Date: 02-24-2019

Case Style:

Case Number: B285193

Judge: Bigelow, P.J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Benjamin J. Fenton, Dennis E. Lee and Alexandra De Rivera

Defendant's Attorney: No appearance

Description: Dr. Kamyar Cohanshohet appeals from the superior court’s
order to produce the medical records of five of his patients in
connection with an investigation into his prescription of
controlled substances to these patients. Because the state has
failed to demonstrate good cause to obtain these records, we
reverse the order.
PROCEDURAL BACKGROUND
The Investigation
In 2014, the Medical Board of California (the Board)
received an anonymous complaint alleging Dr. Cohanshohet
“prescribes huge quantities of narcotics to patients without giving
exams, tests, x-rays or even bloodwork. A loved one went to this
doctor and is now in rehab. Not once did this doctor examine
him, look at charts. He only went by a complaint of pain and
started prescribing narcotics at $400 a visit every two weeks.
He is in partnership with a pharmacy in his building.”
An investigator for the Board obtained a report from the
Controlled Substance Utilization Review and Evaluation System
(CURES), a database maintained by the California Department
of Justice. The CURES report for Dr. Cohanshohet shows the
Schedule II, III, and IV controlled substances prescribed by him
to patients between July 27, 2014 and July 27, 2015.
Dr. Shoaib Naqvi works as a medical consultant for the
Health Quality Investigation Unit of the Department of
Consumer Affairs. He identified five patients who were
prescribed dosages of opioids that were possibly in excess of the
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recommended amount. These five patients were notified of the
investigation and asked to sign releases for their medical records.
They refused. As a result, subpoenas duces tecum were served on
June 30, 2016, for the medical records of patients C.B., L.P.,
M.D., C.S., and R.V. for the time period between July 27, 2014
and July 27, 2015. The patients were informed when the
subpoenas were issued and advised of their right to object.
Dr. Cohanshohet refused to comply with the subpoena, asserting
his patients’ right to privacy.
The Petition
The Board subsequently filed a petition in the superior
court for an order compelling the production of the medical
records requested and for Dr. Cohanshohet’s testimony.
In support of its petition to compel compliance of the subpoenas,
the Board submitted the declarations of its investigator and
Dr. Naqvi. The investigator’s declaration sets forth the impetus
for the Board’s investigation: an anonymous complaint that
Dr. Cohanshohet overprescribed opioids to one patient without
conducting an examination or screening of him or her.
The anonymous complaint also alleged Dr. Cohanshohet was in
partnership with the pharmacy in his building. The investigator
further described the sequence of events leading to the petition,
including obtaining the CURES report for Dr. Naqvi’s review,
attempting to obtain consent from the patients, and
Dr. Cohanshohet’s refusal to comply with the subpoenas.
Dr. Naqvi documented his role and his conclusions from
reviewing Dr. Cohanshohet’s CURES report. He explained he is
tasked with reviewing questionable medical and surgical
practices of physicians licensed by the Board. Thus, he
maintains familiarity with the standard of medical practice in the
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state of California. Dr. Naqvi then in general terms explained
the different classes of controlled substances, their potential for
abuse, side effects, indicated use, and the standard of care for
prescribing these substances. He also provided details of 11
specific drugs prescribed by Dr. Cohanshohet, nine of which are
used to treat pain. The remaining two are used to treat anxiety,
insomnia, or muscle spasms and seizures.
Dr. Naqvi further explained that morphine is used as the
basis for a comparison of pain treatments to determine if the
patient’s opioid dosage is excessive. He stated that knowing the
morphine equivalent dosing (MED) is useful to evaluate different
types of opioids and to convert from one opioid to another. Opioid
dosing may be considered excessive if the MED level exceeds 100
mg per day. Dr. Naqvi noted an MED of greater than 100 mg per
day “puts the patient at added risk for overdose and death.” The
standard of care requires that the prescriber inform the patient of
potential risks and benefits of the drug. The patient must then
provide informed consent, including being notified that death is a
potential risk, when opioid dosing exceeds 100 mg MED per day.
Dr. Naqvi opined that good cause existed to believe that a
violation of the Medical Practice Act (Bus. & Prof. Code, § 2000,
et seq.) may have been committed by Dr. Cohanshohet. Dr.
