1 2 3 4 5 6 Richard D. Barton (Bar No. 102613) E-mail: rick.barton@procopio.com Shelley A. Carder (Bar No. 137755) E-mail: shelley.carder@procopio.com Natalie V. Mueller (Bar No. 292714) E-mail: natalie.mueller@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 12544 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: 858.720.6300 Facsimile: 619.235.0398 7 8 Attorneys for non-parties SHARP HEALTHCARE & SHARP GROSSMONT HOSPITAL 9 BEFORE THE 10 MEDICAL BOARD OF CALIFORNIA 11 DEPARTMENT OF CONSUMER AFFAIRS 12 STATE OF CALIFORNIA Case No. 800-2013-000930 OAH NO.: 2015120747 13 14 In the Matter of the Accusation Against NON-PARTIES’ NOTICE OF MOTION AND MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 15 16 ADAM F. DORIN, M.D. [GOV. CODE §§11507.5 AND 11507.6; CIVIL CODE § 56 ET SEQ.; CODE OF CIVIL PROCEDURE §§2031.060 AND 2017.020(A); 45 C.F.R. §165.512;§1026] 17 18 Physician’s & Surgeon’s Certificate No. G86440, Respondent. 19 Hearing Date: Oct. 17-21, 2016 20 TO THE OFFICE OF ADMINISTRATIVE HEARINGS, EACH PARTY AND 21 22 ATTORNEYS OF RECORD FOR EACH PARTY IN THIS MATTER, PLEASE TAKE NOTICE 23 THAT: 24 SHARP HEALTHCARE & SHARP GROSSMONT HOSPITAL (collectively “Sharp”) are 25 interested persons in the Matter of the Accusation against Adam F. Dorin, Case No. 800-2013- 26 000930, OAH No. 2015120747 because Sharp was served with a subpoena seeking, among other 27 things, the release of “all video from all video cameras installed in the Sharp Grossmont Hospital 28 Women’s Health Center Operating Rooms between July 17, 2012 through April 3, 2013.” NOTICE OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 1 Sharp will, and by this motion does, move for an order quashing this request for production 1 2 and/or for a protective order on the following grounds: 3 (a) There is no right to prehearing discovery from nonparty witnesses; 4 (b) The expansive video sought contains protected health information of third parties 5 protected from disclosure in accordance with the California Medical Information Act (Civil Code 6 §§ 56 et seq., and specifically §56.10) and individually identifiable health information, protected 7 by the federal Health Information Portability and Accountability Act of 1996 (“HIPAA”); (c) The expansive, full, unredacted video contains images of third persons whose privacy 8 9 interests would be violated by disclosure; 10 (d) Respondent ADAM DORIN (“DORIN”) fails to establish good cause for further 11 disclosure, as Sharp produced the video relating to DORIN that was presented to Sharp Grossmont 12 Hospital’s Medical Executive Committee, its Board of Directors, and as was produced to the 13 Medical Board/Office of the Attorney General. Thhe remainder of any video was not used or 14 relied upon to substantiate the actions taken against DORIN in this proceeding is irrelevant and 15 immaterial to the allegations; (e) The expansive video sought is entitled to protection from disclosure as it contains 16 17 images of numerous third parties who are not provided notice or opportunity to object and/or to do 18 so in this instance would be an unreasonable burden; and 19 (c) Pursuant to Code of Civil Procedure, §§ 2017(c), 2017.020, and/or 2031.060, as well as 20 Evidence Code, §352, the burden, expense, and/or intrusiveness of the discovery clearly outweighs 21 the likelihood that the information sought will lead to the discovery of admissible evidence. In 22 addition, the likely burden or expense of the proposed discovery outweighs the likely benefit, 23 taking into account the amount in controversy, the resources of the parties, the importance of the 24 issues in the litigation, and the importance of the requested discovery in resolving the issues. Alternatively, Sharp respectfully requests this Court issue such order as it deems just and 25 26 proper to protect the privacy rights of third parties who appear on the requested video clips and to 27 assist Sharp in compliance with its legal obligations to protect such rights. 28 / / / 2 NOTICE OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 1 This motion is based on this Notice of Motion; the supporting Memorandum of Points and 2 Authorities; Declaration of Carlisle C. Lewis, III, dated March 25, 2016, with attached, filed 3 exhibits A-C; the proposed order; and upon such other oral and/or documentary evidence as the 4 Court may request at any hearing on this motion. 5 DATED: March 29, 2016 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 6 7 By: Richard D. Barton, Esq. Shelley A. Carder, Esq. Attorneys for Sharp Healthcare and Sharp Grossmont Hospital 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 1 2 3 4 5 6 7 8 Richard D. Barton (Bar No. 102613) E-mail: rick.barton@procopio.com Shelley A. Carder (Bar No. 137755) E-mail: shelley.carder@procopio.com Natalie V. Mueller (Bar No. 292714) E-mail: natalie.mueller@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 12544 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: 858.720.6300 Facsimile: 619.235.0398 Attorneys for Non-Parties: SHARP HEALTHCARE & SHARP GROSSMONT HOSPITAL BEFORE THE 9 MEDICAL BOARD OF CALIFORNIA 10 DEPARTMENT OF CONSUMER AFFAIRS 11 STATE OF CALIFORNIA 12 13 In the Matter of the Accusation Against Case No.: 800-2013-000930 OAH NO.: 2015120747 14 15 NON-PARTIES’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER ADAM F. DORIN, M.D. 16 17 Physician’s & Surgeon’s Certificate No. G86440, [GOV. CODE §§11507.5 AND 11507.6; CIVIL CODE § 56 ET SEQ.; CODE OF CIVIL PROCEDURE §§2031.060 AND 2017.020(A); 45 C.F.R. §165.512;§1026] 18 19 Respondent. Hearing Date: Oct. 17-21, 2016 20 21 Sharp Healthcare and Sharp Grossmont Hospital (collectively “Sharp”) respectfully submit 22 the following memorandum of points and authorities in support of this motion to quash and/or for 23 protective order. 24 25 FACTUAL INTRODUCTION On or about October 9, 2015, Sharp was served with an administrative subpoena, a true and 26 correct copy of which is filed as Exhibit A in support of this motion. The subpoena commands 27 Sharp to produce certain records in connection with the matter pending against ADAM F. DORIN, 28 M.D. (“DORIN”) filed by the MEDICAL BOARD OF CALIFORNIA, Accusation No. 800-2013- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 000930. Among the items requested are “all video from all video cameras installed in the Sharp 2 Grossmont Hospital Women’s Health Center Operating Rooms between July 17, 2012 through 3 April 3, 2013.” In or about May of 2012, Sharp Grossmont Hospital (“SGH”) received a report that drugs 4 5 were disappearing from anesthesia cards in the three operating rooms at the Women’s Health 6 Center. Accordingly, SGH took steps to investigate the matter. On or about July 17, 2012 SGH 7 installed video cameras on the drug carts in the three operating rooms and set to begin filming upon 8 detection of motion. Filming began thereafter and continued through June of 2013. (See 9 Declaration of Carlisle C. Lewis, III, dated March 25, 2016, (“Lewis Declaration”) p.1, l. 26 – p. 2, 10 11 l. 5.) Twelve video clips evidence instances between September 14, 2012 through April 3, 2013 12 in which DORIN is observed on camera entering one of more of the operating rooms and removing 13 items from the drug carts including propofol, and placing the items into his shirt pocket. Three 14 clips captured on April 3, 2013 evidence a suspicious sequence of events. The first clip at 2:20 p.m. 15 evidences the staff stocking the cart with medications. The second clip at 2:23 p.m. evidences 16 DORIN entering an otherwise empty operating theater, taking drugs from the cart, and putting 17 them in his shirt. The third clip of video evidences the staff re-entering the room to count the 18 medications on the cart to confirm that, indeed, propofol was now missing from the cart. (See 19 Lewis Declaration, p.2, l.6 – p. 3, l. 4.) The twelve video clips were collected and shown to 20 Sharp’s Board and peer review committees in connection with the investigations involving 21 DORIN. These same twelve video clips were provided to the Attorney General/Medical Board and 22 to DORIN. 