ARNETT v. DAL CIELO (1995)

In these consolidated proceedings, we consider efforts of the Medical Board of California (hereafter the Board) to obtain by administrative subpoenas, records of one of its licentiates who has had a problem with addictive drugs.

FACTS—PROCEDURAL HISTORY

In 1992, the Board commenced an investigation of Dr. A., an anesthesiologist with staff privileges at Alameda Hospital (hereafter Hospital), upon receiving confidential information alleging that Dr. A. was addicted to narcotic drugs and had administered anesthesia to surgery patients while under the influence of controlled substances.

The Board's investigator interviewed the Medical Staff Coordinator and the President of the Medical Staff at the Hospital and learned that Dr. A. had appeared before the Hospital's Medical Executive Committee and admitted his drug use.   Dr. A. had requested and was granted a leave of absence during October and November of 1992 to enter a drug treatment program.   The Hospital provided the Board's investigator with a copy of a contract signed on January 28, 1993, in which Dr. A. agreed to a monitoring program by the Hospital.   Dr. A. refused to sign a release of his drug treatment records or submit voluntarily to a psychiatric and physical examination.   The investigator submitted the case to an addictionologist, Dr. William Brostoff.   In December 1993, Dr. Brostoff reported that, despite Dr. A.'s apparently successful completion of a chemical dependency treatment program, he could not determine Dr. A.'s current impairment and competency.   Dr. Brostoff “strongly recommend [ed that] an administrative medical psychiatric evaluation of Dr. A. be carried out.”

The Board did not take steps pursuant to Business and Professions Code section 820 to require that Dr. A. submit to an examination.   Rather, in February of 1994, the Board issued investigational subpoenas duces tecum to Peter Budlong, Director of Admissions and Outreach of New Bridge Foundation and to Vera Wright, Custodian of Medical Records at Merritt–Peralta Institute commanding these officials to appear before the Board investigator to testify and answer questions in connection with the investigation of Dr. A. and to produce “any and all documentation relating to counselling and/or treatment” of Dr. A. for abuse of alcohol and/or controlled substances.

Unsuccessful in obtaining compliance with subpoenas to these treatment programs, the Board, on April 5, 1994, issued an investigational subpoena duces tecum to William J. Dal Cielo, Chief Executive Officer of the Hospital, requesting production of documents and records at the Hospital pertinent to Dr. A. and his drug problem.   The Hospital refused to comply on several grounds.   For one thing, the hospital contended that, given the information the Board already had from the Hospital, the declaration submitted in support of the subpoena failed to establish good cause for disclosure of the records.   In addition, the hospital claimed that all the records sought by the Board are privileged under Evidence Code section 1157 (hereafter section 1157) as peer review and credentialing files.

Dixon Arnett, Executive Director of the Board, represented by the Attorney General, filed a petition in the Alameda County Superior Court for an order compelling the Hospital to produce the documents.   On June 15, 1994, the court issued an order compelling compliance.   The Hospital appealed this decision and in July of 1994, this court stayed the order pending appeal.

On August 26, 1994, the Board petitioned the Alameda Superior Court for an order compelling New Bridge Foundation and Merritt–Peralta Institute to comply with the subpoenas directed to officials of those organizations.   On September 16, 1994, the court granted the motion to compel.   New Bridge Foundation, Merritt–Peralta Institute and Dr. A. have each challenged this order by petitions for extraordinary relief.

The three petitions and the appeal raise different issues on the merits and involve different statutes.   However, all raise issues regarding administrative subpoenas for medical records of Dr. A. and involve the question of how appellate review of orders compelling compliance with administrative subpoenas should be initiated.   Thus we consider them in this consolidated proceeding.

