Filed 6/29/26 Lally v. Nuccion CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHRISTINE LALLY, as Acting B342305
Director, etc.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 24STCP01901)
v.
STEPHEN LOUIS NUCCION,
Defendant and Appellant;
PATIENT 1,
Real Party in Interest and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Teresa A. Beaudet, Judge. Reversed.
Schafer McMahon, Raymond J. McMahon and Mary Chen
for Defendant and Appellant.
Rob Bonta, Attorney General, Gloria L. Castro, Assistant
Attorney General, Edward K. Kim and Christina Sein Goot,
Deputy Attorneys General, for Plaintiff and Respondent.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Derek Felton
O’Reilly-Jones and Nicholas Archibald for Real Party in Interest
and Appellant.
____________________________
This is an appeal from the trial court’s enforcement of the
Medical Board of California’s (the Board’s) subpoena to appellant
Dr. Stephen Louis Nuccion to produce real party in interest and
appellant Patient 1’s confidential medical records. The
appellants are family members. Dr. Nuccion treated Patient 1
with two controlled substances—phentermine and clonazepam—
over a six-year period. It is undisputed other physicians
prescribed the same two controlled substances for Patient 1
before and after Dr. Nuccion’s treatment of Patient 1. The Board,
an administrative agency within the Department of Consumer
Affairs (respondent), issued an expansive subpoena for
Patient 1’s medical record. The trial court found good cause to
order production of Patient 1’s medical records. Appellants
challenge that finding for want of substantial evidence. We agree
that no substantial evidence supported the trial court’s finding of
good cause to produce the confidential patient records requested
by the Board and reverse.
BACKGROUND
According to the Board, it received a complaint from an
unidentified person that Dr. Nuccion was prescribing controlled
substances to a family member. The Board “obtained the
Controlled Substance Utilization Review and Evaluation System
2
(‘CURES’)1 report” for Patient 1 from June 10, 2015 through June
10, 2022, which indicated that Dr. Nuccion prescribed
phentermine and clonazepam to Patient 1.
In January 2023, the Board issued an investigational
subpoena duces tecum to produce Patient 1’s papers and
documents. The subpoena requested the following records for the
June 10, 2015 through January 2023 time period:
“1. [A]ll medical histories, treatment notes and records,
physical examinations, test results, orders, prescription records,
operative reports, consultation records, nursing notes;
“2. all x-ray films and reports, MRIs and reports, CT scans
and reports; and any other imaging scans and reports;
“3. all pathology reports and laboratory data;
“4. all correspondence, consents, electronic
communications, memorandums, releases, and telephone
messages;
“5. all doctor-patient agreements, contracts, and other
records of agreements with the patient, created or in effect
between the specified dates above. This request includes records
that may have been created at any time, including before the
specified period, but that relate to the services provided during
the time period;
1 According to the Board, “CURES is a database of
Schedule II, Schedule III, Schedule IV and Schedule V controlled
substance prescriptions dispensed in California . . . .” In the
declaration of the Board’s consultant, Dr. Erich W. Pollak, he
stated, “Law enforcement and regulatory agencies use the data to
assist in their efforts to control the diversion and resultant abuse
of controlled substances.”
3
“6. all Patient Activity Reports (PARs) and Controlled
Substance Utilization Review and Evaluation System (CURES)
reports;
“7. all data, information or records concerning all
prescriptions for the patient;
“8. all billing records;
“9. all other data, information or record which would reveal
all medical care provided to the above-named patient.”
1. Petition for order to show cause and order compelling
compliance with investigational subpoena
Dr. Nuccion, an orthopedic surgeon, did not produce the
requested records, and the Board sought court intervention to
compel their production. The Board represented it needed
Patient 1’s medical records to determine if there has been a
violation of the Medical Practice Act, but did not specify any
potential violation of the Medical Practice Act.2 In its petition,
the Board relied exclusively on Dr. Pollak’s declaration to argue
good cause to compel compliance with the investigational
subpoena. According to the Board, Dr. Pollak opined Dr. Nuccion
prescribed phentermine and clonazepam beyond the
“recommended time period” and also opined that orthopedic
surgeons do not generally prescribe those medications.3
2 The Medical Practice Act is codified in Business and
Professions Code section 2000 et seq.
3 We do not agree with Patient 1 that Dr. Pollak was not
qualified to provide an expert medical opinion because he was not
an orthopedic surgeon. (Fett v. Medical Bd. of California (2016)
245 Cal.App.4th 211, 222 [“It is not critical whether a medical
expert is a specialist.”].)
