Patients have a “diminished expectation of privacy” about their information in the PMP databases
That’s when Lewis turned to the courts, arguing the board had gone fishing for a case against him. In a twist, he asserted that regulators violated not his rights, but those of his patients under the state constitution’s privacy provisions. Lewis’ lawyer, Ben Fenton of Los Angeles, said regulators should get a court order or a signed patient release to look through the databases, just as they must do for a patient’s medical records. After losing at lower court levels, Fenton took the case to the state Supreme Court, which has agreed to hear it this year but not scheduled a date.
Though access by law enforcement officials to prescription databases has been challenged in various states – successfully in Oregon — the California case is believed to be among the first in the country to challenge unrestricted access by medical boards to state prescription drug databases…
The California database, maintained by the state Department of Justice, contains details including physicians’ and patients’ names and is based on weekly reports from pharmacies about prescriptions they have filled for certain high-risk drugs including powerful painkillers. By law, the justice department must provide reports to certain civil and criminal investigators and no court order or warrant is required for access, including for medical board investigators.
Like California, nearly every state now has prescription drug monitoring programs, often known by their acronym PDMP. PDMPs were set up to detect “doctor shopping” by addicts and dealers who seek pain prescriptions from multiple physicians – the purpose that often gets the most attention. But those databases also give licensing boards and law enforcement a way to spot and rein in reckless prescribing by doctors…
As it stands, states tend to put up few barriers to medical licensing boards seeking information as part of their duties. Experts at the PDMP Center for Excellence at Brandeis University outside Boston knew of only one state — Iowa – that requires medical boards get a court order before looking at the databases…
Lewis’ lawyer, Fenton, noted that the original complaint against his client had nothing to do with drug prescriptions, yet the board still ran Lewis through the voluminous database, which contains patient names and medications. According to testimony cited in court papers, an investigator with the medical board said officials routinely check the names of physicians under investigation in the database…
The AMA weighed in in support of Lewis. While the organization supports keeping drug prescription databases…
Unlike medical records, prescriptions of controlled substances “are subject to regular scrutiny by law enforcement and regulatory agencies,” the court wrote when turning down Lewis’ appeal. As a result, the court said, patients have a “diminished expectation of privacy” about their information in the databases…
Under comments:
Anne, on April 28, 2015 at 4:22 pm said:
PDMP…..so open law enforcement don’t need warrants always…..many times they can just “say ”they are doing an investigation. Who can’t see this data? In Alabama, you the patient are expressly prohibited from reviewing YOUR OWN RECORDS even if you contest the accuracy. I have had eleven errors that I know of in my records since early 2011!
painkills2, on April 29, 2015 at 12:11 am said:
I was recently told by a nurse at the hospital that once information is entered into your electronic health record, it cannot be removed — doesn’t matter if it’s true or not.
So if a doctor believes a patient isn’t using her prescriptions (maybe because of an inaccurate drug test result) and is illegally selling them, that doctor will input that information into both your EHR and a PDMP. The doctor doesn’t need to be right — a drug test result is all that’s needed to label you for life.
I assume information cannot be removed from the PDMPs either. Once your records say you are a drug seeker, addict, or criminal, those labels will follow you forever. Every doctor you see will view that information, and my guess is that there will be many doctors who will refuse to treat any patient with those labels, especially pain patients.
Nothing can protect patients from the drug war, including HIPAA.
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