APPELLATE REVIEW

 If a party subpoenaed by an administrative agency refuses to comply, the agency may petition the superior court under Government Code section 11187 for an order compelling compliance because administrative agencies do not have the authority to enforce their subpoenas.  (People v. Pappalardo (1993) 12 Cal.App.4th 1723, 1730, 16 Cal.Rptr.2d 512.)   Although we recognize there is a split of authority on the question, we conclude that the ensuing order is appealable as a final decision in a special proceeding.   That was recently described as “the better view” by the court in Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485, 18 Cal.Rptr.2d 198, citing in support the case of Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1140, 212 Cal.Rptr. 811.   The Millan court also found support in Knoll v. Davidson (1974) 12 Cal.3d 335, 343, 116 Cal.Rptr. 97, 525 P.2d 1273, where the Supreme Court stated that “unless the statute creating the special proceeding prohibits an appeal, there is an appeal from a final judgment entered in a special proceeding.”

The Millan court recognized that there are cases holding that “orders compelling compliance with a subpoena must be reviewed by writ” citing Franchise Tax Board v. Barnhart (1980) 105 Cal.App.3d 274, 277, 164 Cal.Rptr. 331, a case decided by this court.   That case, however, should not be read as broadly holding that any order granting or denying compliance with a subpoena is not appealable.   Rather this court recognized that “[a]n order made under the authority of ․ sections 11186–11188 requiring individual compliance with an administrative subpoena can be viewed as a final judgment in a special proceeding, appealable unless the statute creating the special proceeding prohibits such appeal.”  (Ibid.)  The court went on to point out that the subpoena in the case before it had been issued pursuant to the Political Reform Act which it was required to construe so as to accomplish the Act's purpose of vigorous enforcement.   The court then concluded that a liberal construction required review not by appeal but by the more speedy writ remedy and treated the proceeding as one for a writ of prohibition.

The other case cited by Millan as holding that an order under section 11187 is not appealable is Barnes v. Molino (1980) 103 Cal.App.3d 46, 51, 162 Cal.Rptr. 786.   There the court reasoned:  “An order made under section 11188 is not one of the orders listed as appealable in Code of Civil Procedure section 904.1.   It is not a judgment within the definition of Code of Civil Procedure section 577 (‘A judgment is the final determination of the rights of parties in an action or proceeding’) because it does not make a final determination of those rights [citation].”

 We conclude in agreement with the Millan court that the better view is that the order is appealable.¹  It is, in fact, the final determination of the rights of the parties in the proceeding to require compliance with the administrative subpoena.   That proceeding itself may also be the only action or proceeding involving the Board and the doctor because the Board is merely conducting an investigation.   The Board may well take no further action.

DISCOVERY OF TREATMENT RECORDS

Dr. A.'s treatment records which the Board has subpoenaed from the Merritt–Peralta Institute (hereafter Merritt–Peralta) and from the New Bridge Foundation (hereafter New Bridge) are protected from disclosure by both federal and state statutes.  (42 U.S.C. § 290ee–3;  Health & Saf.Code, § 11977.)

a. The federal statute

42 U.S.C. section 290ee–3 and the accompanying regulations promulgated in 42 C.F.R. part 2 address the confidentiality of alcohol and drug abuse treatment records.²  42 U.S.C. section 290ee–3 subdivision (a) provides with exceptions not relevant here:  “Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall ․ be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.”   The relevant portion of subsection (b) provides for disclosure “[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor.   In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.   Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.”  (42 U.S.C. § 290ee–3(b)(2)(C).)

To emphasize the legislative intent of the statute, New Bridge quotes from House Report No. 92–775, U.S.Code Cong. & Admin.News 1972, p. 2045, at page 2072 as follows:  “The conferees wish to stress their conviction that the strictest adherence to the provisions of this section is absolutely essential to the success of all drug abuse prevention programs.   Every patient and former patient must be assured that his right to privacy will be protected.   Without that assurance, fear of public disclosure of drug abuse or of records that will attach for life will discourage thousands from seeking the treatment they must have if this tragic national problem is to be overcome.   [¶] Every person having control over or access to patients' records must understand that disclosure is permitted only under the circumstances and conditions set forth in this section.   Records are not to be made available to investigators for the purpose of law enforcement or for any other private or public purpose or in any manner not specified in this section.”

New Bridge further calls attention to the following statement in the regulations:  “These regulations ․ are intended to insure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.”  (42 C.F.R. § 2.3(b)(2).)

