Doctor cannot hide behind physician-patient privilege to avoid insurance fraud investigation

Burns v. The Honorable Ann Boyden, 2006 UT 14

This opinion is classic Durrant: clear and logical. I think he's arguably the best writer on the court. The first paragraph in the opinion pretty much sums the whole thing up:

This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. As to the first issue, rule 506 of the Utah Rules of Evidence provides a physician presumptive authority to claim the physician-patient privilege “on behalf of the patient.” We hold that the State has rebutted this presumption by demonstrating that Burns is asserting the privilege not on behalf of his patients but for his own benefit. As to the second issue, Utah law allows the State, with approval and oversight from a district court, to conduct a criminal investigation in secret. Despite the secrecy order obtained by the State, Burns has adequate information about the investigation, and there are adequate procedural safeguards in place to effectively protect Burns’s constitutional rights.

A couple of important points from the opinion. First, the physician-patient privilege issue was decided exclusively under rule 506, Utah Rules of Evidence. The court held that the rules of evidence, not Utah Code Ann. § 78-24-8(4), control physician-patient privilege issues in court. It treated section 78-24-8(4) as an “encroachment” on its rulemaking authority. The court also refused to recognize an insurance fraud exception to rule 506.

Second, the court clarified the analysis for when a physician may claim the privilege on behalf of a patient:

The rule states that the treating physician is presumed “to have authority . . . to claim the privilege.” Yet presuming authority would appear to presume a legal effect rather than a fact. In actuality, since a physician must prove all the basic facts to trigger the presumption that a patient would need to prove to claim the privilege, the only remaining fact for a physician to prove is that he is, in fact, claiming the privilege “on behalf of the patient” and not for his own benefit. In sum, the “presumed fact” under rule 506(c) is that the physician is claiming the privilege on behalf of the patient. Thus, to defeat a physician’s ability to claim a privilege once the physician has proven all the basic facts, a party needs to prove “that the nonexistence of [a physician’s intent to claim the privilege for the patient’s benefit] is more probable than its existence.” In other words, to rebut the physician’s authority, the challenging party must show that it is more likely than not that a physician is claiming the privilege in his own self-interest.

The court relied heavily on Utah Evidence Law by Kimball and Boyce for the above analysis. It concluded that Burns could not claim the privilege because the record demonstrated that he was not claiming the privilege on behalf of his patients, but on his own behalf. The court found particularly compelling Burns’ attack on a court imposed secrecy order under the Subpoena Powers for Aid of Criminal Investigation and Grant of Immunity Act. That order was about the only thing besides rule 506 guarding his patients’ privacy.