constitutionalprivacy provisions."

Finally, the court determined thatthe disclosure of the board investigationto the prosecutor was not a violationof the sheriff's right of privacy.Such communications are permissiblebecause it would be unreasonable toprevent dialogue between the boardand the prosecuting attorney whomust make a decision as to whether tocriminally charge the person underinvestigation. A person's right of privacyis not absolute and will be balancedagainst the needs of the state.

Larry M. Simonsmeier isEmeritus Professor ofPharmacy Law atWashington State UniversityCollege of Pharmacy.