To show the good cause required for disclosure under the federal statute, the Board contended that the records were necessary “in order to ascertain whether or not the anesthesiologist in question can continue to practice medicine safely and whether the public is endangered by his continued practice.”   In response petitioners contended below, as they do here, that good cause does not exist for the disclosure of records two years after treatment has been completed when the Board has the authority to require Dr. A. to submit to an examination which will be more relevant to his current ability to practice.

Business and Professions Code section 820 (hereafter section 820) provides:  “Whenever it appears that any person holding a license, certificate or permit under this division or under any initiative act referred to in this division may be unable to practice his or her profession safely because the licentiate's ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency․”

 At the hearing on the motion to compel, Dr. A.'s attorney pointed out to the court that the Board had taken the position that it needed the treatment records to determine whether it had sufficient evidence to compel an examination under section 820.   Dr. A.'s attorney then stipulated that Dr. A. would agree to undergo such an examination.   The Board's response was that the treatment records were necessary “in order to have a psychiatric evaluation that is of any use.”

This statement is not supported by the Board's showing of good cause.   Dr. Brostoff's recommendation was for a medical psychiatric evaluation of Dr. A.   The Board has never taken steps to obtain such an examination as it had a right to do under section 820 and now, given the stipulation of Dr. A., the Board may obtain such an examination without taking that step.   If, after the examination is completed, the Board continues to believe the treatment records are necessary for an evaluation, it may again attempt to secure the documents through a showing of good cause unless, as discussed below, state law requires a different procedure and a more stringent showing.

b. The state statute

Merritt–Peralta contends that a showing of good cause pursuant to the federal regulations will not suffice to compel discovery of treatment records because the more stringent requirements of state law apply.   The federal regulations that implement the federal statute state:  “The statutes authorizing these regulations (42 U.S.C. § 290ee–3 and 42 U.S.C. § 290dd–3) do not preempt the field of law which they cover to the exclusion of all State laws in that field.   If a disclosure permitted under these regulations is prohibited under State law, neither these regulations nor the authorizing statutes may be construed to authorize any violation of that State law.   However, no State law may either authorize or compel any disclosure prohibited by these regulations.”

Merritt–Peralta contends that the disclosure the Board seeks is prohibited by section 11977 of the Health and Safety Code (hereafter “section 11977”) which applies to “records ․ maintained in connection with the performance of any drug abuse treatment․”  Subdivision (a) provides that the records “shall, except as provided in subdivision (c), be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subdivision (b).”  (Emphasis added.)   Subdivision (b) permits the content of such records to be disclosed with the “prior written consent of the client with respect to whom the record is maintained,” in accordance with the release of information that the client signs.   Subdivision (c), specifies five exceptions to this only-by-consent disclosure.   Only the fifth exception is relevant here.   It states that records may be disclosed:  “(5) If authorized by a court of competent jurisdiction granted after application showing probable cause therefor, as provided in subdivision (c) of Section 1524 of the Penal Code.”   Subdivision (d) provides:  “Except as authorized by a court order granted under paragraph (5) of subdivision (c), no record referred to in subdivision (a) may be used to initiate or substantiate any criminal charges against a client or to conduct any investigation of a client.”  (Emphasis added.)   Subdivision (e) provides:  “The prohibitions of this section shall continue to apply to records concerning any individual who has been a client, irrespective of whether he or she ceases to be a client.”

 The court authorization “as provided in subdivision (c) of Section 1524” occurs in the following circumstance and pursuant to the following procedure:  When a search warrant issues for documentary evidence in the possession of specified professionals who are not themselves suspected of engaging in criminal activity, the court appoints a special master at the time the warrant issues.   That special master conducts the search and seals any items which the party searched contends should not be disclosed.   The master then takes the items to the court for a hearing within three days or at the earliest possible time.

The Board suggests that a reasonable and commonsense interpretation of section 11977(c)(5) would be that drug treatment records may be authorized by a court of competent jurisdiction granted after an application showing “sufficient cause” and employing the special master procedures described in Penal Code section 1524(c) whenever the records are sought by a search warrant seeking documentary evidence in the possession of a lawyer, physician, psychotherapist or clergyman.   We first note that this interpretation would make subdivision (c)(5) superfluous since Penal Code section 1524 already requires such procedures when documentary evidence in the possession of these professionals is sought by a search warrant.

