Cross v. Superior Court

The psychotherapist-patient privilege may not be raised in opposition to producing patient records in a Medical Board investigation, but to protect the patient’s privacy rights the subpoena must be carefully tailored to request only records that are relevant and material to a compelling state interest, such as avoiding over-prescription of controlled substances.

B&P 2225(a) provides that Medical Board investigations are not governed by other law granting a privilege to communications between a physician or podiatrist and patient.  This decision interprets that statute as creating an exception to the psychotherapist-patient privilege created by Evid. Code 1400, which was enacted before section 2225.  However, the psychotherapist may still assert his patients’ constitutional right to privacy of their medical records.  To overcome that constitutional protection, the Medical Board must show a compelling interest in its investigation and that the information it seeks is relevant and material.  Here, the Medical Board had a compelling interest in investigating a charge that the psychiatrist was overprescribing controlled substances, but its subpoena was too broad to meet the relevant and material standard.  In particular, the subpoena’s “including but not limited to” language had to be stricken.

California Court of Appeal (Baker, J.; Kumar, J., sitting by assignment, concurring); May 1, 2017; 2017 WL 1549906

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