23 The remaining video clips capturing images between July 2012 and February of 2013 were 24 not retained by SGH. However there are 6,966 video clips capturing images between February 1, 25 2013 and June 25 of 2013. Except for the video clips identified in paragraph 5 of the Lewis 26 Declaration, none of the other 6,966 video clips were utilized in connection with any investigations 27 involving DORIN. None of the other 6,966 video clips were produced to the Attorney 28 General/Medical Board of California. None of the other 6,966 video clips provide any exculpatory 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 evidence for Dr. DORIN. In fact, the depictions on these other video clips are completely 2 irrelevant to the question of whether Dr. DORIN acted in the manner alleged. (See Lewis 3 Declaration, p. 3, l.5-14.) 4 Some of the 6,966 video clips depict female patients in their most vulnerable state, under 5 anesthesia, exposed, and undergoing medical procedures. The video clips also depict healthcare 6 providers other than DORIN working in an area that is not open and/or accessible to the public. 7 The video clips even capture images of other persons who had reason to come and go through the 8 operating rooms, such as administrators, maintenance staff, vendors, etc. (See Lewis Declaration, 9 p.2, ll. 6-13.) 10 On or about November 11, 2015, Sharp responded to the subpoena, providing a number of 11 responsive documents and a certain amount of video information. Specifically with regard to the 12 video, Sharp explained that it had “produced the video relating to Dr. Dorin that was presented to 13 Sharp Grossmont Hospital’s executive committee, the joint committee of the Board of Directors 14 and the Medical Executive Committee, as well as the Board of Directors.” Sharp further asserted it 15 would “. . . not produce all the video that was retained during the investigation as it may contain 16 protected health information and was not part of the information presented to the Medical 17 Executive Committee, the joint committee or the Board of Directors.” Sharp also raised objection 18 to the production of documents covered by the attorney/client privilege, attorney work product 19 privilege, as well as documents containing protected health information. A true and correct copy 20 of Sharp’s correspondence responding to the subpoena is filed as Exhibit B in support of this 21 motion. (See Lewis Declaration, p. 3, l. 22 – p. 4, l. 1.) 22 Sharp contends DORIN is not entitled to prehearing discovery from third parties such as 23 Sharp. Even if he were, Sharp contends the 6,966 video clips contain protected identifiable health 24 information and images protected by general rights of privacy. To order these video clips 25 produced, the Court would have to disregard the statutes applicable to administrative practice and 26 find a compelling need that outweighs the voluminous rights of privacy in these 6,966 video clips 27 spanning a four month period of time from within the three operating rooms and sometimes 28 depicting patients in a manner which invades their privacy. DORIN has not and cannot establish 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 such compelling need. There is nothing exculpatory on any of the 6,966 video clips. (See Lewis 2 Declaration, p.3, ll. 10-11 and p.4, ll. 16-17.) Nothing in the clips which have not been produced 3 counter or contradict the images which were produced. (See Lewis Declaration, p. 3, ll. 5 -13.) 4 After receipt of Sharp’s response, DORIN continues to assert a right to the entirety of video 5 requested in the subpoena, necessitating this motion. DORIN raised no other objection to Sharp’s 6 response and, therefore, any other bases are waived. (See Lewis Declaration, p.6, ll. 3 - 10.) 7 8 This Court is only asked to quash the administrative subpoena to protect Sharp, its patients, employees, and others and to order that the 6,966 video clips need not be produced. 9 DORIN WAVED ALL OBJECTIONS TO TIMELINESS OF THIS MOTION 10 After receipt of Sharp’s response, counsel for DORIN contacted Sharp to request the 11 entirety of the video sought. Counsel for both DORIN and Sharp met and conferred on the issues 12 on several occasions and reached an impasse. (See Lewis Declaration, p. 5, l. 22 – p. 6, l. 2.) As 13 documented in e-mails dated December 23, 2015 and March 9, 2016, counsel for DORIN agreed to 14 waive any time requirement regarding the bringing of this motion. Sharp and DORIN agree this 15 motion should be heard on the merits. A true and correct copy of these emails are collectively filed 16 as Exhibit C; See also Lewis Declaration, p.6, l.11 - 14.) 17 18 DORIN HAS NO RIGHT TO SUBPOENA INFORMATION FROM SHARP Generally, there is no due process right to prehearing discovery in administrative hearing 19 cases, and the scope of discovery in administrative hearings is governed by statute and the agency's 20 discretion. (California Teachers Ass'n v. California Com'n on Teacher Credentialing (2003)111 21 Cal. App. 4th 1001; Cimarusti v. Superior Court (2000)79 Cal. App. 4th 799, as modified, (Apr. 22 26, 2000). 23 Sections 11500 et seq. of the Government Code provide for the method of administrative 24 adjudication, including actions brought by the Medical Board of California. (See Bus. & Prof. 25 Code, § 2230.) Government Code section 11507.5 expressly declares that the provisions of 26 Government Code section 11507.6 provide the exclusive right to and method of discovery. (Board 27 of Medical Quality Assur. v. Superior Court (1977) 73 Cal. App. 3d 860.) Discovery from third 28 parties is not part of either statute. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 The comprehensive Administrative Procedures Act provisions governing use of subpoenas 2 in administrative hearings do not authorize the use of subpoenas in prehearing discovery. DORIN 3 has no right to prehearing discovery from a non-party witness such as Sharp. (Gilbert v. Superior 4 Court (1987) 193 Cal. App. 3d 161, 166; review denied Aug. 19, 1987.) Accordingly, this Court 5 should grant Sharp’s motion to quash and/or for protective order. 6 If the Court, for some reason, considers ordering compliance with the prehearing subpoena, or in 7 case there is consideration of issuing a subpoena for hearing, Sharp raises the following additional 8 points in opposition and requests the Court grant this motion to quash and/or for protective order 9 on the following grounds. 10 THE OFFICE OF ADMINISTRATIVE HEARINGS HAS AUTHORITY 11 TO HEAR THIS MOTION For discovery between the parties to an administrative proceeding, motions to compel are to 12 13 be filed with the administrative law judge. (Gov. Code, §11507.7(a).) As there is no right to 14 prehearing discovery from third parties, no provision is clearly made with regard to motions to 15 compel discovery from third parties or motions to quash and for protective orders. However, with 16 regard to witness and evidence at the hearing, “[t] he presiding officer has discretion to exclude 17 evidence if its probative value is substantially outweighed by the probability that its admission will 18 necessitate undue consumption of time.” (Gov. Code, §11513(f).) DORIN WAIVED ALL OTHER OBJECTIONS 19 20 The subpoena requests production of a number of items. (See Exhibit A.) Sharp produced a 21 number of documents in response to the subpoena, including the video relating to DORIN that was 22 presented in administrative proceedings and was produced to the Attorney General/Medical Board. 23 (See Exhibit B and Lewis Declaration, p.3, l. 8 – p. 4, l. 1.) DORIN has maintained objection 24 only to the failure to produce all video from all video cameras installed in the Sharp Grossmont 25 Hospital Women’s Health Center Operating Rooms between July 17, 2012 through April 3, 2013. 26 Accordingly, the only issue before the Court is whether DORIN is entitled such discovery. 