4
In his declaration in support of the petition for order
compelling compliance with the investigational subpoena,
Dr. Pollak averred that he is a licensed physician and surgeon
with more than 53 years of experience. Dr. Pollak reviewed the
CURES database maintained by the California Department of
Justice to monitor the prescribing and dispensing of controlled
substances. Dr. Pollak learned from that database Dr. Nuccion
prescribed to a family member the controlled substances
phentermine (an “oral sympathomimetic amine,
pharmacologically similar to amphetamines”) and clonazepam (a
benzodiazepine) over several years. The prescribing of controlled
substances to a family member “may” have violated a provision in
the Medical Practice Act he does not identify.
Dr. Pollak further averred, the “standard of care for a
physician repetitively prescribing addicting controlled substances
includes, but is not limited to, keeping adequate and complete
medical records, documenting a pertinent history and
appropriate physical examination prior to initiating treatment
with controlled substances, documentation of relevant tests
which support the diagnosis and the prescription of controlled
substances, and documentation of reasons justifying why
controlled substances were chosen instead of other treatment
modalities. The standard of care also requires documentation of
a treatment plan and informed consent, and having a treatment
plan in place which includes a clause establishing that controlled
medications will only be for the personal use of the patient,
obtained only from one medical office, and will be dispensed by
only one pharmacy, and that noncompliance with these
restrictions will not be tolerated.”
5
Dr. Pollak then elaborated on his definition of the standard
of care: “The standard of care is to refuse to prescribe a
controlled substance in the absence of a legitimate medical
reason for the prescription. This includes the prescription of a
controlled substance when the prescriber knows or reasonably
believes that the recipient of the prescription will use the
controlled substance for nonmedical purposes, such as
recreational use or sale to a third party. A prescriber of
controlled substances is expected to take reasonable precautions
to prevent diversion of these controlled substances for nonmedical
use. . . . The standard of care also includes exercising reasonable
diligence to distinguish a truly afflicted patient from an addict
who wants a drug to satisfy his or her addiction, or a person who
intends to resell the drug in [a] clandestine fashion. The
standard of care is to decline to prescribe narcotics to an addict
just to satisfy his or her addiction. Finally, controlled substances
should only be prescribed for a good medical reason. Prior to
such a prescription, an appropriate evaluation of the patient has
to be documented in records, including at least a pertinent
history and an appropriate physical examination.”
Dr. Pollak stated that Dr. Nuccion “may be prescribing in
an unprofessional manner, including possible diversion of these
drugs for inappropriate uses, including the possible self-use of the
prescribed medications and the possibility that the prescribed
medications are not for a legitimate medical reason and are not
supported by documentation justifying the prescriptions.”
Dr. Pollak concluded, “[T]here is good cause to believe that
Dr. Nuccion was practicing medicine outside the standard of care
when he repetitively prescribed phentermine and clonazepam to
Patient 1 over a six-year period. Based on the fact that Patient 1
6
is Dr. Nuccion’s family member . . . and the fact that Dr. Nuccion
is an orthopedic surgeon whose area of specialization does not
typically involve the prescription of the controlled substances at
issue, there is good cause to believe that the prescribed
medications are not for a legitimate medical reason and are not
supported by documentation justifying the prescriptions. In
order to opine on the issues enumerated above and to determine
whether or not a violation of the Medical Practice Act has
occurred, it is necessary to obtain and review Dr. Nuccion’s
certified medical records for Patient 1 for the period of June 10,
2015 to the present.”
2. Dr. Nuccion opposed the Board’s petition to compel
compliance with the investigative subpoena
Dr. Nuccion argued in opposition to the petition that
Dr. Pollak’s declaration did not justify invading Patient 1’s
privacy rights. Dr. Nuccion also argued the subpoena seeking
records from 2015 to the present was overbroad.
Dr. Daniel F. Chueh, a psychiatrist, provided a declaration
in support of Dr. Nuccion’s opposition. Dr. Chueh averred
orthopedic surgeons are familiar with phentermine and
clonazepam as part of their specialization. Dr. Chueh also stated
phentermine is safe for long-term use, and that studies showed
the risk of long term benzodiazepines (including clonazepam)
were overstated.