Naqvi identified five patients who were prescribed controlled
substances in a manner that appeared to deviate from the
standard of care for prescribing these drugs.
Patient C.B. regularly received 90–120 (20mg) oxycodone
HCL tablets along with 30 (20 mg) oxymorphone HCL tablets and
30 (10 mg) Valium tablets each month from July 27, 2014 to
January 5, 2016. Based on this information, C.B. may have
taken three tablets of oxycodone, one tablet of oxymorphone HCL,
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and one tablet of Valium a day, totaling at least 150 mg MED per
day. Dr. Naqvi noted the sedative effects of opioids are further
aggravated by the use of Valium, resulting in a combination that
has a “very real possibility of sedation to the point of respiratory
arrest.” He concluded a review of C.B.’s medical record is
necessary to confirm that an appropriate examination was done
before prescribing this medication regimen, that regular
assessments of the efficacy and effects of the treatment regimen
were conducted and documented, and that the appropriate
monitoring measures were performed.
Likewise, patient M.D. regularly received 90 (30 mg)
oxycodone HCL tablets, 30 (4 mg) hydromorphone HCL tablets,
30 (10 mg) Valium tablets, and 60 (350 mg) carisoprodal tablets
(a muscle relaxant) each month from July 27, 2014 to July 27,
2015. According to Dr. Naqvi, this would appear to indicate three
tablets of oxycodone, one tablet of hydromorphone HCL, two
tablets of carispotrodal, and one tablet of Valium were taken each
day, resulting in at least 106 mg MED. This treatment regimen
also presented the very real possibility of sedation to the point of
respiratory arrest.
Patient L.P. regularly received 20–220 (10 mg) hydrocodone
bitartrate-acetaminophen with 30–45 (350 mg) carispotrodal each
month during the relevant time period, indicating the patient
took five tablets of hydrocodone bitartrate-acetaminophen and
one or two tablets of carisoprodal daily. This combination
appeared equivalent to a minimum of 75 mg MED.
Patient C.S. received prescriptions for 60–120 (10 mg)
OxyContin tablets, 120–240 (325 mg–10 mg) Norco tablets, and
30–90 (10 mg) benzodiazepine or related drug (such as Valium,
clonazepam, or temazepam, indicating 105–125 mg MED per day.
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Patient V.R. received 120–150 (15 mg–20 mg) oxycodone
HCL tablets with 20–60 benzodiazepine or related drugs (Valium
(10 mg), Ambien, or Zaleplon). This would indicate four to five
tablets of Oxycodone and one tablet of Valium along with a
sleeping pill per day, resulting in 60–75 mg MED.
The prescriptions for L.P., C.S., and V.R. carried risks
similar to those of patients C.B. and M.D. On this basis,
Dr. Naqvi concluded these five patients may have received
excessive amounts of opioids as compared to the recommended
dosage. Dr. Naqvi explained the records are necessary to
determine whether Dr. Cohanshohet performed an examination
and screening of those patients, received informed consent,
regularly assessed the efficacy and effects of the treatment
regimen, and monitored those patients.
The Opposition
Four of the five patients submitted declarations objecting to
the petition. Dr. Cohanshohet also opposed the petition,
asserting the Board lacked good cause to justify the intrusion into
his patients’ privacy. He asserted in a declaration that he
completed hundreds of hours of post-graduate training in pain
management and palliative care and that some of his patients
suffer from pain associated with acute injuries while others seek
active cancer treatment, palliative care, or end-of-life care.
In addition, he proffered the declaration of Dr. Jack Berger,
a physician certified in anesthesiology and who teaches pain
medicine and pain management at USC. Dr. Berger reviewed
Dr. Naqvi’s declaration. He agreed that physicians who prescribe
controlled substances to treat pain are required to complete a
medical history and physical examination, diagnose the problem,
inform the patient of any risks, and write a treatment plan which
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states the objectives, proposed treatments, and justifications for
the medications selected. He explained one of the primary
functions of a pain management specialist is to monitor and
guard against patient misuse and abuse of controlled substances
such as opioids.