27 /// 28 /// 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 THE REQUESTED VIDEO CONTAINS IMAGES OF PROTECTED 2 BY MULTITUDINOUS RIGHTS OF PRIVACY The video previously produced to DORIN and the Attorney General/Medical Board is 3 4 relevant to the issue of whether DORIN pilfered drugs from the anesthesia carts in the operating 5 room, one of the allegations contained within the Accusation. Sharp produced to DORIN and the 6 Attorney General/Medical Board of California the same portion of video provided and used in the 7 investigations concerning DORIN at SGH. (See Lewis Declaration, p. 2, l. 23 – p. 3, l.4.) Except 8 for the video clips identified above, none of the other 6,966 video clips were utilized in connection 9 with any investigations involving Dr. DORIN at SGH or given to the Attorney General/Medical 10 Board. (See Lewis Declaration, p.3, l. 5 - 13.) The remaining video clips are irrelevant to the allegations in the Accusation. The question 11 12 of whether or not the video accurately and clearly evidences DORIN removing drugs and placing 13 them in his shirt can be answered by the video previously produced. None of the other 6,966 video 14 clips provide any exculpatory evidence for Dr. DORIN. For example, there are no clips 15 contemporaneous to the produced clips which depict him returning medication to the carts. In fact, 16 the depictions on these other video clips are of patients, Sharp staff, vendors, visitors, and others, 17 are completely irrelevant to the question of whether Dr. DORIN acted in the manner alleged. 18 (Ibid.) It is Sharp’s position that the request for all of the 6,966 video clips runs afoul of privacy 19 20 interests of a multitude of persons, protected by among other things Article 1, Section 1 of the 21 California Constitution, the California Medical Information Act (Civil Code § 56 et seq., and 22 specifically §56.10), California Evidence Code section 994, the Fourth Amendment of the U.S. 23 Constitution and/or the Health Insurance Portability and Accountability Act (HIPAA). A health 24 care entity has standing to raise the privacy rights of its patients. (Rudnick v. Superior Court 25 (1974) 11 Cal. 3d 924, 933, fn. 12.) 26 /// 27 /// 28 /// 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 THE REQUESTED VIDEO IS PROTECTED 2 BY THE STATE AND FEDERAL CONSTITUTIONS The California Constitution “creates a zone of privacy which protects against unwarranted 3 4 compelled disclosure of certain private information. [Citations.]” (Planned Parenthood Golden 5 Gate v. Superior Court (2000) 83 Cal. App. 4th 347, 357; see also California Constitution, Article 6 1 Section 1.) Patients have an objectively reasonable expectation that video reflecting them in their 7 most vulnerable state, unconscious on an operating room table, will not be disclosed. The right of 8 privacy does not purport to prohibit all incursion into individual privacy, but rather [requires] that 9 any such intervention must be justified by a compelling interest.” (White v. Davis (1975) 13 Cal. 3d 10 757, 775; Board of Medical Quality Assurance v. Gheranrdini (1979) 93 Cal.App.3d 669, 680.) 11 The constitutional right of privacy is violated where an individual's personal and objectively 12 reasonable expectation of privacy has been infringed by unreasonable intrusion. (People ex rel. 13 Franchise Tax Bd. v. Superior Court (1985) 164 Cal. App. 3d 526, 541.) The Fourth Amendment to the U.S. Constitution grants privacy to citizens against 14 15 unreasonable searches and seizures and the Ninth Amendment has been interpreted to protect 16 privacy rights not specifically enumerated elsewhere in the Constitution. (See Griswold v. Conn. 17 (1965) 381 U.S. 479, 491 [“To hold that a right so basic and fundamental and so deep-rooted in our 18 society as the right of privacy in marriage may be infringed because that right is not guaranteed in 19 so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment 20 and to give it no effect whatsoever.”] Some of the 6,966 video clips not produced depict female patients, unconscious, undressed 21 22 on operating room tables, undergoing medical procedures. These are certainly not images that 23 should be disclosed. In addition, some of the 6,966 video clips evidence other healthcare providers 24 doing their work in private operating rooms and without expectation that their images would be 25 disclosed. Some of the 6,966 video clips depict other persons who had reason to be in the 26 operating rooms, which are not in a public areas, and where they would have had an expectation of 27 privacy. 28 /// 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) THE REQUESTED VIDEO IS PROTECTED BY THE CMIA 1 The California Medical Information Act (Civil Code § 56 et seq.) (“CMIA”) generally bars 2 3 disclosure of a patient's medical information without the patient's authorization, and health care 4 providers must hold that information confidential unless compelled to disclose by provisions of the 5 Act allowing such disclosure. (Civ. Code, § 56.10.) In addition, the CMIA requires any disclosure 6 be narrowly defined “reflecting the Legislature's interest in assuring that medical information may 7 be disclosed only for a narrowly defined purpose, to an identified party, for a limited period of 8 time.” (Pettus v. Cole (1996) 49 Cal. App. 4th 402, 426.) 9 Under the CMIA, “medical information” means any individually identifiable information, 10 in electronic or physical form, regarding a patient's medical history, mental or physical condition, 11 or treatment. “Individually identifiable” means that the medical information which includes or 12 contains any element of personal identifying information sufficient to allow for identification of the 13 individual. (Civ. Code, § 56.05 (j).) Thus, the video clips described herein can be recognized as 14 constituting protected information under the CMIA. The full panoply of video clips contains 15 medical information regarding numerous individuals who were in the three operating rooms at 16 Sharp. 17 THE REQUESTED VIDEO IS PROTECTED BY EVIDENCE CODE SECTION 994 18 California Evidence Code section 994 also provides patients a privilege to prevent the 19 disclosure of “confidential communications.” Video revealing patients being operated on should be 20 considered a communication in the same manner that a medical record or patient list is considered 21 a “communication.” (See Los Angeles Gay and Lesbian Center v. Superior Court (2011) 194 Cal. 22 App. 4th 288, 310 where the Court held a patient list was protected by the physician-patient 23 privilege.) 24 THE REQUESTED VIDEO IS PROTECTED BY HIPAA 25 Individually identifiable health information is also protected by federal law under the 26 Health Information Portability and Accountability Act of 1996 (“HIPAA”). HIPAA regulations 27 prohibit health care providers from divulging patients' medical records without their consent or a 28 qualified protective order. “Individual identifiers” includes: “. . . . (P) Biometric identifiers, 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 including finger and voice prints; (Q) Full face photographic images and any comparable images. . 2 . ” (45 C.F.R., § 164.514(b).) The HIPAA also provides significant civil and criminal penalties 3 forunlawful disclosure of patient medical records. (42 U.S.C. § 1320d–5; d–6(a) and (b).) 4 HIPAA permits disclosures in a judicial proceeding when ordered by a court or administrative 5 tribunal (see 45 CFR § 164.512[e][1] [i] ). “A covered entity may disclose protected health 6 information in the course of any judicial or administrative proceeding: (i) In response to an order of 7 a court or administrative tribunal, provided that the entity discloses only the protected health 8 information expressly authorized by such order; or (ii) In response to a subpoena, discovery 9 request, or other lawful process, that is not accompanied by an order of a court or administrative 10 tribunal, if: (A) The covered entity receives satisfactory assurance, as described in paragraph 11 (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been 12 made by such party to ensure that the individual who is the subject of the protected health 13 information that has been requested has been given notice of the request; or (B) The covered entity 14 receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party 15 seeking the information that reasonable efforts have been made by such party to secure a qualified 16 protective order that meets the requirements of paragraph (e)(1)(v) of this section.” These 17 conditions have not been satisfied. 