Dr. Nuccion also provided a declaration. He represented,
“The use of benzodiazepines has become a routine part of my
practice for more than two decades.” According to Dr. Nuccion,
between 2 and 7.5 percent of the population use benzodiazepine
long term. He also averred longer use of phentermine is a
common practice to “help patients achieve a more ideal body
7
weight and for the medical treatment of obesity” and the risks of
long term use of phentermine were lower than the risk of obesity.
He opined achieving such an ideal weight is “one of the easiest
ways to manage musculoskeletal complaints.” Dr. Nuccion also
stated he does not take any controlled substances and has never
taken medication prescribed to another person.
3. Patient 1 intervenes and opposes the Board’s petition
The trial court permitted Patient 1 to intervene to assert
privacy rights to confidential medical records and oppose the
petition. In a declaration, Patient 1 stated Dr. Nuccion provided
care when Patient 1 was searching for new providers. Patient 1
added Dr. Nuccion did not initiate Patient 1’s phentermine or
clonazepam prescriptions and current providers have continued
those prescriptions. Patient 1 also stated, “I have suffered no
adverse side effects or negative consequences from the
medications I have been prescribed and I am neither dependent
upon nor addicted to either clonazepam or phentermine.” Patient
1 expressed satisfaction with Dr. Nuccion’s care. She claimed the
phentermine and clonazepam Dr. Nuccion and other physicians
had prescribed were “essential to my being able to complete the
ordinary activities of daily living.”
Patient 1 also provided the declaration of Dr. Marvin
Firestone, a psychiatrist. Dr. Firestone opined orthopedic
surgeons routinely prescribe phentermine and clonazepam in
practicing their specialty. Dr. Firestone stated, “[T]here is no law
or regulation that prohibits physicians from prescribing to family
members. In fact, research has demonstrated that approximately
84% of physicians have or will at some point in their careers treat
a family member.” Dr. Firestone acknowledged, “generally,”
phentermine is not “recommended for long term use for the
8
treatment of obesity.” He, however, added recommendations are
not “prohibitions” and “[e]very clinical situation is different and
requires individualized, case-by case analysis by a physician.”
Dr. Firestone also stated Schedule IV drugs,4 including
phentermine and clonazepam, have a low potential for abuse and
risk of dependence.
4. Reply
In response to Patient 1’s opposition, the Board argued
Dr. Pollak’s declaration provided good cause for subpoenaing
Patient 1’s medical records and the Board’s interest in ensuring
that Dr. Nuccion’s conduct conforms to the standard of care
outweighs Patient 1’s privacy concerns. The Board disputed that
it was common practice to treat a family member and in support,
cited the American Medical Association (AMA) Code of Medical
Ethics, which according to the Board, counsels against treating
family members. The trial court, however, denied the Board’s
request for judicial notice of the AMA Code of Medical Ethics.5
In response to Dr. Nuccion’s opposition, the Board
emphasized that orthopedic surgery does not involve the
prescription of phentermine or clonazepam. The Board
contended Dr. Chueh’s declaration was not persuasive because he
is a psychiatrist. According to the Board: “Psychiatry is a branch
of medicine that focuses on the diagnosis, treatment and
prevention of mental, emotional and behavioral disorders, which
4See Health and Safety Code section 11057, which lists
Schedule IV substances.
5 By order dated March 13, 2026, this court took judicial
notice of the AMA Code of Medical Ethics Opinion 1.2.1 “Treating
Self or Family.”
9
is very different than the practice of orthopedic surgery, which
focuses on treating, diagnosing, and preventing conditions that
affect your bones, muscles and joints.” (Fn. omitted.)
5. Trial court order
Based on Dr. Pollak’s declaration, the trial found “good
cause to review the requested records.” Citing Kirchmeyer v.
Helios Psychiatry Inc. (2023) 89 Cal.App.5th 352 (Helios), the
trial court stated the Board is not required to provide
wrongdoing, but only to provide evidence supporting the
inference that Dr. Nuccion departed from the standard of care.
The court ordered Dr. Nuccion to produce the following
documents for the June 10, 2015 through January 26, 2023 time
period:
“1. [A]ll medical histories, treatment notes and records,
physical examinations, test results, orders, prescription records,
operative reports, consultation records, nursing notes;
“2. all x-ray films and reports, MRIs and reports, CT scans
and reports; and any other imaging scans and reports;
“3. all pathology reports and laboratory data;
“4. all correspondence, consents, electronic
communications, memorandums, releases, and telephone
messages;
“5. all doctor-patient agreements, contracts, and other
records of agreements with the patient, created or in effect
between the specified dates above [June 10, 2015 through the
present]. This request includes records that may have been
created at any time, including before the specified period, but
that relate to the services provided during the time period;
10
“6. all Patient Activity Reports (PARs)and Controlled
Substance Utilization Review and Evaluation System (CURES)
reports;
“7. all data, information or records concerning all
prescriptions for the patient;
“8. all billing records;
“9. all other data, information or record[s] which would
reveal all medical care provided to the above-named patient.”
