Subpoena for Pharmacy Records of Prescriber's Use of a Controlled Drug

ISSUE OF THE CASE

A retired physician filed suit against his former accounting firm, alleging that its poor advice led to him having problems with the IRS. When the firm’s financial advisors responded that the actual cause of the decline of his practice was his abuse of medications, can it get access to the prescription records of the physician in his role of patient?

FACTS OF THE CASE

A physician was in active practice until 2008 when he decided to retire. He earlier had selected an accounting firm to provide “general accounting, management advisory, and tax service to him personally and to his office.” In 2009, the IRS launched an audit that lasted a year and a half. The physician received advice from the firm during the audit. He alleged, however, that the firm provided him with incompetent advice, engaged in actions that violated applicable professional standards, and provided services in a fashion that breached express and implied duties to both him as an individual and to his professional practice. He claimed that these shortcomings resulted in substantial financial loss for him; emotional distress on his part as well as other noneconomic injuries; and to him facing an IRS threat of criminal prosecution for income tax evasion.

The physician filed suit in US District Court against the firm, listing several claims: professional malpractice, breach of contract, fraud or misrepresentation, and breach of fiduciary duty. His suit sought both compensatory and punitive damages.

The accounting firm responded that its activities played no role in the physician’s decision to cease practicing medicine. Their claim was that the physician’s departure from practice was attributable to a variety of reasons. Importantly, for this discussion, the firm argued that the cause of the departure from serving patients and closing down the practice was that the physician had developed “a problem” with hydrocodone cough syrup that led to the loss of patients. Further, that development had alienated significant members of the staff at the practice, including both his partner and the office manager. These details came to light when the attorneys for the accounting firm were conducting depositions of the practice’s staff. Those being deposed went so far as to specify that the physician had obtained the hydrocodone cough syrup from a specific pharmacy.

The attorneys for the accounting firm served the pharmacy with a subpoena duces tecum, a court order requiring the production of documents or other tangible evidence. In this matter, the subpoena requested production of “any and all documents and records” regarding the physician, including, but not limited to, his entire employment file and records of prescriptions that he has filled at your facility.” His employment file was mentioned because subsequent to his retirement, he went to work for said pharmacy. The physician asked the court to quash (ie, to reject or render void) the subpoena because it sought the release of privileged or protected information. He claimed that the records related to prescriptions dispensed to him as a patient constituted private health information and that, as such, they could only be released if they were proved relevant to the case—and, even then, only if he had placed his health condition at issue in the case. The accounting firm countered with the argument that the physician had placed his physical and mental condition at issue by claiming that their firm was to blame for the closure of the medical practice.

THE COURT’S RULING

The court ruled that the defendant accounting firm was entitled to have access to the records of the physician’s medications. However, the court limited the access to records related to “prescription medications that include hydrocodone and/or any other narcotic medication for the years 2006-2008.” It ordered that the prescription records produced by the pharmacy “shall be considered confidential under an Agreed Protective Order…”

THE COURT’S REASONING

The defendant is entitled to have access to the physician’s medications-use history subject to potential abuse so long as that information is relevant to a claim or a defense argument in a case. A key element of the case was identification of the reason for the physician’s retirement and, in the view of the court, that is “fair game” for being addressed as part of the pre-trial process of discovery.

The court addressed the general rule that only the recipient of the subpoena duces tecum is in a position to seek to void that demand for information. In this instance, that would be the pharmacy to which the subpoena was directed. The challenge here was mounted by the plaintiff physician whose records were being sought. The court noted that there is an exception to the general rule when the person raising the objection has a personal right or privilege in the information being sought. The court referred to a ruling by a state appellate court acknowledging that health care records are highly confidential and entitled to special protection from “unfettered release.” Accordingly, the court here limited the accounting firm’s access to only those records pertaining to the condition that had been placed at issue.

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