18 MULTITUDINOUS PRIVACY RIGHTS 19 OUTWEIGH ANY COMPETING INTEREST 20 While medical information may also be disclosed pursuant to court order (See Civ. Code, 21 §56.10(b)(3)), a court may only make such order after balancing the competing interests of privacy 22 and confidentiality versus the asserted need for disclosure. Indeed, Code of Civil Procedure 23 section 2017.020(a) also employs a balancing test, which states: 24 25 26 27 The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 In addition, Code of Civil Procedure section 2031.060 also permits the Court to weigh the burden, 2 expense, and/or intrusiveness of the discovery. These statutes provide a basis for the Court to deny 3 production where protection of information protected by rights of privacy clearly outweighs the 4 likelihood that the information sought will lead to the discovery of admissible evidence. If the 5 party seeking disclosure establishes good cause, competing individual privacy rights must be 6 weighed by the Court to determine if disclosure is warranted. (See Fett v. Medical Board of 7 California (2016) 199 Cal. Rptr. 3d 196, reh'g denied (Feb. 25, 2016).) Similarly, federal law also requires courts to balance the need for information protected by 8 9 rights of privacy against the need for disclosure. (See e.g., Frederick v. California Dept. Of 10 Corrections and Rehabilitation, 2011 WL 1884201 (N.D.Cal.2011) (finding that while “at least 11 some portion of the personnel” file is relevant to plaintiff's claims, such discovery requests must be 12 tailored to relate to the issues involved in proving plaintiff's claims.) Here, the patients and other persons appearing in the 6,966 video clips clearly have a right 13 19 of privacy as to the images depicted on these clips. As at least one court said: The individual's right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. 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. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1. While the amendment does not prohibit all incursions into individual privacy, “any such intervention must be justified by a compelling interest” 20 (Gheranrdini, supra, at 93 Cal.App.3d at 679.) In this case, DORIN has not, and cannot, establish a 21 compelling interest that surmounts the privacy interests of patients, Sharp personnel and third 22 parties on 6,966 video clips. As noted above, these depict contain matters of great sensitivity going 23 to the core of the concerns for the privacy rights of numerous persons in places not normally 24 exposed to the public. DORIN has provided no information and/or evidence that would suggest 25 that any exculpatory evidence is available in the other 6,966 video clips. 26 /// 27 /// 14 15 16 17 18 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 AUTHORIZATION AND REDACTION 2 ARE UNREASONABLE AND UNWARRANTED Code of Civil Procedure section 1985.3 requires notification of third parties whose personal 3 4 privacy will be infringed by compliance with subpoenas. These procedures pertain to a subpoena 5 duces tecum for confidential personnel, medical, or similar files, held by government agencies. 6 (Code Civ. Proc., § 1985.4.) These protections pertain to administrative subpoenas. (See Code Civ. 7 Proc., § 1986; Cal. Const., art. I, § 1; also see e.g., Wood v. Superior Court (1985) 166 Cal. App. 8 3d 1138, 1147, 1149.) Given the number of persons who appear in the 6,966 video clips, this would require 9 10 numerous hours to identify, find, and notify such persons. This task may not even be possible to 11 accomplish this given the voluminous number of video clips. Furthermore, the task of providing 12 the identities of the persons who require notification would also violate privacy interests of those 13 persons. To require Sharp to undertake the significant burden of attempting to accomplish this task 14 would place an unreasonable financial burden on it and may not be possible in a timely fashion. 15 Sharp contends such action is unwarranted. The intangible benefit Dr. DORIN hopes to obtain by 16 production of the remaining video is far outweighed by the burden he seeks to place on Sharp. 17 Given the fact that his unprofessional and inappropriate conduct already necessitated time, 18 expense, and burden on Sharp to conduct the investigation, it is unreasonable to place additional 19 burden on Sharp by compelling notification and/or disclosure. (See Lewis Declaration, p. 5, ll. 3 – 20 15.) 21 If this Court were to order production of the 6,966 video clips and seek to protect the 22 images of patients and third parties, Sharp would find it necessary to hire the expertise of an 23 outside vendor to de-identify the depictions of persons captured on these thousands of video 24 images. This would be burdensome in time and cost. (See Lewis Declaration, p. 5, ll. 16 – 21.) 25 This would create an unreasonable burden which is incommensurate with any possible benefit that 26 could be derived by DORIN. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 27 407, 417.) DORIN posits only merely potentially useful evidence, and yet nothing on these 6,966 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 video clips could be materially exculpatory evidence. They do not refute the video clips already 2 produced. 3 CONCLUSION 4 For the foregoing reasons, Sharp respectfully requests an order quashing the subpoena 5 served on it and to determine that production, beyond that which has already occurred, would be 6 unduly burdensome, invasive of privacy rights of patients and other persons, and that DORIN fails 7 to establish good cause to order production. 8 DATED: March 25, 2016 9 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 10 11 12 13 14 By: Richard D. Barton, Esq. Shelley A. Carder, Esq. Natalie V. Mueller, Esq. Attorneys for non-parties Sharp Healthcare and Sharp Grossmont Hospital 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER (2015120747) 1 2 Richard D. Barton (Bar No. 102613) E-mail:rick.barton@procopio.com Shelley A. Carder (Bar No. Bar No.: 137755) E-mail:shelley.carder@procopio.com 3 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 4 5 12544 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: 858.720.6300 Facsimile: 619.235.0398 6 Attorneys for non-party SHARP GROSSMONT HOSPITAL 7 8 BEFORE THE 9 MEDICAL BOARD OF CALIFORNIA 10 DEPARTMENT OF CONSUMER AFFAIRS 11 STATE OF CALIFORNIA 12 13 Case No. 800-2013-000930 OAH NO.: 2015120747 In the Matter of the Accusation Against DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 14 15 ADAM F. DORIN, M.D. 16 17 [GOV. CODE §§11507.5 AND 11507.6; CIVIL CODE § 56 ET SEQ.; CODE OF CIVIL PROCEDURE §§2031.060 AND 2017.020(A); 45 C.F.R. §165.512;.§1026] Physician’s & Surgeon’s Certificate No. G86440, 18 Respondent. 19 20 1. Hearing Date: Oct. 17-21, 2016 I, Carlisle (“Ky”) C. Lewis, III, am the Senior Vice President and General Counsel 21 of Sharp HealthCare. I have personal knowledge of the matters set forth herein, except as to those 22 matters stated on information and belief and, as to those matters, I believe them to be true. If called 23 as a witness, I would competently testify to the same. 24 2. Sharp Grossmont Hospital (“SGH”) is one of the hospitals within the Sharp 25 HealthCare system. In or about May of 2012, SGH received a report that drugs were disappearing 26 from anesthesia cards in the three Women’s Health Center Operating Rooms. Accordingly, SGH’s 27 security undertook a number of steps to investigate the matter. On or about July 17, 2012, SGH 28 installed video cameras on the drug carts in the three operating rooms. Filming began thereafter DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION 1 and continued through June of 2013. Motion-detecting cameras were installed on the top of the 2 drug carts in the three operating rooms and would capture images whenever someone entered the 3 \room. 4 3. As would be expected with the multiple operating rooms and the lengthy period of 5 time during which this investigation was conducted, the video clips depict numerous persons 6 coming in and out of these operating rooms over eight months. Some of the video clips depict 7 patients in their most vulnerable state, under anesthesia, exposed and undergoing medical 8 procedures. The video clips also depict healthcare providers other than Dr. DORIN working in an 9 area that is not open and/or accessible to the public. The video clips even capture images of other 10 persons who had reason to come and go through the