However, Dr. Berger challenged Dr. Naqvi’s reliance on the
CDC prescribing guidelines which were merely recommendations
for primary care clinicians who are prescribing opioids for chronic
pain outside of active cancer treatment, palliative care, and endof-life
care. These guidelines were not in effect at the time the
patients in question were treated. He further contested
Dr. Naqvi’s conclusions as to each patient. Dr. Berger argued
that a dosage greater than 100 mg MED does not automatically
violate the standard of care, so long as the patient’s informed
consent was obtained. He found there was no reason to suspect
Dr. Cohanshohet failed to perform a proper examination, obtain
informed consent, or review the risks and benefits of higher
dosage opioid therapy with the patient. He also opined that
nonopioid alternatives would have presented similar risk of
serious side effects, like morbidity.
The Order
The Hon. Joseph Kalin presided over the hearing on the
Board’s petition. After argument, he stated he would take the
matter under submission and issue a ruling in “the next day or
two.” The Board served a notice of ruling a few weeks later
indicating its petition had been granted, but no order was
attached. Dr. Cohanshohet objected to the notice, arguing he
received no communication from the trial court about its ruling.
A different trial judge, the Hon. Michelle Williams Court,
informed the parties at a later status conference that she spoke
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with Judge Kalin, and he confirmed he granted the petition.
Dr. Cohanshohet timely appealed.
Although Dr. Cohanshohet questions whether an order was
ever issued, the parties are proceeding on the assumption a
ruling was made. Indeed, the record is sufficient to demonstrate
the superior court granted the petition and ordered Dr.
Cohanshohet to produce the requested records. Therefore,
we will treat the appeal as one from an appealable judgment.
(Dana Point Safe Harbor Collective v. Superior Court (2010)
51 Cal.4th 1, 11–13 [order compelling compliance with
administrative subpoena is appealable final judgment].)
DISCUSSION
Dr. Cohanshohet contends the state’s interest in his
patients’ medical records is insufficient to overcome their right to
privacy. He argues the Board lacks authority to issue subpoenas
for records of noncomplaining patients. In addition, the Board
has failed to pursue less intrusive means of investigation.
Finally, Dr. Cohanshohet argues the Board has failed to establish
good cause for its investigation because the records sought have
not been shown to be material or relevant to the investigation.
We are not persuaded the Board has demonstrated good
cause to require Dr. Cohanshohet to produce the five patients’
records. Accordingly, we reverse the trial court’s order. In doing
so, we need not address Dr. Cohanshohet’s other grounds for
reversal.
I. The Medical Board
The Board is a unit of the Department of Consumer
Affairs.1 (Bus. & Prof. Code, § 101, subd. (b).) It is tasked with

1 Although the director of Consumer Affairs is the plaintiff
and respondent in this matter, the Board is the real party in
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protecting the public against incompetent, impaired, or negligent
physicians. To accomplish this task, the Board is authorized to
investigate complaints from the public that a physician may be
guilty of unprofessional conduct. (Bus. & Prof. Code, § 2220,
subd. (a).) A physician may only prescribe controlled substances
when he holds a good faith belief that it is required for a patient’s
ailment, and only in a quantity and for a length of time that is
reasonably necessary. (Health & Saf. Code, § 11210.) A violation
of this provision constitutes unprofessional conduct (Bus. & Prof.
Code, § 2238), and subjects the violator to disciplinary action by
the Board (Bus. & Prof. Code, § 2234).
The Board’s investigators have the status of peace officers
(Bus. & Prof. Code, § 160), and possess a wide range of
investigative powers, such as the power to issue subpoenas for
the appearance of a witness or for the production of documents
(Gov. Code, § 11181, subds. (a) & (e)). The Board is authorized to
issue a subpoena in “any inquiry [or] investigation” (Gov. Code,
§ 11181, subd. (e)), and may do so for purely investigative
purposes; it is not necessary that a formal accusation be on file or
a formal adjudicative hearing be pending. (Arnett v. Dal Cielo
(1996) 14 Cal.4th 4, 8; Brovelli v. Superior Court (1961) 56 Cal.2d
524, 528.)
