The case against Dr. Alwin Lewis started with a patient’s complaint  about his unorthodox diet plan.
But it landed at the California Supreme Court with a much broader issue at stake: Whether  regulators should have unrestricted access to a state database detailing doctors’ prescribing practices.

Investigators with the Medical Board of California ran Lewis’ name through the database after a patient complained he pushed her to get on his “five-bite” diet program – no breakfast, then just five bites of any food for lunch and dinner. The diet complaint itself got little traction, but investigators did spot in the database possible problems in how the Burbank physician was prescribing medications to other patients.

Partly as a result of that search, the board in 2013 found Lewis kept poor records and had briefly overprescribed medications to two patients, placing him on three years’ administrative probation.

That’s when Lewis turned to the courts, arguing the board had gone fishing for a case against him. In a twist, he asserted that regulators violated not his rights, but those of his patients under the state constitution’s privacy provisions.

Lewis’ lawyer, Ben Fenton of Los Angeles, said regulators should get a court order or a signed patient release to look through the databases, just as they must do for a patient’s medical records. After losing at lower court levels, Fenton took the case to the state Supreme Court, which has agreed to hear it this year but not scheduled a date.

Though access by law enforcement officials to prescription databases has been challenged in various states – successfully in Oregon —  the California case is believed to be among the first in the country to challenge unrestricted access by medical boards to state prescription drug databases.

Legal fallout of the case would be limited to California but the court battle has drawn national interest, with the American Medical Association weighing in with an amicus brief on Lewis’ behalf, along with the California Medical Association.

The California database, maintained  by the state Department of Justice, contains details including physicians’ and patients’ names and is based on weekly reports from pharmacies about prescriptions they have filled for certain high-risk drugs including powerful painkillers. By law, the justice department must provide reports to certain civil and criminal investigators and no court order or warrant is required for access, including for medical board investigators.

Like California, nearly every state now  has prescription drug monitoring programs, often known by their acronym PDMP. PDMPs were set up to detect “doctor shopping” by addicts and dealers who seek pain prescriptions from multiple physicians – the purpose that often gets the most attention. But those databases also give licensing boards and law enforcement a way to spot and rein in reckless prescribing by doctors.

In other states, the American Civil Liberties Union and others have argued that law enforcement ought to meet a  “probable cause” standard before getting such records. But Nate Wessler, an ACLU attorney who has brought such cases, agreed with Fenton that  medical licensing officials, as well, should meet some legal standard before getting into the records. check

“At the end of the day, it’s patients’ records that are being searched,” Wessler said.

As it stands, states tend to put up few barriers to medical licensing boards seeking  information as part of their duties. Experts at the PDMP Center for Excellence at Brandeis University outside Boston knew of only one state — Iowa – that requires medical boards get a court order before looking at the databases.

Thomas Clark, a researcher at the center, said he worries a decision in Lewis’ favor could encourage states to erect new hurdles to  licensing boards, which can use the databases to monitor how medical providers are prescribing some of the most dangerous and addictive medications.

“That kind of monitoring is extremely important to make sure doctors aren’t overprescribing,” he said.

Lewis’ lawyer, Fenton, noted that the original complaint against his client had nothing to do with drug prescriptions, yet the board still ran Lewis through the voluminous database, which contains patient names and medications.

According to testimony cited in court papers, an  investigator with the medical board said officials routinely check the names of physicians under investigation in the database.

None of Lewis’ patients complained about the board’s actions.

The AMA weighed in in support of Lewwis. While the organization supports keeping drug prescription databases,  “allowing unfettered access by those outside of the health care system to use information in [the databases] violates essential legal and ethical standards of patient privacy,” said Dr. Stephen Permut, chairman elect of the AMA’s board of trustees, in a written statement.

The California board, supported by a series of lower court rulings, says getting a court order could stall the release of records, imperiling patient safety. And  it argues the comparison to private medical records is not apt.

The state appeals court agreed. Unlike medical records, prescriptions of controlled substances “are subject to regular scrutiny by law enforcement and regulatory agencies,” the court wrote when turning down Lewis’ appeal. As a result, the court said, patients have a “diminished expectation of privacy” about their information in the databases.

The court added: “If the privacy issue were litigated before accessing [the database], the prescribing physician under investigation could stall the release of these records, which would prevent the state from exercising its police power to protect the public health.”

Clark, of  Brandeis, said viewing prescribing data can provide the first sign of a problem with a particular physician or pharmacy. Regulators wouldn’t necessarily know there might be a problem — and know to bother seeking a court order – before they looked at the database, he said.

Requiring a court order first “puts the cart before the horse,” he said,  noting that he was offering  his personal opinion and not that of  Brandeis’ PDMP center.

Privacy concerns have been raised since the prescription drug monitoring programs programs began getting  more federal grant money about a decade ago to help deal with prescription drug abuse, Clark said.

Although he calls the patient privacy argument “bogus,” he suggested there is likely some middle ground. Perhaps the reports could shield certain identifying information from investigators before they get court orders, he suggested.

Too much is at stake to weaken the programs, he said, calling them valuable tools in checking for wrongdoing among patients, doctors and pharmacies alike.

