NO BLANKET PRIVILEGE AGAINST SELF-INCRIMINATION IN DISCIPLINE CASES

California Osteopathic Medical Board Lawyers

An appellate court in Washington State rejected the argument of a physician that the state’s osteopathic medical board had violated his constitutional privilege against self-incrimination and protection against unreasonable search and seizure by ordering him to produce prescription records and by obtaining other prescription records from a state database (Alsager v. Board of Osteopathic Medicine and Surgery).

The board sanctioned osteopath Dale Alsager in 2008 for inappropriately prescribing dangerous medications, prohibiting him from prescribing Schedule II or III controlled substances.

However, in 2012, acting on a complaint, the board again investigated Alsager, requesting that Alsager provide a copy of the complaining patient’s file. When Alsager sought to quash the file request, the board searched Washington State’s prescription monitoring database and discovered that Alsager had prescribed Schedule III drugs, in violation of the prohibition from his 2008 disciplinary case.

This discovery prompted a new investigation by the board, and an investigator again requested medical records which Alsager refused to provide, citing the Fourth and Fifth Amendments and claiming that he could not be compelled to cooperate.

After the board rejected those constitutional arguments, Alsager petitioned for a declaratory judgment based on the same claims. Meanwhile, the board revoked Alsager’s license after he refused to testify at his disciplinary hearing, and Alsager appealed. The Court of Appeals of Washington, Division 2, consolidated the cases and issued a decision November 15.

On appeal, Alsager argued that board disciplinary proceedings were “quasicriminal” in nature and that defendants in such cases have a constitutional protection against self-incrimination. Alsager claimed that the board, by forcing him to testify and produce records, had violated that right.

The Court of Appeals disagreed. Citing U.S. Supreme Court precedent, Chief Judge Thomas Bjorgen wrote that, under the factors that court created to determine whether proceedings are civil or quasi-criminal, medical disciplinary proceedings should be considered civil in nature. Thus, the Fifth Amendment privilege against self-incrimination does not apply to such proceedings.

Addressing the Fifth Amendment’s application to the potential for a licensee to provide self-incriminating information that could be used in a future criminal case, the court held that, in order to claim the privilege, affected licensees must do so by raising “specific, individual objections, not by invoking blanket constitutional protections to avoid participating in the proceedings,” as Alsager had done.

Alsager also argued that the board’s search and gathering of prescription records violated his constitutional right to be free from unreasonable search and seizure. Addressing the claim, the court noted that, under its own precedent, patients have only a “limited expectation of privacy in prescription records . . . ‘given the State’s vital interest in controlling the distribution of dangerous drugs.'” As a prescribing physician, Alsager, the court noted, had even less of an expectation of privacy, as he “should be even more aware than patients that the government exercises tight regulatory oversight of these controlled substances.”

“[Prescription records kept under the prescription monitoring program, either by a pharmacist or as part of the state database, are not protected from all governmental examination under the Fourth Amendment,” Judge Bjorgen wrote. Having addressed and rejected Alsager’s constitutional claims, the court affirmed the board’s decision to permanently revoke his license.

© 2018 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.