Pharmacy Law: No Privacy of Patient Information in PDMP

Is a state's prescription drug monitoring program database off-limits for law enforcement if an individual is suspected of "doctor shopping"?

Issue of the Case

A police detective received reliable information that an individual likely was “doctor shopping” to obtain controlled substances and subsequently requested a report of information from the state’s prescription drug monitoring program (PDMP) database. Following arrest, the individual filed a motion to suppress or prevent use of the PDMP information, arguing that the search of the database was unlawful. Is information in a state’s PDMP database private?

Facts of the Case

Reports that the patient might be “doctor shopping” came to the detective from both a physician’s office staff members and from a fellow detective. To further his investigation, the detective requested a report from the agency in the Southern state that maintains the PDMP database. The information in the report reflected that the individual had received overlapping prescriptions for various controlled medications from various physicians. When contacted, those prescribers indicated that they were unaware of the parallel prescriptions issued by their colleagues. Further, had they known they would not have issued their requests for dispensing the medications.

As a result of the investigation, the woman was arrested and charged with a number of counts of obtaining controlled substances by deception. An indictment on the criminal charges was issued, and she filed a motion to suppress the PDMP information because it was the fruit of an unlawful search. That motion was denied by the trial court judge. The woman entered a conditional guilty plea and filed an appeal of the trial court judge’s decision, alleging that his ruling was in error and should be overturned by the state court of appeals.

She argued that she had a reasonable expectation of privacy in the database information and that a search of those records without a warrant was impermissible. She also argued that the detective did not have sufficient justification for conducting the search. The government argued that a review of PDMP database information is not a “search.” Alternatively, the government argued that even if it were considered a search she had no reasonable expectation of privacy and the detective’s review was consistent with state statutes.

The Court's Ruling

The court of appeals denied the appeal, ruling that the search of the PDMP database information was lawful and, as a result, the information collected from there could be used.

The Court's Reasoning

The point of departure for the appellate court was that “all searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest on a valid warrant.” This led to whether the person had any expectation of privacy and whether the detective’s action constituted a “search.”

The court of appeals reviewed a case from the supreme court of another Southern state where it was ruled that prescription records were protected from warrantless search and seizure as part of a criminal investigation. However, the supreme court of the state where this case arose had already addressed the issue in an earlier decision, concluding that an examination of information in the PDMP database by those authorized by state statute to do so is not a “search” as that term is used in the Constitution. That ruling was based on the conclusion that “Citizens have no reasonable expectation of privacy in this limited examination of and access to their prescription records.”

The state supreme court had said that “It is well known by citizens that any prescription they receive and fill will be conveyed to several third parties, including their physician, their pharmacy, and their health insurance company.” Continuing on, the court noted that “Pharmacy records have long been subject not only to use and inspection by pharmacies, physicians and health insurance companies but also to inspection by law enforcement and state regulatory agencies.”

Finally, the state supreme court had also balanced the “competing interests of law enforcement and a citizen’s right to be free from unwarranted governmental intrusion.” The conclusion was that the disclosure of data to “authorized law enforcement personnel and other state actors…by third parties who obtained the information in the ordinary course of business does not infringe upon” the search and seizure protections of the Fourth Amendment.

Further, the woman argued that the detective should have been required to have “probable cause” to believe a crime was being committed in order to gain access to the information as authorized by the statute. This court disagreed, ruling that a “reasonable suspicion” is sufficient to make this a bona fide investigation as required by the statute.

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.