operating rooms, such as administrators, 11 maintenance staff, vendors, etc. 12 4. SGH security reviewed the video clips that were captured and found multiple 13 occasions between September 14, 2012 through April 3, 2013 in which Dr. DORIN is observed on 14 camera, entering one or more of the operating rooms and removing items from the drug carts 15 including propofol, and placing the items into his shirt pocket. Three clips captured on April 3, 16 2013 evidence a suspicious sequence of events. The first clip at 2:20 p.m. evidences the staff 17 stocking the cart with medications. The second clip at 2:23 p.m. evidences Dr. DORIN entering an 18 otherwise empty operating theater, taking drugs from the cart and putting them in his shirt. The 19 third clip of video evidences the staff re-entering the room to count the medications on the cart to 20 confirm that, indeed, propofol was now missing from the cart. 21 5. In order to present SGH’s findings to its Board, I directed that twelve clips of video 22 be collected together, the three clips previously mentioned from April 3, 2013, and the following 23 additional video clips: 2:18 a.m. on April 3, 2013; 11:34 p.m. on April 2, 2013; 2:04 p.m. on March 24 27, 2013; 5:02 a.m. on March 19, 2013; 9:37 p.m. on February 6, 2013; 12:27 a.m. on January 8, 25 2013; 2:45 a.m. on January 4, 2013; 12:11 a.m. on December 11, 2012 and 12:34 a.m. on 26 September 14, 2012. All twelve of these video clips were collected, copied and provided to SGH’s 27 executive committee, the joint committee of the Board of Directors and the Medical Executive 28 Committee, the Board of Directors. The purpose of this action was to support the investigatory 2 DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION 1 action commenced against Dr. DORIN. The same collection of video clips was also produced to 2 Dr. DORIN and the Attorney General/Medical Board of California. 6. 3 The remaining video clips capturing images between July 2012 and February of 4 2013 were not retained by SGH. However there are 6,966 video clips capturing images between 5 February 1, 2013 and June 25 of 2013. Expect for the video clips identified above, none of the 6 other 6,966 video clips were utilized in connection with any investigations involving Dr. DORIN at 7 SGH. None of the other 6,966 video clips were produced to the Attorney General/Medical Board 8 of California. None of the other 6,966 video clips provide any exculpatory evidence for Dr. 9 DORIN. For example, there are no clips contemporaneous to the produced clips which depict him 10 returning medication to the carts. In fact, thee depictions on these other video clips are completely 11 irrelevant to the question of whether Dr. DORIN acted in the manner alleged. 7. 12 On or about October 9, 2015, I was served as the representative of Sharp HealthCare 13 and SGH with an administrative subpoena requesting certain records in connection with the matter 14 pending against ADAM F. DORIN, M.D. filed by the Medical Board Of California, Accusation 15 No. 800-2013-000930. A true and correct copy of the subpoena is filed as Exhibit A in support of 16 this motion. In my capacity as Senior Vice President and General Counsel of Sharp HealthCare, I 17 reviewed the subpoena. Although it is my understanding and belief that Sharp HealthCare and/or 18 SGH was not required to comply with this subpoena, I directed that the same documents which had 19 been provided to the Medical Board also be provided to counsel for Dr. DORIN. 8. 20 By letter dated November 11, 2015, on behalf of Sharp HealthCare and SGH, I 21 responded to counsel for Dr. DORIN and objected to the request to produce “all video from all 22 video cameras installed in the Sharp Grossmont Hospital Women’s Health Center Operating 23 Rooms between July 17, 2012 through April 3, 2013.” In my correspondence I also raised Sharp 24 HealthCare and SGH’s objection to the requested production of documents covered by the 25 attorney/client privilege, attorney work product privilege, as well as documents containing 26 protected health information. A true and correct copy of my correspondence responding to the 27 subpoena is filed as Exhibit B in support of this motion. 28 /// 3 DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION 9. 1 I sought to assure Dr. DORIN that Sharp had “produced the video relating to Dr. 2 Dorin that was presented to Sharp Grossmont Hospital’s executive committee, the joint committee 3 of the Board of Directors and the Medical Executive Committee, as well as the Board of 4 Directors.” There were no video clips used in the administrative proceedings that were not 5 produced to the parties in this proceeding. 10. 6 In addition, on behalf of Sharp HealthCare and SGH, I declined to “. . . produce all 7 the video that was retained during the investigation as it may contain protected health information 8 and was not part of the information presented to the Medical Executive Committee, the joint 9 committee or the Board of Directors.” 11. 10 It is Sharp HealthCare and SGH’s position that the request for the entire nine 11 months of video runs afoul of privacy interests of a multitude of persons, protected by among other 12 things by Article 1, Section 1 of the California Constitution, the California Medical Information 13 Act (Civil Code § 56 et seq., and specifically §56.10), California Evidence Code § 994, the Fourth 14 and/or Ninth Amendments to the U.S. Constitution and/or the Health Insurance Portability and 15 Accountability Act (HIPAA). It is Sharp HealthCare and SGH’s position that disclosure of these 16 additional 6,966 video clips are irrelevant, unlikely to lead to any relevant or exculpatory evidence. 12. 17 Disclosure of the additional video clips would be an unreasonable intrusion into the 18 privacy rights of many other persons and create a significant burden on SGH. The question of 19 whether or not the video clips already in the possession of the parties accurately and clearly 20 evidences the conduct alleged is not enhanced by any further production. The remaining 6,966 21 video clips are irrelevant to the allegations in the Accusation. To require production would be 22 unduly burdensome and invade significant rights of privacy of numerous persons who have a right 23 to the continued protection of their personal identifiable health information and their general rights 24 of privacy. 25 13. The 6,966 video clips all capture scenes within the three operating rooms, which are 26 not open to the public. There are images contained within the multitude of images of women 27 undergoing operations of a very personal, private nature, unconscious and in states of exposure 28 /// 4 DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION 1 depending on the operation being performed. In addition, there are depictions of staff and other 2 persons who also have rights of privacy which should be respected. 3 14. Code of Civil Procedure section 1985.3 requires notification of third parties whose 4 personal privacy will be infringed by compliance with subpoenas. Given the number of persons 5 who appear in the 6,966 video clips, this would require numerous hours to identify, find, and notify 6 such persons and it may not even be possible to accomplish this given the voluminous number of 7 video clips. Furthermore, the task of providing the identities of the persons who require 8 notification would also violate privacy interests of those persons and the law or require Sharp 9 Healthcare and/or SGH undertake the significant burden of attempting to accomplish this task. 10 Sharp HealthCare and SGH contends such action is unwarranted. The intangible benefit Dr. 11 DORIN hopes to obtain by production of the remaining video is far outweighed by the burden he 12 seeks to place on Sharp HealthCare and SGH. Given the fact that his unprofessional and 13 inappropriate conduct already necessitated time, expense and burden on Sharp HealthCare and 14 SGH to conduct the investigation, it is unreasonable to place additional burden on Sharp 15 HealthCare and SGH. 16 15. If this Court were to order production of all the 6,966 video clips and seek to protect 17 the images of patients and third parties, it would require the expertise of an outside vendor to de- 18 identify the depictions of persons captured on these thousands of video images. I cannot even 19 estimate how expensive this would be or how long this would take. This would create an 20 unreasonable burden which is incommensurate with any possible benefit that could be derived by 21 Dr. DORIN. 