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Dean v. St. Mary Emergency Group, LLC

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

DERRICK DEAN, M.D.
v.
ST. MARY EMERGENCY GROUP, LLC, ET AL.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20155856 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

          Regel Louis Bisso Robert G. Miller, Jr. Bisso & Miller, COUNSEL FOR PLAINTIFF/APPELLEE: Derrick Dean, M.D.

          R. Joshua Koch, Jr. Koch & Schmidt, LLC, COUNSEL FOR PLAINTIFF/APPELLEE: Derrick Dean, M.D.

          James L. Pate Kenneth Wayne Jones, Jr. Neuner Pate, COUNSEL FOR DEFENDANT/APPELLEE: Westport Insurance Corporation

          Celia R. Cangelosi Attorney at Law, COUNSEL FOR OTHER APPELLANT: Louisiana Board of Pharmacy.

          James H. Gibson, Stacy N. Kennedy, Allen & Gooch, COUNSEL FOR DEFENDANTS/APPELLEES: The Gachassin Law Firm Julie Ann Savoy.

          Lisa Eve Mayer, Sara R. Buggs, Neuner Pate COUNSEL FOR DEFENDANTS/APPELLEES: The Schumacher Group of Louisiana, Inc., St. Mary Emergency Group, LLC.

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges. [1]

          SHANNON J. GREMILLION JUDGE.

         The appellant, the Louisiana Board of Pharmacy (the Board), appeals the trial court's judgment granting the defendants-appellees, Gachassin Law Firm and Julie Ann Savoy's (Gachassin), motion to compel the Board to provide a physician's login and search history of the prescription monitoring program (PMP). For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Dr. Derrick Dean was sued by the family of Kenneth Scully following Scully's death after admission to the emergency room in which Dr. Dean was working. Dr. Dean employed the Gachassin Law Firm, for whom Savoy is employed as an attorney, to defend him from the medical malpractice suit filed against him. However, before the medical review panel convened, the matter was settled with Scully's family for $450, 000.

         Thereafter, Dr. Dean sued Gachassin for legal malpractice. Gachassin sought to compel the Board to "disclose the date, time and portal location of Dr. Dean's access of the online database concerning Mr. Scully for the time period of 2013 through the present date." The PMP is a repository of information collected by the Board that monitors the dispensation of controlled substances and other drugs of concern in the state. Gachassin sought the information for purposes of showing inconsistencies in the times Dr. Dean claimed to have accessed the database relative to the settlement reached with Scully's family.

         The trial court granted Gachassin's motion to compel. The Board filed a supervisory writ with this court in 16-1064. The Board also filed the instant appeal seeking reversal of the trial court's grant of the motion to compel. We have consolidated the writ application and appeal. The Board's sole assignment of error is that the trial court erred in granting the motion to compel filed by Gachassin.

         DISCUSSION

         This case presents a question of law: Whether a physician's login time, portal location, and search history of an individual patient qualifies as "prescription monitoring information" subject to the limitations of La.R.S. 40:1007, an issue of first consideration. The trial court reasoned that the login information did not qualify as "prescription monitoring information" as follows:

But here what they're looking for is the information only upon when the doctor accessed the program. When did he open the door? I'm not looking for any information in the closet; they just want to know when he opened the door.

         We review questions of law de novo. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. We construe evidentiary privileges narrowly because they prevent the search for truth. Renfro v. Burlington Northern and Sante Fe RR, 06-952 (La.App. 3 Cir. 12/6/06), 945 So.2d 857, writ denied, 07-0303 (La. 4/27/07), 955 So.2d 684.

         Louisiana Revised Statutes 40:1007(A)(emphasis added) titled "Access to Prescription Monitoring Information" provides:

A. Except as provided in Subsections C, D, E, F, G, H, and I of this Section, prescription monitoring information submitted to the board shall be protected health information, not subject to public or open records law, including but not limited to R.S. 44:1 et seq., and not subject to disclosure. Prescription monitoring information shall not be available for civil subpoena from the board nor shall such information be disclosed, discoverable, or compelled to be produced in any civil proceeding nor shall such records be deemed admissible as evidence in any civil proceeding for any reason. Notwithstanding this provision, law enforcement and professional licensing, certification, or regulatory agencies may utilize prescription monitoring information in the course of any investigation and subsequent criminal and administrative proceedings, but only in accordance with federal and state law and the requirements of this Part.
B. The board shall maintain procedures to ensure that the privacy and confidentiality of patients and patient information collected, recorded, transmitted, and maintained is not disclosed to persons or entities except as in Subsections C, D, E, F, G, H, and I of this Section.
C. The board shall review the prescription monitoring information. If there is reasonable suspicion to believe a breach of professional or occupational standards may have occurred, the board shall notify the appropriate professional licensing agency with jurisdiction over prescribers or dispensers and shall provide prescription monitoring information required for an investigation.
D. The board shall provide prescription monitoring information to public or private entities, whether located in or outside of the state, for public research, policy, or educational purposes, but only after removing information that identifies or could be reasonably used to identify prescribers, dispensers, and individual patients or persons who received prescriptions from prescribers.
E. The following persons, after successful completion of the educational courses identified in R.S. 40:1008, may access prescription monitoring information at no cost and in the same or similar manner, and for the same or similar purposes, as those persons are authorized to access similar protected health information under federal and state law and regulation:
(1) Persons authorized to prescribe or dispense controlled substances or drugs of concern, or their delegates as defined by rule, for the purpose of providing medical or pharmaceutical care for their patients, or for verifying their prescribing records.
(2) Designated representatives from the professional licensing, certification, or regulatory agencies of this state or another state charged with administrative oversight of those professionals engaged in the prescribing or dispensing of controlled substances or other drugs of concern.
(3) Designated representatives from the Louisiana Medicaid program regarding Medicaid program recipients.
(4) Designated representatives of the board and any vendor or contractor establishing or maintaining the prescription monitoring program.
F. The board may provide a report containing prescription monitoring information upon application of local, state, out-of-state, and federal law enforcement or prosecutorial officials engaged in the administration, investigation, or enforcement of the laws governing controlled substances or other drugs of concern in ...

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