Linda K. Whitney, Executive Director of the Medical Board of California (the Board), filed a petition to compel Walton Montegut, M.D., to comply with investigational subpoenas (the subpoenas) issued in connection with an investigation of a complaint that Dr. Montegut "may be abusing drugs, prescribing to himself and over prescribing to patients." Over various objections, the trial court granted the petition.
Dr. Montegut contends the trial court erred in granting the petition because (1) it was not timely filed within 60 days of his noncompliance with the subpoenas; (2) the Los Angeles County Superior Court did not have jurisdiction to hear the petition under Government Code section 11186;
The petition was filed in Los Angeles County Superior Court on June 27, 2011, seeking medical records of 10 patients treated by Dr. Montegut, pursuant to the Board's disciplinary and investigative authority over licensed physicians. The petition was supported by a declaration of Dr. Rick Chavez, a physician with board certification in addiction medicine and pain medicine, who reviewed prescriptions issued by Dr. Montegut that revealed possible drug use and overprescribing to patients. Dr. Chavez opined that he needs to review the patients' medical records to determine why the medications were prescribed. The petition alleged the Board's investigation was being conducted in Los Angeles County and the designated place of compliance with the subpoenas was in Los Angeles County (although the subpoena attached to the petition required production of patient records in Tustin, which is in Orange County). Counsel for Dr. Montegut notified the Board's investigator, Erika George, on January 26, 2011, of objections to the subpoenas and the doctor's refusal to comply.
The Board filed a memorandum of points and authorities concurrently with the petition. The memorandum detailed the nature of the investigation, the authority of the Board to investigate, and the necessity to enforce the subpoenas.
Dr. Montegut filed objections to the petition on substantive, procedural, and jurisdictional grounds, as discussed below. The trial court issued an order
Dr. Montegut's first contention is that the petition to compel compliance with the subpoenas is subject to the same 60-day time limit applicable to a petition for writ of mandate. Because he refused to comply by January 27, 2011,
Dr. Montegut cites no authority for the proposition that a petition to compel compliance with an investigational subpoena is the equivalent of a petition for writ of mandate which must be filed within 60 days of the party's failure to comply, nor does he engage in any analysis to support that conclusion. "We need not address arguments for which a party provides no supporting authority. (People v. Williams (1997) 16 Cal.4th 153, 226, fn. 6 [66 Cal.Rptr.2d 123, 940 P.2d 710].)" (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042 [113 Cal.Rptr.2d 11].)
Dr. Montegut next argues the Los Angeles County Superior Court did not have jurisdiction to hear the petition. He contends jurisdiction in this case is in the Orange County Superior Court under the provisions of section 11186, because the subpoenas called for compliance in Orange County and there is no evidence that any investigation of Dr. Montegut was taking place in Los Angeles County. This contention involves issues of statutory interpretation and application of the substantial evidence rule to the trial court's findings on jurisdiction.
"`When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [197 Cal.Rptr. 925].) The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials. (Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465 [225 Cal.Rptr. 610].)" (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143 [131 Cal.Rptr.2d 771].)
The statute assigning jurisdiction to hear petitions to compel compliance with investigational subpoenas is section 11186, which provides as follows: "The superior court in the county in which any hearing is held or any investigation is conducted under the direction of the head of a department or the county in which testimony is designated to be given or documents or other items are designated to be produced, has jurisdiction to compel the attendance of witnesses, the giving of testimony, the answering without objection of interrogatories, and the production, inspection, and copying of papers, books, accounts, documents, and other items described in subdivision (e) of Section 11181 as required by any subpoena issued by the department head."
The trial court found that the Los Angeles County Superior Court has jurisdiction over the petition because (1) the hearing on Dr. Montegut's interim suspension was held in Los Angeles, (2) if an accusation is filed, it will be in Los Angeles, and (3) investigation was conducted in both Orange and Los Angeles Counties. Under the appropriate standard of review, the issue is not close, as the court's jurisdictional findings are amply supported by substantial evidence.
First, the deputy attorney general acting as counsel for the Board declared that a hearing had been held in October 2010 in the Los Angeles Office of Administrative Hearings regarding interim suspension of Dr. Montegut's medical license. This sworn statement is uncontroverted. Thus, in direct relation to the investigation of Dr. Montegut, Los Angeles was "the county in which any hearing is held." (§ 11186, italics added.) The broad jurisdictional language used by the Legislature, including the phrase "any hearing," does not support the interpretation urged by Dr. Montegut, that "any hearing" means a hearing that is currently pending. Had the Legislature intended the meaning of section 11186 suggested by Dr. Montegut, it would have provided for jurisdiction in the county "in which any hearing is pending." The Legislature did not use those words, and we decline to add them to section 11186 and thereby limit the broad jurisdictional language chosen by the Legislature. The hearing on interim suspension, alone, is an adequate basis for jurisdiction in the Los Angeles County Superior Court.
