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Issue of the Case:
A Washington appellate court was asked whether a warrantless search of the sheriff's prescription records constituted an invasion of privacy when they were later released to the county prosecutor.
Facts of the Case:
The plaintiff, a county sheriff, began using prescription pain medicine after he received a jaw injury while on duty. A pharmacist noticed that the sheriff was "sweating, had glassy eyes, and was short of breath" when filling his Percocet prescription. After checking around with her colleagues, the pharmacist found that the sheriff was receiving narcotic prescriptions from 4 to 6 different pharmacies at the same time.
The Washington State Board of Pharmacy initiated an investigation. A board inspector reviewed the prescription records of 39 area pharmacies. She did not obtain a search warrant. The inspections showed that the sheriff had received a total of 265 prescriptions from 10 physicians for controlled substances that were filled by 8 pharmacies over a 17-month period.
Board of Pharmacy officials disclosed the results of their investigation to the county prosecutor and other government representatives. The board members reported that the sheriff was taking 25 dosage units a day of "mind-altering drugs," which would affect anyone's ability to safely use a car or carry a weapon.
The prosecutor filed criminal charges against the sheriff 7 days before the general election. The sheriff lost the election, but the criminal case was subsequently dismissed because the court ruled that the board had violated the sheriff's right to privacy by examining his records without a warrant. The county did not appeal the dismissal. The sheriff subsequently filed a civil suit against the State of Washington, alleging negligent disclosure of health care information.
The Court's Ruling:
A jury found that the sheriff had not committed a crime and that the board had negligently disclosed his health care information. The plaintiff was awarded $3.25 million in damages. The appellate court reversed the trial court award. It held that the trial court erred in the civil lawsuit when it concluded that the Board of Pharmacy needed a warrant to search prescription records.
The Court's Reasoning:
The court noted that the state Pharmacy Practice Act requires all pharmacies to maintain prescription records for inspection by the Board of Pharmacy or any officer of the law. The court concluded that "the legislature clearly intended that pharmacy records be available for enforcement of all prescription drug laws?not just those laws that regulate pharmacists and doctors, but those that criminalize certain behavior by patients." Furthermore, in the eyes of the court, the plain language of the pharmacy statute permitted these inspections to be conducted without a warrant.
The next step in the court's inquiry was to determine whether the pharmacy statute, as interpreted, violated the privacy protections of the federal and state constitutions. It concluded that patients who purchase prescription narcotics from pharmacists have a limited expectation of privacy in the information compiled by pharmacists regarding their prescriptions.
The court stated: "When a patient brings a prescription to a pharmacist, the patient has a right to expect that his or her use of a particular drug will not be disclosed arbitrarily or randomly. But a reasonable patient buying narcotic prescription drugs knows or should know that the State, which outlaws the distribution and use of such drugs without a prescription, will keep careful watch over the flow of such drugs from pharmacies to patients."
The court reviewed a series of cases from other jurisdictions. It noted that "no state that has addressed the issue has invalidated pharmacy statutes that grant access to law enforcement, either under the Constitution's Fourth Amendment or under their own constitutional privacy provisions."
Finally, the court determined that the disclosure of the board investigation to the prosecutor was not a violation of the sheriff's right of privacy. Such communications are permissible because it would be unreasonable to prevent dialogue between the board and the prosecuting attorney who must make a decision as to whether to criminally charge the person under investigation. A person's right of privacy is not absolute and will be balanced against the needs of the state.
Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.