22 16. After receipt of my response, counsel for Dr. DORIN and I have had several 23 conversations regarding the videos. I have explained the concern that it would invade the most 24 crucial privacy rights of Sharp HealthCare and SGH’s patients, often in their most vulnerable state, 25 under anesthesia and exposed on the operating room table. In addition, production of the 26 remainder of the video would invade the privacy rights of Sharp HealthCare and SGH’s other 27 physicians and health care providers, employees, and other persons. I have sought to assure Dr. 28 DORIN there is nothing on these videos that is relevant to the issues raised in the Accusation. It is 5 DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION opinion Dr. DORIN has not, and indeed cannot, establish the compelling interest required to violate these significant rights of privacy of a multitude of persons. 17. Since Sharp HealthCare and response to the administrative subpoena through my letter of November 11, 2015, Dr. DORIN has raised no other objection to Sharp HealthCare and response except the continued demand for the entirety of video captured and retained by Sharp HealthCare and SGH. However, despite our meet and confer efforts, Dr. DORIN continues to assert a right to the entirety of video requested in the subpoena and Sharp HealthCare and SGH continues to assert he is entitled to no such thing. Although counsel for Dr. DORIN and I have met and conferred on the issue on several occasions, we have reached an impasse, necessitating this motion. 18. As documented in e?mails dated December 23, 2015 and March 9, 2016, counsel for Dr. DORIN agreed to waive any time requirement regarding the filing of this motion, as we agree a judge should rule on the merits of this motion. A true and correct copy of these emails are collectively filed as Exhibit C. I declare under penalty of perjury under the laws 0 he State of Cal' or th the foregoing is true and correct and that this declaration was ecuted Car ViceP si 11 an a rp HealthCare day of March, 2016, at San Diego, California ounsel, 6 DECLARATION OF CARLISLE LEWIS, IN SUPPORT OF MOTION EXHIBIT A ADAM F. DORIN, MD. Physician's and Surgeorn's Certi?cate No. G8644O BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS In the Matter of: Agency/Agency Ease NO- 800-2013?000930 A. CAR N0. SUBPOENA: Requesting Testimony SUBPOENA DUCES TECUM: Requesting the Production of Records or Things THE PEOPLE OF THE STATE OF CALIFORNIA SEND GREETINGS TO: (name and address of person being subpoenaed) CARLISLE C. LEWIS 111; Sharp Grossmont Hospital 8695 Spectrum Center Blvd, San Diego, CA 92123 1. At the request of El Petitioner (party name) (name, address and telephone umber of contact person) DUANE A. ADMIRE, ESQ. (858) 350?5566 11512 El Camino Real, Ste 350, San Diego, CA 92130 Respondent ADAM F. DORIN, MD. 2. You are hereby commanded, business and excuses being set aside, to appear as a witness on: -- delete) OAT-I, 2349 Gateway Oaks Drive, Suite 200, Sacramento CA 95 833 El OAH, 1515 Clay Street, Suite 206, Oakland CA 94612 Other: . at?(time) . OAH, 320 West Fourth Street, Room 630, Los Angeles CA 90013 DOAH, 1350 Front Street, Room 3005, San Diego CA 92101 California. El 3. You are not required to appear in person if you produce the records described in the accompanying af?davit and a completed declaration of custodian of records in complianco with Evidence Code sections 1560, 1561, 1562, and 1271. (1) Place a copy of the records in an envelope (or other wrapper). Enclose your original declaration with the records. Seal them. (2) Attach a copy of this subpoena to the envelope or write on the envelope the case name and number, your name and date, time, and place from item 2 (the box above). (3) Place this first envelope in an outer envelope, seal it, and mail it to the Of?ce of Administrative Hearings at the address checked in item 2. (4) Mail a copy of your declaration to the attorney or party shown in item 1. 4. You are not required to appear in person if you produce the records described in the accompanying af?davit and a completed declaration of custodian of records in compliance with Evidence Code section 1561. By 11/13/2015 (date), send the records to: Duane A. Admire, Esq. 11512 El Camino Real, Suite 350, San Diego, CA 92130 NOTE: This manner of production may not satisfy the requirements of Evidence Code section I 5 61 for admission at hearing. El 5. You are ordered to appear in person and to produce the records described in the accompanying af?davit. The personal appearance of the custodian or other quali?ed Witness and the production of the original records is required by this subpoena. The procedure authorized by subdivision of section 1560, and sections 1561 and 1562 of the Evidence Code will not be deemed suf?cient compliance by this subpoena. 6. 7. Disobedience to this subpoena will be punished as contempt of court in the manner prescribed by law. Witness Fees: Upon service of this subpoena,y0u are entitled to witness fees and mileage actually traveled both ways, as provided by law, if you so request. You may request them before your scheduled appearance from the person named in item 1. See Government Code sections 7 1450. 05, 7 1450.50, 68092.5 68093, and 68096. 1-68097. 70. IF YOU HAVE ANY QUESTIONS ABOUT WITNESS FEES OR THE TIME OR DATE YOU ARE TO APPEAR, OR TO BE REQUESTING THIS SUBPOENA, LISTED IN ITEM 1 ABOVE, BEFORE THE DATEWZ ABOVE. (Date Issued) 10/9/2015 (Signature of Authorizing Official) 1W . .43, (Printed Name) r- Duane A. Admire, Esq. Attorney for Respondent (Title) (Rev. 08/10) DECLARATION FOR SUBPOENA DUCES TECUM (Any party issuing a subpoena for production of books and/or records must complete this section.) The undersigned states that the books, papers, documents and/or other things named below and requested by this subpoena are material to the proper presentation of this case, and good cause exists fortheir production by reason of the following facts: 1, Provide all video from all video cameras installed in the Sharp Grossmont Hospital Women?s Health Center Operating Rooms between July 17, 2012 through April 3, 2013'. (such video is referred to in the attached Accusation No. 800?2013-000930 paragraphs 9 10.) 1 2. Provide all notes, minutes, documents, video, photos and other written material relied upon or generated by Sharp Grossmont Hospital investigation into missing drugs ??om anesthesia carts in 2012 2013. (such reports and documents and thereafter investigation is referred to in the attached Acousation No. 800-2013-000930 paragraphs 8, 9 11.) 3. Provide all documents, video, or other written material provided to reviewed or discussed relating to Sharp Grossmont Hospital's Medical Executive Committee meeting on April 9, 2013 and April 10, 2013 relating to ReSpondent DORIN. (such information and documents are referred to in the attached Accusation No. 800?2013?000930 paragraphs 11 12.) i 4. Provide all documents, letters, emails, and/or any correspondence, video or other data in your possession relating to any investigations in which Dr. DORIN, MD. was involved. (some are referred in attached Accusation No. 800-2013?000930 paragraphs 13.) (Use additional pages, if necessary, and attach them to this subpoena.) i Executed Ll 20 [5/3 at f?fbr cards 53 ,California. I declare under/penalty of perjurythat the foregoing istrue and correct. (Signature of Declarant) METHOD OF DELIVERY of this subpoena: Personal Service - In accordance with Code of Civil Procedure sections 1987 and 1988., delivery was effected by showing the original and delivering a true copy thereof personally to: Messenger Servico - In accordance with Government Code section 11450.20, an acknowledgement of the receipt of this subpoena was obtained by the sender after it was delivered by meSSenger to: Certi?ed Mail, Return Receipt Requested I sent a true copy of this subpoena via certi?ed mail, return receipt requested to: (name and address of person) CARLISLE C. LEWIS Sharp Healthcare, Sharp Grossmont Hospital 8695 Spectrum Center Blvd. San Diego, CA 92123 atthehourof (5 g9 In., on ,2015 City of ?g??va ,State of Cali rnia./ (Signature of Declarant) (Rev. 08/10) - REVERSE 1 FILED 2 STATE (kt; CALIFORNIA KAMALA Dr HARRIS. . . ICAL 80:54:18.: 01-? CALIFORNIA Attorney Geneial of California ALEXANDRA M. ALVAREZ [hw- Supervising Deputy Attorney General .. .. ANALYS 4 M. DAVIS Deputy Attorney General 5 State Bar No. 202766 600 West Broadway, Suite 1800 6 San Diego, CA 92101 PO. Box 85266 7 San Diego, CA 921866266 Telephone: (619) 645-2093 8 Facsimile: (619) 6452061 9 Allorneys?ir Complainant 10 BEEOREJZHE 11 MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS 12 STATE OF CALIFORNIA 13 14 In the Matter of the Accusation Against: Case No. 800-2013-000930 A A I 15 ADAM F. DORIN, MJ). 