If a party refuses to comply with the administrative
subpoena, the Board may petition the superior court for an
order compelling compliance. (Gov. Code, §§ 11186–11187.) “If it
appears to the court that the subpoena was regularly
issued . . . by the head of the department, the court shall enter an
order that the person appear before the officer named in the

interest and we refer to it as the petitioner in this opinion rather
than the Department of Consumer Affairs.
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subpoena at the time and place fixed in the order and testify or
produce and permit the inspection and copying of the required
papers or other items described in subdivision (e) of Section
11181 as required . . . . Upon failure to obey the order, the person
shall be dealt with as for contempt of court.” (Gov. Code,
§ 11188.)
II. Standard of Review
The question of whether a subpoena meets the
constitutional standards for enforcement is a question of law to
be reviewed de novo. (Fett v. Medical Bd. of California (2016)
245 Cal.App.4th 211, 216 (Fett); Millan v. Restaurant Enterprises
Group, Inc. (1993) 14 Cal.App.4th 477, 485.) The superior court’s
factual findings regarding whether the Board established good
cause to intrude on the patients’ privacy rights are reviewed
under the substantial evidence standard. (Fett, supra, 245
Cal.App.4th at p. 216.)
III. Privacy Law in California
The state Constitution expressly grants Californians a
right of privacy, which extends to their medical records.
(Cal. Const., art. I, § 1.) As one court put it: “The state of a
person’s gastro-intestinal tract is as much entitled to privacy
from unauthorized public or bureaucratic snooping as is that
person’s bank account, the contents of his library or his
membership in the NAACP.” (Board of Medical Quality
Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679
(Gherardini).)
In Hill v. National Collegiate Athletic Assn. (1994)
7 Cal.4th 1, 35 (Hill), the California Supreme Court established a
framework for evaluating potential invasions of privacy.
The party asserting a privacy right must establish a legally
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protected privacy interest, an objectively reasonable expectation
of privacy in the given circumstances, and a threatened intrusion
that is serious. (Id. at pp. 35–37.) The party seeking information
may raise in response whatever legitimate and important
countervailing interests disclosure serves, while the party
seeking protection may identify feasible alternatives that serve
the same interests or protective measures that would diminish
the loss of privacy. A court must then balance these competing
considerations. (Id. at pp. 37–40.)
Additionally, good cause is required to be shown when the
state seeks to invade an individual’s privacy rights through an
administrative subpoena seeking his or her medical records.
(Gherardini, supra, 93 Cal.App.3d at p. 681; Wood v. Superior
Court (1985) 166 Cal.App.3d 1138, 1141–1143 (Wood).)2 Good
cause “ ‘calls for a factual exposition of a reasonable ground for
the sought order.’ ” (Gherardini, supra, at p. 681 quoting Waters
v. Superior Court (1962) 58 Cal.2d 885, 893.)
In Wood, the Board issued administrative subpoenas for
the medical records of 52 patients under the care of two different
physicians because it suspected the physicians were overprescribing
certain Schedule II drugs. In support of the
subpoenas, the Board submitted declarations from its
investigators that stated they had obtained copies of the two

2 The Supreme Court disapproved Wood and Gherardini to
the extent they hold that a compelling interest must always be
shown when an individual’s privacy rights are implicated, rather
than employ a balancing analysis under Hill. (Williams v.
Superior Court (2017) 3 Cal.5th 531, 556–557, fn. 8.) Because the
high court did not overrule Wood and Gherardini on any other
ground, we continue to rely on these cases for their good cause
analysis and for other propositions.
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doctors’ Schedule II drug prescriptions from various pharmacies.
One investigator reported a pharmacist had told her he believed
a particular patient was receiving an excessive dose of Demerol.
The Board’s medical consultant opined that there existed a
“ ‘definite possibility of excessive prescribing of controlled drug
substances’ ” and that the medical records should be obtained to
determine whether appropriate medical conditions existed to
warrant the prescriptions. (Wood, supra, 166 Cal.App.3d at
p. 1142.)