The court found these records “ ‘relevant and material’ ” to the
Board’s inquiry.
Dr. Nuccion and Patient 1 appealed and petitioned for a
writ of supersedeas (in case No. B342305) to stay the trial court’s
order pending the resolution of this appeal. We issued a stay
pending this appeal.
DISCUSSION
A physician may prescribe controlled substances only when
the physician “holds a good faith belief that it is required for a
patient’s ailment, and only in a quantity and for a length of time
that is reasonably necessary.” (Grafilo v. Cohanshohet (2019)
32 Cal.App.5th 428, 435.) The Board may impose disciplinary
action if a physician violates these principles. (Id. at p. 435.) The
Board may issue a subpoena for investigative purpose, and if a
physician refuses to comply, the Board may petition the superior
court for an order compelling compliance. (Ibid.)
The Board’s right to information must be balanced against
a patient’s right to privacy of his or her medical records. (Grafilo
v. Soorani (2019) 41 Cal.App.5th 497, 507; Grafilo v. Wolfsohn
(2019) 33 Cal.App.5th 1024, 1032.) “Medical patients’ privacy
interest, our Supreme Court has observed, derives from their
expectation of privacy in their physician’s files, which ‘may
11
include descriptions of symptoms, family history, diagnoses, test
results, and other intimate details concerning treatment.’
[Citation.] Although the patient’s privacy interest is ‘robust’
[citation], it must be balanced against the state’s legitimate and
important countervailing interest ‘in ensuring that the public
receives medical care that conforms with the standard of care.’
[Citation.]” (Grafilo v. Wolfsohn, supra, 33 Cal.App.5th at
pp. 1034–1035.)
This balance tilts in favor of the Board when the Board
shows “ ‘through competent evidence that the particular records
it seeks are relevant and material to its inquiry sufficient for a
trial court to independently make a finding of good cause . . . .
[Citations.]’ [Citation.]” (Grafilo v. Soorani, supra,
41 Cal.App.5th at pp. 508–509.) “ ‘When the Medical Board seeks
judicial enforcement of a subpoena for a physician’s medical
records, it cannot delve into an area of reasonably expected
privacy simply because it wants assurance the law is not violated
or a doctor is not negligent in treatment of his or her patient.
[Citation.] Instead, the Medical Board must demonstrate
through competent evidence that the particular records it seeks
are relevant and material to its inquiry sufficient for a trial court
to independently make a finding of good cause to order the
materials disclosed. [Citations.] . . . .’ [Citation.]” (Kirchmeyer v.
Phillips (2016) 245 Cal.App.4th 1394, 1402.)
“When petitioning to compel compliance with an
investigative subpoena, the Board’s burden is not to prove
wrongdoing, but rather to provide evidence supporting an
inference the physician departed from the standard of care.”
(Helios, supra, 89 Cal.App.5th at p. 362; see also Wood v.
Superior Court (1985) 166 Cal.App.3d 1138, 1150 (Wood) [The
12
Board is not required to show wrongdoing but to put forth
evidence to support its “inference of improper prescribing”].)6
We review for substantial evidence, the trial court’s finding
of good cause. (Grafilo v. Wolfsohn, supra, 33 Cal.App.5th at
p. 1035.) The parties dispute whether substantial evidence
supports the trial court’s conclusion that the Board proffered
evidence supporting the inference that Dr. Nuccion departed from
the standard of care by prescribing clonazepam and phentermine
to Patient 1 over a six-year period. We conclude the Board
did not provide evidence supporting such an inference of
departure from the standard of care defined by the Board’s
expert. (Helios, supra, 89 Cal.App.5th at p. 362 [Board’s burden
is to “provide evidence supporting an inference the physician
departed from the standard of care”].)
Two cases feature prominently in the parties’ briefing.
Dr. Nuccion and Patient 1 rely on this Division’s Grafilo v.