Furthermore, the legislative history of section 11977 does not support the Board's interpretation.   The current version of section 11977 was enacted in 1988 by Assembly Bill No. 1513 (1988 Reg.Sess.).  (Stats. 1988, ch. 139, § 10, p. 538.)   That bill repealed the 1978 version of section 11977, which, in subdivision (c) and in terms identical to federal law, permitted the disclosure of drug treatment records upon a showing of “good cause” to a court of competent jurisdiction, where the court would weigh “the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services program.”  (Former Health & Saf.Code § 11977, added by Stats. 1978, ch. 380, § 84, repealed by Stats. 1988, ch. 139, § 9.)   The Legislative Counsel's Digest to the 1988 statute explains in relevant part:

“Under existing law, one of the other circumstances under which information or records may be disclosed is where authorized by appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, with specified factors to be considered when determining the existence of good cause.   This bill would, instead, require probable cause for granting the court order and would require that probable cause be determined in accordance with specified provisions.”  (Leg. Counsel's Digest to Assem. Bill No. 1513 (1988 Reg.Sess.).)

 It is reasonable to presume that the Legislature enacted the present version of section 11977 with the intent and meaning expressed in the Legislative Counsel's Digest.  (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17, 270 Cal.Rptr. 796, 793 P.2d 2;  Franklin v. Appel (1992) 8 Cal.App.4th 875, 890, 10 Cal.Rptr.2d 759;  People v. Tamble (1992) 5 Cal.App.4th 815, 821, 7 Cal.Rptr.2d 446.)

 In view of this opinion of the Legislative Counsel and the absence of any indication that the Legislature had another meaning in mind, we reject the Board's contention that the Legislature intended that “probable cause” in the newly enacted statute should bear the same meaning as “good cause” in the repealed version or that the Legislature did not intend that the procedures specified in the statute should apply if the Board sought the drug treatment records.

 Respondent court in the case at hand attempted to apply section 11977 by finding “that the declarations submitted in support of the subpoena amply establish probable cause to believe that the physician whose records are sought to be examined violated Business and Professions Code sections 2238, 2239 and 2240, among others.”   These provisions declare that specified conduct involving drugs constitutes unprofessional conduct.³  The record does indeed show probable cause to believe that Dr. A. was guilty of this unprofessional conduct at least prior to the time he entered the drug treatment programs.   However, the Board did not seek Dr. A.'s drug treatment records in order to discipline him for that conduct but in order to investigate any present impairment and his competence to practice his profession.   If the Board again seeks Dr. A.'s drug treatment records, it must show probable cause related to the purpose for which it seeks the records and must show compliance with the procedures of Penal Code section 1524 subdivision (c).   Because the records are sought by investigational subpoena rather than by search warrant, we recognize that in that sense there can be no literal compliance with Penal Code section 1524.   Nevertheless, all the other requirements can be met:  appointment of a special master, search by master in attendance, hearing within three days of search, determination of any privilege claims, and testing the reasonableness of subpoena against the Penal Code section 1538.5 criteria, including the presence of probable cause.

DISCOVERY OF PEER REVIEW RECORDS

In Kenney v. Superior Court (1967) 255 Cal.App.2d 106, 63 Cal.Rptr. 84, a plaintiff suing a doctor for malpractice sought the doctor's records from the hospital where he had staff privileges.   The hospital resisted a subpoena duces tecum and the trial court granted the discovery request insofar as the plaintiff sought records of disciplinary proceedings or the status of the doctor on the hospital staff.   The appellate court sustained this decision.

In response to this decision, the Legislature in 1968 enacted Evidence Code section 1157 (hereafter section 1157).   The section provides that “[n]either the proceedings nor the records ․ of a peer review body, as defined in Section 805 of the Business and Professions Code ․ shall be subject to discovery.”   The section “evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.”  (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 629, 115 Cal.Rptr. 317.)