The court concluded the Board’s showing was insufficient to
warrant a demand for the complete medical records of the
patients, because it included records of medical issues unrelated
to the prescription of the controlled substances. (Wood, supra,
166 Cal.App.3d at p. 1149.) The court further stated, “Here we
have some facts about the prescriptions and the conclusions of
board personnel that they are suspicious but no mediating facts
revealing why the conclusion is warranted. The board has made
no evidentiary showing of how often physicians similarly-situated
to petitioners might prescribe these drugs. Alternatively, the
board has made no showing of the likelihood that the
prescriptions could have been properly issued, given what is
known of the circumstances of issuance. Absent this information
the trial court has no means by which to gauge the likelihood
that the records sought will reveal physician misconduct.
Without this there can be no independent judicial assessment of
good cause. The judicial function of assessing cause [citation]
cannot be abdicated by deferring to the bare conclusions of board
personnel.” (Id. at p. 1150, italics omitted.)
In Bearman v. Superior Court (2004) 117 Cal.App.4th 463
(Bearman), a doctor prescribed marijuana to his patient to treat
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migraines and attention deficit disorder. The doctor provided the
patient with a letter certifying the patient was under his medical
care and, having evaluated the medical risks and benefits of
cannabis use with the patient, the doctor approved his use of
cannabis for the relief of pain and nausea of migraines and
decreasing the frequency and intensity. The doctor further stated
the approval for medicinal cannabis would not require a repeat
visit until November or December 2001, effectively providing an
expiration date for the prescription. (Id. at p. 467.)
On April 10, 2001, park rangers discovered pipes and
marijuana among the patient’s possessions. The patient
presented the letter to the rangers. Believing the doctor was
possibly violating the law and medical ethics by exceeding his
scope of practice, one of the park rangers sent a copy of the letter
to the Board and asked for “ ‘appropriate actions.’ ” (Bearman,
supra, at pp. 467–468.) An investigation was initiated and the
Board issued an administrative subpoena for the patient’s
records after the patient refused to consent to the disclosure.
(Id. at p. 468.)
The trial court granted the Board’s petition to compel
compliance, but on appeal, the court found an absence of good
cause for disclosure of the patient’s records. The court concluded
the supporting declarations by the Board “are nothing more than
speculations, unsupported suspicions, and conclusory statements
drawn solely from [the doctor’s] letter to [his patient] and the
simple fact he recommended the use of marijuana.” (Bearman,
supra, at p. 471.) There were no facts suggesting the doctor was
negligent in his patient’s treatment, or that he prescribed
marijuana for improper reasons. (Ibid.)
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Similarly, in Gherardini, the investigator’s declaration was
insufficient because it “set[] forth no facts, no showing of
relevance or materiality of the medical records of these five
specified patients to the general charge of gross negligence and/or
incompetence of the licensee-doctor.” (Gherardini, supra, 93
Cal.App.3d at p. 681.)
By contrast, the court in Cross v. Superior Court (2017) 11
Cal.App.5th 305 (Cross) found good cause for an order compelling
compliance with subpoenas for the medical records of three
patients. There, the Board subpoenaed a psychiatrist’s patient
records to investigate an allegation that she improperly
prescribed controlled substances to three people. (Id. at p. 310.)
The psychiatrist refused to produce the records, invoking the
psychotherapist-patient privilege and the patients’ right to
privacy. (Ibid.)
The Department of Consumer Affairs filed a petition to
compel compliance with the subpoenas, which was granted.
On appeal, the court concluded the patients had a state
constitutional right to privacy that protects information
contained in their medical records. (Cross, supra, 11 Cal.App.5th
at p. 325.) Nevertheless, it found compelling the state’s interest
in investigating whether a doctor prescribed excessive or
improper amounts of controlled substances. (Id. at p. 327.)
The court found unpersuasive the psychiatrist’s contention
that there was no compelling interest in her particular case
because the facts and declarations relied upon by the Board did
not justify its investigation. (Cross, supra, 11 Cal.App.5th at
p. 328.) Specifically, the psychiatrist argued the Board’s expert
was not competent to demonstrate it had good cause to
investigate her prescribing practices because the expert was an
15
internist rather than a specialist in psychiatry. The court found
the trial court did not abuse its discretion to conclude the Board’s
expert was qualified to competently render an opinion on the
subject. (Id. at p. 327.)