Wolfsohn, supra, 33 Cal.App.5th 1024 and the Board relies on
Helios, supra, 89 Cal.App.5th 352. We turn to those cases now.
A. Grafilo v. Wolfsohn, supra, 33 Cal.App.5th 1024
In Grafilo, we held the Board did not establish good cause
to compel a doctor specializing in pain management to produce
the medical records of five of his patients. (Grafilo v. Wolfsohn,
6 The California Supreme Court disapproved Wood, supra,
166 Cal.App.3d 1138, to the extent Wood “require[s] a party
seeking discovery of private information to always establish a
compelling interest or compelling need.” (Williams v. Superior
Court (2017) 3 Cal.5th 531, 557 & fn. 8.) Wood was not overruled
on any other ground and thus, it is still authoritative for, inter
alia, its “good cause analysis.” (Grafilo v. Cohanshohet, supra,
32 Cal.App.5th at p. 437, fn. 2.)
13
supra, 33 Cal.App.5th at p. 1027.) Law enforcement reported to
the Board that the doctor may have been overprescribing
controlled substances. This complaint precipitated the Board’s
investigation. (Ibid.) A medical consultant for the Board opined
that the doctor “ ‘prescribed controlled substances in a manner
that appeared to be inconsistent with the standard of care for
prescribing those drugs’ ” and the patients’ records were
necessary to determine if Dr. Wolfsohn “ ‘properly and safely
administered’ ” the controlled substances. (Id. at p. 1028.) The
medical consultant noted the amount of each prescribed drug and
the frequency of the “ ‘prescriptions fulfilled’ ” for each patient
and concluded the “ ‘prescription patterns . . . appear to represent
concerning departures from the standard of care for prescribing
these controlled substances.’ ” (Id. at p. 1030.) The consultant
did not opine that this data indicated a breach of the standard of
care or violation of the Medical Practice Act. Instead, he opined
the patients’ medical records were necessary to ensure the doctor
conducted an “ ‘appropriate examination or screening’ ” and
applied “ ‘appropriate monitoring’ ” to prevent placing his
patients at undue risk. (Ibid.)
In opposition, the doctor’s expert stated in his declaration
that there was no reason to believe the doctor acted outside the
standard of care and the desire to review the patients’ medical
records . . . is “ ‘speculative curiosity, not a good cause belief to
pry into confidential patient files and care.’ ” (Grafilo v.
Wolfshon, supra, 33 Cal.App.5th at p. 1031.)
In concluding no substantial evidence supported the trial
court’s finding of good cause, we explained: “ ‘ “When the Medical
Board seeks judicial enforcement of a subpoena for a physician’s
medical records, it cannot delve into an area of reasonably
14
expected privacy simply because it wants assurance the law
is not violated or a doctor is not negligent in treatment of his or
her patient. [Citation.] Instead, the Medical Board must
demonstrate through competent evidence that the particular
records it seeks are relevant and material to its inquiry sufficient
for a trial court to independently make a finding of good cause to
order the materials disclosed.” ’ [Citation.]” (Grafilo v. Wolfshon,
supra, 33 Cal.App.5th at p. 1035.) The Medical Board must
“make a sufficient evidentiary showing that the subpoenaed
physician has been issuing prescriptions in violation of law or the
particular applicable standard of care.” (Id. at p. 1036.)
We concluded the Board had not meet its burden to show
good cause because it “offered no evidence as to how many
patients Wolfsohn treats, the percentage of his patients the five
patients comprised, how often similarly situated pain
management specialists might prescribe the drugs Wolfsohn
prescribed, or the likelihood Wolfsohn properly issued the
prescriptions.” (Grafilo v. Wolfshon, supra, 33 Cal.App.5th at
p. 1037.) The Board also did not contradict Dr. Wolfsohn’s
expert, who opined that Wolfsohn’s prescriptions are “ ‘not
outside of acceptable’ levels for a pain management specialist.”
(Ibid.)
In our opinion, we relied on Grafilo v. Cohanshohet, supra,
32 Cal.App.5th 428. In Cohanshohet, Division Eight of this
District held the declaration of the Board’s expert did not support
good cause for disclosure of patient medical records. The Board’s
investigation started when an anonymous person complained the
doctor, a pain management specialist, overprescribed opioids for
one patient without conducting an examination or screening of
the patient. (Id. at p. 431.) The Board’s expert, the same expert
15
who appeared for the Board in Grafilo, “identified five patients
who were prescribed controlled substances in a manner that
appeared to deviate from the standard of care for prescribing
these drugs.” (Id. at p. 432.) The Board’s expert opined the
patients’ medical records were necessary to determine whether
the doctor “performed an examination and screening of those
patients, received informed consent, regularly assessed the
efficacy and effects of the treatment regimen, and monitored
these patients.” (Id. at p. 433.)