3972 Barranca Parkway, 16 Irivnc, CA 92606 17 Physician?s and Certi?cate No. 686440, 18 Respondent. 1.9 20 Complainant alleges: 21 PARTIES 22 1. Kimberly Kirchmeyer (Complainant) brings this Accusation solely in her official 23 capacity as the Executive Director of the Medical Board of California, Department of Consumer 24 Affairs. 25 2. On or about March 20, 2002 the Medical Board issued Physician?s and Surgeon?s 26 Certi?cate No. (386440 to Adam F. Dorin, MD. (Respondent). The Physician?s and Surgecn?s 27 Certificate was in full Force and effect at all times relevant to the charges brought herein and. will 28 expire on June 30, 2017, unless renewed. 1 JURISDICTION 2 3. This Accusation is brought before the Medical Board of California (Board), 3 Department of Consumer Affairs, under the authority of the following laws. All section 4 references are to the Business and Professions Code (Code) unless otherwise indicated. 5 4. Section 2227 of the Code states: 6 A licensee whose matter has been heard by an administrative law judge 7 of the Medical Quality Hearing Panel as designated in Section 11371 of the 8 Government Code, or whose default has been entered, and who is found guilty, or 9 who has entered into a stipulation for disciplinary action with the board, may, in 10 accordance with the provisions of this chapter: 11 Have his or her license revoked upon order of the board. 12 Have his or her right to practice suspended for a period not to exceed one 13 year upon order of the board. 14 Be placed on probation and be required to pay the costs of probation 15 monitoring upon order of the board. 16 Be publicly reprimanded by the board. The public reprimand may 17 include a requirement that the licensee complete relevant educational courses 13 approved by the board. 19 Have any other action taken in relation to discipline as part of an order of 20 probation, as the boarder an administrative law judge may deem proper. 21 Any matter heard pursuant to subdivision except for warning letters, 22 medical review or advisory conferences, professional competency examinations, 23 continuing education activities, and cost reimbursement associated therewith that 24 are agreed to with the board and successfully completed by the licensee, or other 25 matters made con?dential or privileged by existing law, is deemed public, and 26 shall be made available to the public by the board pursuant to Section 803.1.? 27 28 1 5. Section 2234 of the Code, states: 2 ?The board shall take action against any licensee who is charged with 3 unprofessional conduct. In addition to other provisions of this article, 4 unprofessional conduct includes, but is not limited to, the following: 5 6 The commission of any not involving dishonesty or corruption 7 that is substantially related to the qualifications, functions, or duties ol?a physician 8 and surgeon. 9 - 10 6. Unprofessional conduct under Code section 2234 is conduct which breaches the rules 11 or ethical code of the medicalmrot?ession?r Conduct which is unbecoming a member in good 12 standing of the medical profession, and which demonstrates an un?tness to practice medicine. 13 (Shea v. Board of Medical Examiners (1978) 81 Cai.App.3d 564, S75.) 14 FIRST CAUSE FOR DISCIPLINE 15 (Dishonest and Corrupt Acts) 16 7. Respondent has subjected his Physician?s and Surgeon?s Certi?cate No. (386440 to 17 disciplinary action under sections 2227 and 2234, as de?ned by section 2234, subdivision of 18 the Code, in that he committed dishonest and corrupt acts as more particularly alleged hereinafter: 19 Sharp Grossmont Hospital 20 8. On or about May 10, 2012, a report was made to Sharp Grossmont Hospital (SGH) 21 security regarding missing drugs from anesthesia carts in the Women?s Health Center Operating 22 Rooms at 3011. 23 9. On or about July 17 2012, video cameras were installed in the 24 Women?s Health Center Operating Rooms as part of an investigation into the missing drugs. 25 10. Between on or about September 14, 2012, through on or about April 3, 2013, 26 respondent was observed on camera, on multiple occasions, entering one or more of the operating 27 rooms located inside the SGH Women?s l-Iealth Center and removing items from the drug carts, 23 including propofol, and placing the items into his shirt pocket. sows-.ICAm-P-wroH 11. On or about April 4, 2013, respondent was interviewed as part of the investigation. Reapondent denied taking propofol from anesthesia carts. When later confronted with video evidence to the contrary, respondent admitted removing items from the drug carts, including propofol, and placing the items into his shirt pocket. 12. On or about April 9, 2013, Medical Executive Committee (MEC) was provided information that respondent was seen removing medications, including propofol, from anesthesia carts. The MEC summarily suspended respondent?s staff privileges. 13. On or about April 10., 2013. the MEC lifted the suspension of respondent?s privileges and elected to have the Medical Staff Leadership further investigate the allegations against respondent. Respondent resigned his privileges at during the pendency of that investigation. Fraudulent Emails 7 14. On or about July 9, 2012, respondent sent a false and fraudulent email from his employer email service to the employer of RB. under the ?ctitious name ?Jack Lew,? that falsely alleged KB. had a police record and a history ot?altercations with the law. Respondent sent the email in order for his then girlfriend and soon to be ex-wife to gain an advantage in her divorce proceedings with R13. 15. On or about July 17, 2012, respondent sent a false and fraudulent email from an email service through the Delrey Apartment Homes in Irvine California to the employer of RB. and the State Bar of California under the fictitious name 'Katc' Saftine,? that falsely alleged that RB. engaged in unethical legal and business practices and withheld money from a client. Respondent sent the email in order for his then girlfriend and soon to be exuwife to gain an advantage in her divorce proceedings with RB. SECOND CAUSE FOR DISCIPLINE (General Unprofessional Conduct) 16. Respondent has further subjected his Physician?s and Surgeon?s Certificate No. 686440 to disciplinary action under section sections 2227 and 2234, as defined by section 2234, of the Code, in that he has engaged in conduct which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming to a member in good standing of the medical A 1 profession, and which demonstrates an unfitness to practice medicine, as more particularly 2 alleged hereinafter: 3 l7. Paragraphs 8 through 15 above, are hereby incorporated by reference and re-alleged 4 as if fully set forth herein. 1 5 PRAYER 6 WHEREFOIUB, Complainant requests that a hearing be held on the matters herein alleged, 7 and that following the hearing, the Medical Board issue a decision: I 8 1. Revoking or suspending Physician?s and Surgeon?s Certi?cate No. 686440, issued to 9 respondent Adam F. Dorin, 10 2. Revoking, suspending or denying approval of respondent Adam F. Dorin, 11 authority to supervise physician assistants, pursuant to section 3527 of the Code; 12 3. Ordering respondent Adam F. Dorin, M.D., if placed on probation, to pay the Board 13 the costs of probation monitoring; and 14 4. aking such other and further action as deemed necessary and proper. 