Good cause was shown where the Board’s medical
consultant “opined on the nature and properties of the drugs
prescribed, their potential complications, and the precautions
that should be taken by a physician who prescribes the
medications.” (Cross, supra, 11 Cal.App.5th at p. 327.) In
particular, the Board’s expert believed the three patients in
question, all women who were likely postmenopausal, may be at
increased risk for coronary artery disease complications, which
could be exacerbated by use of the prescribed stimulants. (Id. at
p. 315.) The psychiatrist also prescribed high doses of Adderall, a
drug predominately used to treat attention deficit hyperactivity
disorder (ADHD) and narcolepsy. The psychiatrist prescribed
Adderall to one patient at a dosage level that was three times the
maximum recommended dosage for treatment of ADHD and in
excess of the recommended dosage for treatment of narcolepsy.
(Id. at pp. 312–313.)
Good cause was further shown by the investigator’s
declaration that one of the purported patients denied she was
ever treated by the psychiatrist. Additionally, the psychiatrist
had been disciplined by the Texas Medical Board for improperly
prescribing sleep medication to a close family member. (Cross,
supra, 11 Cal.App.5th at p. 328.)
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IV. The Board Has Failed to Demonstrate Good Cause
Dr. Cohanshohet challenges the basis for the subpoenas,
contending good cause is lacking to order compliance of the
subpoenas. We agree the Board has failed to demonstrate good
cause.
Applying the guidance provided by Wood, Bearman, and
Cross, we conclude Dr. Naqvi’s declaration is insufficient to show
good cause to compel compliance of the subpoenas at issue. Good
cause requires something more than the mere fact that a
specialist in pain medication prescribed doses slightly greater
than 100 MED to three patients and two others received
prescriptions for drugs which, used in combination, resulted in
increased sedative effects.
As in Bearman, there are no facts suggesting Dr.
Cohanshohet was negligent in treating his patients or that he
prescribed controlled substances without meeting the standard of
care. Given that Dr. Cohanshohet is a pain management
specialist who sometimes treats patients seeking active cancer
treatment, palliative care, and end-of-life care, it is reasonable to
assume at least some of his patients would require treatment for
pain that would exceed the recommended dose. Indeed, there is
no indication how many patients Dr. Cohanshohet treats in total
and what percentage the five patients at issue comprise that
total.
As in Wood, the Board has made no evidentiary showing of
how often similarly-situated physicians who specialize in pain
treatment might prescribe these drugs. Neither has the Board
made any showing of the likelihood that the prescriptions could
have been properly issued, given what is known of Dr.
Cohanshohet’s practice. Instead, Dr. Berger identified instances
17
where his prescribing patterns would have been appropriate.
Specifically, Dr. Berger indicated that the CDC’s prescribing
recommendations, relied upon by Dr. Naqvi, do not apply in cases
involving “active cancer treatment, palliative care, and end-of-life
care.” Dr. Naqvi failed to discuss these circumstances in his
declaration.
This is in contrast to the supporting evidence in Cross,
which provided much greater detail as to why the drugs
prescribed posed a greater risk to the three patients identified as
opposed to a patient who was not a postmenopausal woman.
In addition, one of the patients in Cross received doses that
equaled three times the maximum recommended dose. Another
patient denied she had been treated by the psychiatrist and the
psychiatrist had been previously disciplined by the Texas Medical
Board for improper prescription practices. (Cross, supra, 11
Cal.App.5th at pp. 312–315.) Cross presented a much greater
showing of good cause to compel compliance of the subpoenas.
The Attorney General contends the consumer complaint,
“which alleged the exact concerns identified in Dr. Naqvi’s
declaration,” provides the additional evidence necessary to
constitute good cause. We are not persuaded an anonymous
complaint which provides scant detail, particularly about who
and when the prescriptions were written, constitutes substantial
evidence of good cause. Indeed, we are skeptical the complaint
bolsters Dr. Naqvi’s suspicions, given that Dr. Naqvi was induced
to look through the CURES report for improper prescriptions of
opioids because of the complaint. Thus, it may be the case that
Dr. Naqvi looked through the CURES report to justify the
allegations in the anonymous complaint.

Outcome: The order to comply with the challenged subpoenas is reversed and the trial court is directed to issue a new order denying the petition. Dr. Cohanshohet is awarded his costs on appeal.

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