The appellate court held an expert merely opining that
confidential medical records are needed to determine whether a
physician performed an adequate examination and screening and
regularly assessed the patient is insufficient to show good cause
to produce patients’ records. (Grafilo v. Cohanshohet, supra,
32 Cal.App.5th at p. 435.) The court added, there were “no facts
suggesting Dr. Cohanshohet was negligent in treating his
patients or that he prescribed controlled substances without
meeting the standard of care.” (Id. at p. 440.)
B. Helios, supra, 89 Cal.App.5th 352
In Helios, the appellate court affirmed the implied finding
that the Board showed good cause to obtain medical records of a
family member for whom the subject psychiatrist prescribed
controlled substances. (Helios, supra, 89 Cal.App.5th at p. 356.)
The Board investigation commenced after a patient filed a
complaint alleging the psychiatrist inappropriately prescribed
controlled substances and violated professional boundaries.
(Ibid.) During its investigation, the Board found that the doctor
prescribed Adderall and Klonopin to a family member and the
Board “deemed it necessary to obtain the family member’s
16
medical records to evaluate whether the prescriptions were
‘medically appropriate and within the standard of care.’ ” (Ibid.)
To support good cause, the Board relied on its expert,
Dr. Laura Davies, also a psychiatrist. She cited an ethics opinion
that “counseled physicians against treating family members
except in emergencies.” (Helios, supra, 89 Cal.App.5th at p. 357.)
She observed this admonishment not to treat family members
except in emergencies “applied ‘with particular emphasis’ to
psychiatrists as they are required to maintain appropriate
boundaries with patients and should not serve in multiple roles.”
(Ibid.) “According to Dr. Davies, it is ‘well understood among
psychiatrists, and is part of the training in psychiatry, that
treating family members is outside the standard of care. And
prescribing controlled substances is in virtually all
circumstances, far outside the standard of care.’ ” (Ibid.)
Dr. Davies added that the family member at issue there had no
prior prescription for the controlled substances. (Ibid.)
Dr. Davies concluded the medical records would be necessary to
assess the reason the doctor prescribed medication to a family
member and whether the doctor properly documented the family
member’s treatment. (Ibid.)
The appellate court concluded substantial evidence
supported good cause requiring disclosure of the medical records.
(Helios, supra, 89 Cal.App.5th at p. 360.) The appellate court
reiterated that the Board’s burden was not to prove wrongdoing,
but instead, to proffer evidence “supporting an inference the
physician departed from the standard of care.” (Id. at p. 362.)
The appellate court concluded the Board’s expert opinion
supported such an inference. As noted above, Dr. Davies opined
that treating a family member was “outside the standard of care”
17
and prescribing controlled substances was “far outside the
standard of care.” (Id. at p. 361, italics omitted.) The expert also
opined it was “highly improbable” an emergency justified the
prescriptions for a family member given the availability of
physicians in the Bay Area. (Ibid.) In ruling the Board had
shown good cause, the appellate court observed that the
subpoena was limited in scope—“it sought documents and
information supporting [the doctor’s] rationale for prescribing the
controlled substances to her family member between
January 2019 and September 2020.” (Ibid.)
C. The Board Here Did Not Provide Any Evidence From
Which To Infer Dr. Nuccion Breached the Standard
of Care
Dr. Pollak’s declaration does not constitute substantial
evidence from which to infer that Dr. Nuccion acted outside the
standard of care he identifies in his declaration. Dr. Pollak
stated in his declaration that the standard of care requires
keeping adequate records and documentation and that controlled
substances be used only by the patient. Dr. Pollak also described
the standard of care as refusing to prescribe a controlled
substance absent a legitimate medical reason. In contrast to the
Board’s expert in Helios, Dr. Pollak did not describe the standard
of care as prohibiting an orthopedic surgeon from prescribing
controlled substances to a family member.