The trial court also ruled that jurisdiction was proper under section 11186 because if an accusation is filed, any hearing will also be heard in Los Angeles County at the Office of Administrative Hearings. We leave for another day the issue of whether a future hearing satisfies the jurisdictional requirement of the statute. It is sufficient for purposes of this case to hold, as we have above, that the prior hearing on interim suspension of Dr. Montegut vests the Los Angeles County Superior Court with jurisdiction to hear the petition to compel compliance with the subpoenas.
Second, the record contains substantial evidence to support the trial court's finding that "the investigation has been conducted in both Orange County and Los Angeles County." Because the court did not specify the evidence upon which it relied, we examine the entire record and draw all inferences in favor of the court's express or implied findings under the substantial evidence rule. We begin by noting that the petition, which is deemed verified under the terms of Code of Civil Procedure section 446 (see Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 Cal.App.3d 1212, 1222-1223 [279 Cal.Rptr. 421]), specifically alleged that "the Board's investigation is being conducted in Los Angeles County."
Additional definitive proof that "any investigation" took place in Los Angeles County is found in the involvement of Dr. Chavez. It is undisputed that Dr. Chavez was utilized by the Board to investigate Dr. Montegut's prescribing practices, and after his investigation of the prescriptions, the irregularities he observed caused him to conclude it was necessary to review the patients' medical records that are the subject of the instant petition. Dr. Chavez has medical privileges at two Los Angeles County hospitals, and most importantly, signed his declaration in Redondo Beach, which is located in Los Angeles County. The trial court could reasonably infer from the record that counsel for the Board directed and participated in the investigation, Dr. Chavez was an integral part of that investigation, and their activity took place in Los Angeles County. The court correctly found it had jurisdiction.
Citing Business and Professions Code section 2225.5, subdivision (a)(1), Dr. Montegut contends the subpoena was illegal because it was not accompanied by written patient releases. He further argues the letters notifying the 10
Business and Professions Code section 2225.5, subdivision (a)(1),
The second requirement of Code of Civil Procedure section 1985.3 is notice to the patient that if he or she objects to disclosure of his or her medical records, the patient must file papers with the court or serve a written objection prior to the date specified for production. Here, each patient received a document entitled "NOTICE TO MEDICAL CONSUMERS," explaining the Board's duties and investigative powers and seeking the patient's signature on an authorization to release of his or her medical records. The patients were advised of their right not to sign the consent form, but that the Board will take the necessary steps to subpoena the records. Patients were advised, "YOU HAVE THE RIGHT TO OBJECT TO PRODUTION OF YOUR RECORDS TO THE MEDICAL BOARD IN RESPONSE TO ITS SUBPOENA." Investigator George's letter to each patient included the same admonition. The second notice requirement of Code of Civil Procedure section 1985.3 was satisfied.
The third notice requirement is that if the parties do not agree in writing to cancel or limit the subpoena, the patient should consult an attorney about protecting the patient's privacy rights. The "NOTICE TO MEDICAL CONSUMERS" provided to each patient in this case included the following admonition: "IF YOU WISH TO MAKE SUCH AN OBJECTION, YOU MAY WANT TO CONSULT AN ATTORNEY TO DISCUSS YOUR RIGHTS." Investigator George's letter to each patient contained the same admonition. The third statutory notice requirement was satisfied.
Dr. Montegut contends there is an additional notice requirement under Code of Civil Procedure section 1985.3 that the Board did not satisfy — notice advising the patient in which court, or before which tribunal, an objection could be made. Code of Civil Procedure section 1985.3 contains no such requirement, and we decline to impose one. Sehlmeyer, supra, 17 Cal.App.4th 1072, cited by Dr. Montegut, does not hold that Code of Civil Procedure section 1985.3 requires a patient be given notice of where to object. The case stands for the unremarkable proposition that a patient must be given advance notice of a subpoena of medical records under Code of Civil Procedure section 1985.3. (Sehlmeyer, supra, at pp. 1079-1082.) The Board provided the precise notice required by the statute in this case.
Dr. Montegut's final contention is that the subpoena did not set forth legally adequate cause for its enforcement. Relying on Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148-1149 [212 Cal.Rptr. 811] (Wood), Dr. Montegut argues the declaration of Dr. Chavez fails to support a finding overriding a patient's privacy rights because (1) Dr. Chavez is not a member of the same medical specialty as Dr. Montegut and (2) Dr. Chavez's conclusion that "[i]t is not possible to ascertain with assurance why these medications were prescribed" is legally insufficient for enforcement of an investigational subpoena.
Dr. Chavez declared he is board certified in addiction medicine, pain medicine, and family medicine. He earned his undergraduate degree in psychology at Stanford University and his medical degree at the UCLA school of medicine, where he has been a clinical assistant professor since 1992. He was on the faculty at the USC school of medicine from 1987 to 1992. His current clinical practice is in the treatment of chronic pain and addiction medicine. He has clinical and admission privileges at Torrance Memorial Medical Center and Little Company of Mary hospital in Torrance.