 Appellant hospital contends that the term “discovery” includes administrative subpoenas whereas the Board contends that when the Legislature used the term it meant “pre-trial discovery in adversary proceedings.”   In its largest sense, the term “discovery” can refer to an administrative agency's investigative function (see Oklahoma Press Pub. Co. v. Walling (1946) 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614) as it can apply to disclosure at trial (see American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 589, 113 Cal.Rptr. 561).   Yet, we must recognize that as commonly used in its legal sense, the term is limited as the Board suggests.   (See e.g. Code Civ.Proc., § 2016 et seq., the Civil Discovery Act of 1986;  Gov.Code, §§ 11507.5 and 11507.6, the “exclusive right to and method of discovery” in administrative proceedings.)

When the language of a statute is susceptible of more than one reasonable interpretation, “we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.”  (Bradshaw v. City of Los Angeles (1990) 221 Cal.App.3d 908, 915, 270 Cal.Rptr. 711.)   Because the language of section 1157 provides no definitive answer, we look to these aids.

The court in People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363, 286 Cal.Rptr. 478 (hereafter Memorial ) was confronted with a similar interpretive task.   In Memorial, the issue was whether section 1157 protected peer review records from disclosure in a criminal case.   The court joined the many other courts that concluded “it is reasonable to believe section 1157 was enacted as a remedy to situations similar to that found in Kenney;  malpractice actions in which the records of hospital peer review committees or staff committees are sought.   The fact the portion of section 1157 relating to ‘discovery’ was never amended while in committee, combined with the speed of the bill's passage, leads to the implication the Legislature knew exactly what was meant by the term, and considered it obvious enough not to warrant discussion.   This implication was not lost on the Matchett court, which found ‘[t]he statute, then, is aimed directly at malpractice actions in which a present or former hospital staff doctor is a defendant.’  [Citation.]”  (Id. at pp. 376–377, 286 Cal.Rptr. 478, italics added by Memorial Medical Center.)

The Memorial court was unwilling to conclude that the Legislature intended to protect peer review records from all “discovery” methods given the differing policy considerations involved.  “In balancing a plaintiff's concern in obtaining access to peer review committee records versus the public interest in a high-quality health care system, the Legislature drew a distinction between the rights of the individual, and the rights of the many.   The confidentiality bestowed by section 1157, then, has its price:  it denies a plaintiff access to information which could prevent her from recovering in a case against a physician.   Yet it is clearly the judgment of the Legislature that this price is worth paying in order to protect the prospective health of the public as a whole.”  (234 Cal.App.3d at p. 373, 286 Cal.Rptr. 478.)   The court went on to point out that the case before it presented a weighing of different interests than those it had described.  “For here we are essentially asked to determine whether in enacting section 1157 the Legislature also intended to balance the same concern in public safety and health against itself.”  (Id. at p. 374, 286 Cal.Rptr. 478.)

 The present case presents this same factor, even more strikingly.   The Board has been charged with the responsibility to protect consumers of medical services in California.  (Bus. & Prof.Code, § 2001 et seq.)   The Division of Medical Quality of the Board is responsible for reviewing the quality of medical practice carried out by physicians and surgeons, the enforcement of the disciplinary and criminal provisions of the Medical Practice Act, and the administration and hearing of disciplinary actions.  (Bus. & Prof.Code, § 2004.)   The Legislature has recently emphasized that “protection of the public” is the highest priority of the Division of Medical Quality.  (Bus. & Prof.Code, § 2229.)   The underlying purpose of the peer review system is also to promote an elevated standard of patient care through investigation of the competence and performance of physicians.  (See Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1224, 23 Cal.Rptr.2d 397, 859 P.2d 96;  California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1482, 264 Cal.Rptr. 83.)   Thus, there is not the distinction between public and private purpose in the functions of the hospital's peer review process and the Board's investigative process that exists between the civil litigant and the hospital.   If the Legislature intended to preclude the Board from obtaining peer review records, it would, in the words of the Memorial court, be balancing its “concern in public safety and health against itself.”  (234 Cal.App.3d at p. 374, 286 Cal.Rptr. 478.)