16 DATED: September 10, 2015 I KIMBERLY CHMEYER 17 [executive tor a. Medical Board of California 18 State of California 1 9 Complainmrt EXHIBIT Malcolm Baldrige National uality Agard 2007 Award Recipient Carlisle C. Lewis, [11, Esq. Senior Vice President and General Counsel Telephone: (858) 499-3026 Facsimile: (858) 499-4065 November 11,2015 Duane A. Admire, Esq. 1 1512 El Camino Real, Suite 350 San Diego, CA 92130 Re: Adam Dorin, MD - Subponea Dueces Tecum Dear Mr. Admire: Accompanying this letter are documents responsive to the October 9, 2015 Subpoena Duces Tecum issued by your of?ce to Sharp Grossmont Hospital in connection with the Medical Board of California?s accusation concerning your client, Dr. Adam Dorin. Sharp Grossmont Hospital has not produced certain documents which may be construed to be responsive to the Subpoena. Documents not produced include those covered by the attorney/client privilege, attorney-work product privilege, as well as documents that contain protected health information. We have produced the video relating to Dr. Dorin that was presented to Sharp Grossmont Hospital?s executive committee, the joint committee of the Board of Directors and the Medical Executive Committee, as well as the Board of Directors. We will not produce all the video that was retained during the investigation as it may contain protected health information and was not part of the information presented to the Medical Executive Committee, the joint committee or the Board of Directors. We will be invoicing you for the cost of the copies and the ?ash drive containing the video information. Pleas feel free to Enclosures SHARP ORGANIZATIONS Sharp HealthCare Sharp Memorial Hospital Grossmont Hospital Corporation Sharp Chula Vista Medical Center Sharp Coronado Hospital and Healthcare Center Sharp Mesa Vista Hospital Sharp Mary Birch Hospital For Women and Newborns Sharp McDonald Center Sharp Rees-Stealy Medical Centers Sharp Health Plan Sharp HealthCare Foundation Grossmont Hospital Foundation 8695 Spectrum Center Boulevard San Diego, California 92123?1489 EXHIBIT From: Duane Admire [mailto:duaneadmire@outlook.com] Sent: Wednesday, March 09, 2016 11:28 AM To: Ky Lewis Subject: Fw: Protective Order for Subpoena re Adam Dorin Ky: Just to be clear, the Respondent Dr. Adam Dorin has agreed to waive any time requirements Sharp may have been under to bring a protective order in relation the the subpoena served by Dr. Dorin on Sharp; as we had originoally agreed to resolve the issue by having Sharp file a motion for a protective order with the OAH. Also, it looks as if my original email to you about this was sent to you with an incorrect email address. Should you or anybody working on this matter need any further information etc., to file your protective order, please don't hesitate to email or call. Thanks, Duane Admire (619) 316-6658 ________________________________________ From: Duane Admire Sent: Wednesday, December 23, 2015 12:43 PM To: kylewis@sharo.com Subject: Protective Order for Subpoena re Adam Dorin Dear Ky: I wanted to get back to you on your intentions to file for a protective order relating to the Subpoena we served on Sharp relating to Adam Dorin. Since you have chosen to bring a motion for a protective order, a meet and confer does not seem to be necessary by our office. Additionally, we now have an Office of Administrative Hearings (OAH) case number for you to use to file your motion. In fact, I am going to simply attach a case cover sheet we received from the OAH that gives the name of the case, the case number and address so your office can bring the protective order on behalf of Sharp. There is no particular time rush on this matter, as the hearing is set in the fall of 2016, but if your unable to file your protective order within the next 30 days, we will then bring a motion to compel--unless we have other agreements in place. Should you have any questions, please don't hesitate to call. Thanks, Duane Admire (619) 316-6658 cell 1 2 3 4 5 6 7 8 BEFORE THE 9 MEDICAL BOARD OF CALIFORNIA 10 DEPARTMENT OF CONSUMER AFFAIRS 11 STATE OF CALIFORNIA 12 13 Case No. 800-2013-000930 OAH NO.: 2015120747 In the Matter of the Accusation Against [PROPOSED] ORDER GRANTING MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 14 15 ADAM F. DORIN, M.D. [GOV. CODE §§11507.5 AND 11507.6; CIVIL CODE § 56 ET SEQ.; CODE OF CIVIL PROCEDURE §§2031.060 AND 2017.020(A); 45 C.F.R. §165.512;§1026] 16 17 Physician’s & Surgeon’s Certificate No. G86440, 18 Respondent. Hearing Date: 19 20 Oct. 17-21, 2016 Having considered the briefs filed in support of, and in opposition to the Motion To Quash 21 and/or for Protective Order filed by non-parties Sharp Healthcare and Sharp Grossmont Hospital, 22 as well as the evidence submitted, the Court GRANTS the Motion to Quash as it determines that 23 the subpoena impermissibly seeks prehearing discovery from non-party witnesses. 24 In addition, the request for “all video from all video cameras installed in the Sharp 25 Grossmont Hospital Women’s Health Center operating rooms between July 17, 2012 through April 26 3, 2013,” shall not be renewed at the time of hearing, as it is overbroad, seeks information that 27 unreasonably invades the right of privacy of third parties, and is irrelevant to the issues involved in 28 this proceeding. ORDER GRANTING MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 1 THEREFORE, IT IS HEREBY ORDERED that the motion filed by non-parties Sharp 2 Healthcare and Sharp Grossmont Hospital is granted and service of the subpoena served by 3 Respondent ADAM F. DORIN, M.D. is quashed, and protective order is issued to preclude 4 production in this proceeding. 5 IT IS SO ORDERED. 6 7 8 DATED: ____________, 2016 ________________________________________ PRESIDING ADMINISTRATIVE LAW JUDGE OFFICE OF ADMINISTRATIVE HEARINGS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROPOSED ORDER (2015120747) 1 2 3 4 5 6 7 Richard D. Barton (Bar No. 102613) E-mail: rick.barton@procopio.com Shelley A. Carder (Bar No. 137755) E-mail: shelley.carder@procopio.com Natalie V. Mueller (Bar No. 292714) E-mail: natalie.mueller@procopio.com PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 12544 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: 858.720.6300 Facsimile: 619.235.0398 Attorneys for Non-Parties: SHARP HEALTHCARE & SHARP GROSSMONT HOSPITAL 8 BEFORE THE 9 MEDICAL BOARD OF CALIFORNIA 10 DEPARTMENT OF CONSUMER AFFAIRS 11 STATE OF CALIFORNIA 12 In the Matter of the Accusation Against: Case No.: 800-2013-000930 ADAM F. DORIN, M.D. OAH No.: 2015120747 Physician’s & Surgeon’s Certificate No. G86440, PROOF OF SERVICE 13 14 15 16 17 Respondent. Date: 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (2015120747) Oct. 17-21, 2016 1 I am a resident of the State of California, over the age of eighteen years, and not a party to 2 the within action. My business address is PROCOPIO, CORY, HARGREAVES & SAVITCH 3 LLP, 12544 High Bluff Drive, Suite 300, San Diego, California 92130. On March 29, 2016, I 4 served the within document(s): 5 • 6 • 7 • DECLARATION OF CARLISLE LEWIS, III IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER • [PROPOSED] ORDER GRANTING MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 8 9 NON-PARTIES’ NOTICE OF MOTION AND MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER NON-PARTIES’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER 10 11 12 13 14 15 16 17 18 19 20 21 BY ELECTRONIC SERVICE [Code Civ. Proc. §1010.6] by electronically mailing the document(s) listed above to the e-mail address(es) set forth below, or as stated on the attached service list per agreement in accordance with Code of Civil Procedure Section 1010.6. BY PERSONAL SERVICE [Code Civ. Proc. §1011] by causing personal service of the document(s) listed above to the person(s) at the address(es) set forth below. Attorney for Complainant Kamala D. Harris, Attorney General of California Alexandra M. Alvarez, Supervising Deputy Attorney General Matthew M. Davis, Deputy Attorney General 600 West Broadway, Suite 1800 San Diego, CA 92101 Tel. (619) 645.2093 Email: Matthew.Davis@doj.ca.gov Attorney for Respondent Duane A. Admire, Esq. 11512 El Camino Real, Suite 350 San Diego, CA 92130 Tel. (858) 350.5566 Email: duaneadmire@outlook.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 29, 2016, at San Diego, California. 22 23 R. Marina Collins 24 25 26 27 28 2 PROOF OF SERVICE (2015120747)