“Any one of them could be doing something potentially risky,” he said.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

Jane Maier was one of a select group of patients invited in early 2012 to help Partners HealthCare, Massachusetts’ largest health system, pick its new electronic health record system – a critical investment of close to $700 million.

The system, which is now being phased in, will help coordinate services and reshape how patients and doctors find and read medical information. The fact that Partners sought the perspective of patients highlights how hospitals increasingly care about what their customers think.

“It’s such a great experience,” Maier said. “They treat us as a member – a partner – in their review process.”

Patient advisory councils, like the one Maier belongs to, often serve as sounding boards for hospital leaders – offering advice on a range of issues. Members are usually patients and relatives who had bad hospital experiences and want to change how things work, or who liked their stay and want to remain involved.

For Maier, it all started in 2009 when she had surgery at Brigham and Women’s Faulkner Hospital, a Partners facility. Her husband wrote to the hospital’s CEO, praising her experience. The couple was then invited to speak at a hospital leadership retreat, sharing with top executives both the good and the not-so-good, and Maier was recruited to serve on a new patient advisory panel.

This hunt for patient perspective, which is becoming more and more common, is fueled in part by the health law’s quality-improvement provisions and other federal financial incentives, such as the link between Medicare payments and patient satisfaction scores.

“It’s a change in culture,” said Jayne Hart Chambers, senior vice president for quality at the Federation of American Hospitals, which represents for-profit hospitals.

Data from 2013 suggested that 40 percent of hospitals had some kind of patient council, said Mary Minniti, a program and resource specialist at the Institute for Patient and Family Centered Care, a Maryland-based nonprofit organization. Though councils appear to have become more common in the past few years, experts say it’s too early to know whether they typically improve hospital practices.

“A lot of hospitals right now are very concerned because of the direction of [Medicare] payments,” said Carol Cronin, executive director of the nonprofit Informed Patient Institute, an advocacy group. “They’re very concerned about patient experience and patient satisfaction.”

But it’s not just federal incentives. Patients have greater expectations as they shoulder larger shares of health care costs, said Richard Evans, chief experience officer at Massachusetts General Hospital, another Partners facility. This, he added, leads hospitals to focus on customer service.

Cronin, who has had a relative stay for an extended time in the hospital, volunteers on the patient advisory council at Johns Hopkins Hospital in Baltimore. She was struck, she said, by the “meaty” topics the group addresses. Hopkins’ medical researchers have even pitched their projects to the council to find out what patients and families think are worthy of scientific investigation.

To have an impact, though, these groups can’t operate in isolation.

Patient and family advisory councils are useful if they have the ear of hospital leaders, Minniti said. But the groups also have to be integrated into decision making.

Andy DeVries joined the first patient advisory council at Michigan’s Spectrum Health about 10 years ago, after he was hospitalized with life-threatening injuries from a motorcycle accident.

“Initially, nobody knew who we were and we had to sell ourselves,” said DeVries, who now serves on one of Spectrum Health’s 13 patient groups. Now, by contrast, his group offers input “any time there’s something new that involves patient or family care,” adding that the panel of patient advisers has tackled issues ranging from beefing up the facility’s security to how the hospital should give patients billing information. He’s even worked with the human resources department on what to look for when hiring doctors and nurses.

Such feedback led to marked increases in patient satisfaction scores, said Deborah Sprague, Spectrum Health’s program manager for patient and family services.

For instance, she said, a member of the orthopedics and neuroscience patient council noticed slow responses when he pushed the call button in his hospital room, a problem staff hadn’t noticed. The council worked with hospital employees to speed up response times. After the fix, positive patient assessments of the hospital jumped.

Maier, from the Faulkner council, recalled a time when hospital executives asked for help with patient complaints regarding nighttime noise levels. Late-night talking by staff was keeping patients awake.

The group discussed potential nighttime “quiet times” and other strategies to minimize noise without keeping doctors from doing their jobs. Once changes were made, patient satisfaction scores went up, Maier said — and a council member noticed a definite improvement the next time he was a patient.

Meanwhile, MedStar Health, which serves the District of Columbia and Maryland, has targeted advisory panels’ efforts to improve both the quality and safety of its care. The system has emerged as a model for finding ways to incorporate patients’ opinions, which was noted in a report from the American Hospital Association.

In one recent case, said David Mayer, MedStar’s vice president of quality and safety, patient advisers helped brainstorm ways to soothe the confusion and stress that often sets in when people have been in the ICU for more than a day. When implemented, the ideas led to reduced instances of patient confusion – known as delirium – which is linked to more destructive behavior, like patients trying to leave the room or bed before they should.

But even as the role of patient advisory committees grows, recruiting members continues to be a challenge. Finding people from diverse backgrounds with both inclination and time can be tricky, Cronin said. As a result, council members are often “middle-aged and older, white and English-speaking, and a lot of women,” said Deb Wachenheim, health quality manager at the Massachusetts-based advocacy group Health Care For All.

For some hospitals and health systems, though, these panels are just the beginning. Massachusetts General puts patients on various policy setting committees, and Faulkner has a non-voting patient board member.

“As we continue to evolve,” Maier said, “the hospital looks to us more and more.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.

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