In July 2010, Dr. Chavez was asked to review allegations of drug use and overprescribing by Dr. Montegut. One of the documents he reviewed was a CURES report,
The trial court's determination that a physician is qualified to render testimony as "an expert witness must be upheld absent an abuse of discretion,
Dr. Montegut argues that Dr. Chavez's declaration is insufficient as a matter of law to provide an adequate basis for an investigational subpoena based on his conclusion that "[i]t is not possible to ascertain with assurance why these medications were prescribed." Dr. Montegut argues Wood, supra, 166 Cal.App.3d 1138 "is directly on point in this case." The Wood court found insufficient evidence to support an order compelling a doctor to comply with investigational subpoenas where the Board's expert expressed the opinion examination of patient records was necessary "`because of the definite possibility of excessive prescribing of controlled drug substances ....'" (Id. at p. 1142.)
Wood involved administrative subpoenas directed to two physicians for the complete medical records of patients who had been prescribed schedule II controlled substances. When the physicians refused to comply with the subpoenas, the Board obtained a trial court order enforcing compliance. The Court of Appeal granted a peremptory writ of mandate overturning the order to comply. (Wood, supra, 166 Cal.App.3d at pp. 1140-1141.) The Wood court based its conclusion that the subpoenas should not have been enforced on the following factors: (1) a patient's right to privacy prohibited inspection of medical records in the absence of a compelling state interest (id. at p. 1147); (2) the right to privacy could only be protected if the Board takes reasonable
The second issue identified in Wood — the absence of notice to the patients — is not a factor in this case. It is uncontested that the patients were given the opportunity to consent to disclosure of their records, and when consent was not given, the patients received notice of the subpoena and their right to consult with counsel and object to the subpoena. As noted by the trial
The third requirement of Wood — the Board's obligation to present competent evidence which supports the trial court's finding of good cause for enforcement of the subpoena — is satisfied by Dr. Chavez's declaration. We do not agree with Dr. Montegut's argument that Dr. Chavez's declaration is "insufficient because it does not set forth information sufficient for this Court independently to assess the likelihood of improper prescribing." Dr. Chavez examined the Department of Justice's official CURES report and pointed out specific examples of prescribing irregularities. He identified large quantities of one controlled substance prescribed to one patient. He described patients receiving the same prescription on the same day and obtaining the same quantity at two different pharmacies. Multiple family members were receiving the same medication and refilling before the due date. Dr. Chavez's declaration presents competent and specific evidence of identifiable instances "of significant irregularities in [Dr. Montegut's] prescribing practices" that warranted examination of the patients' medical records. Omitted from Dr. Montegut's description of Dr. Chavez's declaration is Dr. Chavez's further statements of good cause: "In my professional opinion, there is good reason for necessity to review the medical records of the patients in question. In order to accurately determine and define these problems, certified medical records are necessary." We further observe that here, unlike the situation in Wood, supra, 166 Cal.App.3d at pages 1142-1143,
The order granting the petition is affirmed. Linda K. Whitney, as Executive Director of the Medical Board of California, is awarded costs on appeal.
Turner, P. J., concurred.
I dissent because I believe that the Los Angeles County Superior Court did not have jurisdiction to order compliance with the investigative subpoenas duces tecum. Under Government Code section 11186,
There was no jurisdiction in the Los Angeles County Superior Court under section 11186's hearing basis for jurisdiction because there was no hearing then taking place in Los Angeles County. The first basis for jurisdiction has two parts that require interpretation: (1) "any hearing" and (2) "is held." The term "any hearing" refers to the type of hearing, and not to the timing of a hearing. The term "is held" refers to the timing of "any hearing." The term "is held" is in the present tense. Thus, "is held" means a present hearing, and
There was no jurisdiction in the Los Angeles County Superior Court under section 11186's investigation basis for jurisdiction because no investigation was conducted in Los Angeles County. The conduct at issue in this case concerns Dr. Montegut's prescribing practices, which took place in Orange County. Section 11186 establishes jurisdiction in the county in which "any investigation is conducted." That an investigator — Deputy Attorney General Cindy Lopez — physically was in Los Angeles County when she investigated matters that occurred in Orange County does not mean that the investigation was conducted in Los Angeles County for purposes of establishing superior court jurisdiction under section 11186.
"(b) Notwithstanding any other provision of law, as of January 1, 2006, each complaint that is referred to a district office of the board for investigation shall be simultaneously and jointly assigned to an investigator and to the deputy attorney general in the Health Quality Enforcement Section responsible for prosecuting the case if the investigation results in the filing of an accusation. The joint assignment of the investigator and the deputy attorney general shall exist for the duration of the disciplinary matter. During the assignment, the investigator so assigned shall, under the direction but not the supervision of the deputy attorney general, be responsible for obtaining the evidence required to permit the Attorney General to advise the board on legal matters such as whether the board should file a formal accusation, dismiss the complaint for a lack of evidence required to meet the applicable burden of proof, or take other appropriate legal action."