The Hospital finds indications of legislative intent to apply section 1157 to the Board's administrative subpoenas (1) in the fact that section 1157 does not contain an exception for administrative subpoenas;  (2) in the failure of the Legislature to amend section 1157 to provide for such an exception and (3) in the fact that the Legislature did not provide access to the entire peer review file in Business and Professions Code section 805.1.   As explained below, we do not find these factors persuasive.

 Exceptions in Evidence Code section 1157.  Section 1157 itself contains several exceptions to its protection for peer review files.⁴  The Hospital asks this court to apply the rule of statutory construction that “where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.  [Citations.]”  (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537.)   This rule, however, cannot apply unless there is agreement on what is the “general rule.”   That is what is in issue here, i.e., whether the Legislature used the term “discovery” in its largest sense to include all discovery or used it in its limited sense to mean “pre-trial discovery in adversary proceedings.”

As explained above, we find a strong indication from the situation to which the Legislature was responding when it enacted Evidence Code section 1157 that the Legislature did not have in mind the all-encompassing meaning of the term “discovery.”   We also find support for this conclusion in the reasoning and conclusion of the Memorial court in its rejection of the argument that in its enactment of section 1157, the Legislature intended to protect peer review records from search warrants.⁵

Failure to amend Evidence Code section 1157.   In 1993, Senate Bill 916 proposed a number of changes to the system for disciplining health care professionals.   The bill initially contained an amendment of section 1157 which would have provided that:  “Nothing in this section shall be construed to prevent the discovery of evidence relevant to a disciplinary proceeding or investigation against a licensee by the applicable licensing board.”   The Hospital argues that the failure of the Legislature to enact this provision is indicative of Legislative intent citing Crespin v. Kizer (1990) 226 Cal.App.3d 498, 514, 276 Cal.Rptr. 571, for the principle that “ ‘ “[t]he rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.” ’ ”

 However, as the Board points out, the rejection of amendments to an existing statute, in contrast to rejection of provisions when the statute is originally introduced, is of “relatively little value” in examining legislative intent.  (Sav–On Drugs, Inc. v. County of Orange (1987) 190 Cal.App.3d 1611, 1623, 236 Cal.Rptr. 100.)   That is a particularly apt observation here in view of the fact that, as amicus curiae Center for Public Interest Law demonstrates, the amendment to section 1157 was removed from the bill prior to any consideration by a legislative committee.

 Existence of Business and Professions Code section 805.1.   Evidence Code section 1157 applies to records “of a peer review body, as defined in Section 805 of the Business and Professions Code ․” (§ 1157, subd. (a).)  Business and Professions Code section 805 sets forth the reporting requirements of peer review bodies.   Whenever specified disciplinary actions are taken as a result of a determination of a peer review body, the administrator of any health care facility is required to make an “805 report” to the “relevant agency”—in this case to the Board.  (Subd. (b).)   If a disciplinary action results in action by the Board, the Board is entitled by section 805.1 to inspect and copy the following documents:  “(1) Any statement of charges.  (2) Any document, medical chart, or exhibits in evidence.  (3) Any opinion, findings, or conclusions.”

The Hospital argues that because the Legislature has provided in Business and Professions Code section 805.1 for only a limited disclosure of peer review documents when the Board takes disciplinary action against a licentiate, the Legislature did not intend a broader disclosure when the Board is merely investigating the licentiate.   In a related point, the Hospital contends that once the Board files an accusation after an investigation, the obtaining of information by a party to the proceeding is unquestionably “discovery,” citing provisions governing discovery in administrative adjudication.  (Gov.Code, §§ 11507.5, 11507.6.)   The Hospital argues that there is no logic behind such a difference in the protections afforded to peer review records.   We cannot agree.

An “805 report” provides the Board with information which the Legislature might well consider obviates the need to look at the peer review records themselves.   When the administrator of a health care facility decides not to take disciplinary action or fails to file a required report to the Board, the Board must pursue its investigatory responsibilities without this information.   It has, therefore, a greater need to see the peer review materials themselves for what information they may provide on the competency of the licentiate.

A central point of the Hospital's argument as well as that of the Union of American Physicians and Dentists which has filed an amicus curiae brief in support of the Hospital is that the legislative purpose of Evidence Code section 1157 to promote effective medical peer review would be frustrated by enforcing the Board's subpoena.  “When medical staff committees bear delegated responsibility for the competence of staff practitioners, the quality of in-hospital medical care depends heavily upon the committee members' frankness in evaluating their associates' medical skills and their objectivity in regulating staff privileges․  Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.”  (Matchett v. Superior Court, supra, 40 Cal.App.3d 623, 628–629, 115 Cal.Rptr. 317, fn. omitted;  accord Alexander v. Superior Court, supra, 5 Cal.4th at pp. 1218–1227, 23 Cal.Rptr.2d 397, 859 P.2d 96;  West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 852–854, 226 Cal.Rptr. 132, 718 P.2d 119.)

 The trial court in this case as well as the concurring justice in Memorial, 234 Cal.App.3d at p. 363, 286 Cal.Rptr. 478 expressed concern that the peer review process might be weakened by any opening of its records.   However, if this is a danger it is one that should be addressed by the Legislature.   We conclude that in enacting section 1157, the Legislature was addressing the problem created by the Kenney decision and did not intend to intrude upon the investigatory authority it had given to the Board through its subpoena power.

The order granting the motion to compel compliance with the subpoena addressed to the Hospital is affirmed.⁶  The petitions for writ of mandate are granted.   Let a peremptory writ of mandate issue directing respondent court to vacate its order granting the motion to compel disclosure of treatment records and to issue a new order denying the motion.

FOOTNOTES

1.   Of course, an appellate court may review an order on a motion for compliance with an administrative subpoena on a petition under circumstances where an appeal is not an adequate remedy.  (Code Civ.Proc., § 1086.)   We do so here as to the petitions involving the treatment records sought from Merritt–Peralta Institute and the New Bridge Foundation.   An appeal is no longer an adequate remedy as to these records because petitioners' appeals were previously dismissed.

2.   The Board does not dispute the fact that these provisions are applicable to its efforts to subpoena the treatment records in question here.

3.   Business and Professions Code section 2238 provides:  “A violation of any federal statute or federal regulation or any of the statutes or regulations of this state regulating dangerous drugs or controlled substances constitutes unprofessional conduct.”Business and Professions Code section 2239, subdivision (a), provides:  “The use or prescribing for or administering to himself or herself, of any controlled substance;  or the use of any of the dangerous drugs specified in Section 4211, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct.   The record of the conviction is conclusive evidence of such unprofessional conduct.”Business and Professions Code section 2240 before its repeal provided:  “Every licensee who, while in actual attendance on patients, is intoxicated to such an extent as to impair his or her ability to conduct the practice of medicine with safety to the public and his or her patients, is guilty of unprofessional conduct.”  (See now § 2280.)

4.   The exceptions most relevant to the Hospital's point are contained in section 1157, subdivision (c), which provides:  “The prohibition relating to discovery or testimony does not apply to the statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding the subject matter of which was reviewed at that meeting, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.”  (See also subdivisions (d) and (e).)

5.   The Board seeks to bolster its contention that the Legislature used the term “discovery” in the limited sense by reference to statements in the legislative history referring to section 1157 as an exception from “discovery in civil actions” or “discovery in litigation” or “discovery in civil proceedings.”   The Board requested that we take judicial notice of the historical materials furnished to them by the Legislative Intent Service.   We took judicial notice of these materials subject to rulings as to relevance.   We do not find the materials relevant to the determination of the Legislature's intention regarding inclusion of administrative subpoenas as discovery within the context of section 1157, primarily because none of the materials even refer to the subject much less reveal an opinion on the issue.   We thus find it unnecessary to address the Hospital's several other objections to consideration of these materials.

6.   We note that if the records sought by the Board from the Hospital include drug treatment records protected by federal and state statute, further proceedings may be necessary in accordance with the views expressed in this opinion.

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.