Here, there was no evidence from which to infer that
Dr. Nuccion failed to keep adequate records or documentation of
his prescriptions to Patient 1 or that there was no legitimate
reason for prescribing the medications to Patient 1, especially
given, again in contrast to Helios, that it was undisputed other
physicians had prescribed the same medications to Patient 1 in
18
the past and subsequent to Dr. Nuccion’s prescriptions for
Patient 1. Dr. Pollak’s statement that Dr. Nuccion may himself
be using the controlled substances is untethered to evidence and
constitutes mere speculation. The Board did not describe Patient
1’s CURES report as showing any change in Patient 1’s
prescriptions. This is significant because a change in
prescriptions potentially might suggest the prescriptions were
being used by someone other than Patient 1. As noted in Grafilo,
merely identifying a need to review records to determine whether
a physician performed an adequate examination and properly
documented a patient’s care, without more, does not support good
cause for disclosure of confidential patient medical records.
(Grafilo v. Cohanshohet, supra, 32 Cal.App.5th at p. 440.)
Respondent argues, “The very essence of the potential
violation lies in the fact that Dr. Nuccion repeatedly prescribed to
his family member over several years for drugs normally
prescribed on a short-term basis.” Respondent appears to assume
that it is a breach of the standard of care to prescribe a drug for
more than the purported “normal” time-period a prescription is
prescribed. This assumption is not supported by Dr. Pollak’s
declaration. Dr. Pollak stated use of phentermine and
clonazepam beyond the “useful recommended time period”
increases the possibility of drug addiction. Dr. Pollak also stated,
“The standard of care is to decline to prescribe narcotics to an
addict just to satisfy his or her addiction.” (Italics added.) The
Board offered no evidence from which to infer Patient 1 had a
drug addiction or even that the substances prescribed to Patient
19
1 are narcotics.7 While Dr. Pollak opined that phentermine “is
not recommended for long-term use due to the lack of long-term
benefits,” he did not opine that proscribing phentermine for long
term use was a breach of the standard of care. Dr. Pollak also did
not opine that prescribing the long-term use of clonazepam was a
breach of the standard of care.8
Relying on the undisputed fact that Dr. Nuccion is an
orthopedic surgeon, Dr. Pollak averred because orthopedic
surgeons do not generally prescribe clonazepam or phentermine,
there were concerns Dr. Nuccion may have prescribed the
controlled substances for “possible self-use” or for an illegitimate
reason. Dr. Pollak, however, offers no evidence supporting the
inference that Dr. Nuccion prescribed the medications for an
improper purpose, including his own use, and it is undisputed
that other physicians prescribed Patient 1 the same medications.
In addition to relying on Dr. Pollak’s declaration,
respondent relies on an ethics opinion by the AMA stating that,
in general, a physician should not treat a family member except
in an emergency or for a short term. This ethics opinion was not
in the record before the trial court and it is that record we review
for substantial evidence. Respondent cites no legal authority
supporting that this court can consider new evidence when
evaluating whether substantial evidence supports the trial
7 Dr. Pollak averred that clonazepam is a benzodiazepine
and phentermine was an “oral sympathomimetic amine,
pharmacologically similar to amphetamines.” Dr. Pollak did not
aver that either clonazepam or phentermine was a narcotic.
8 In a footnote, Dr. Pollack described benzodiazepines and
stated that “[i]n general” they are used “for a limited time period”
but he did not describe that time period.
20
court’s finding of good cause to order disclosure of patient
records.9 Dr. Pollak, moreover, did not opine that breach of an
AMA ethics opinion is also a breach of the standard of care.
Respondent proffered no evidence to support that the AMA’s
ethics opinion constitutes the standard of care.
In contrast, in Helios, the Board’s request for documents
was accompanied by an expert declaration that identified the
relevant standard of care and provided evidence from which to
infer a potential breach of that standard. To recap, the Board’s
expert averred, “[I]t is ‘well understood among psychiatrists, and
is part of the training in psychiatry, that treating family
members is outside the standard of care. And prescribing
controlled substances is in virtually all circumstances, far outside
the standard of care.’ ” (Helios, supra, 89 Cal.App.5th at p. 357.)
In this case, there was no similar evidence that an orthopedic
surgeon’s prescribing controlled substances to a family member is
outside or far outside the standard of care of an orthopedic
surgeon. The Board does not argue that the standard of care is
the same for psychiatrists and orthopedic surgeons; it only
asserts that psychiatry is “very different than the practice of
orthopedic surgery . . . .”
9 “ ‘It is a fundamental principle of appellate law that our
review of the trial court’s decision must be based on the evidence
before the [trial] court at the time it rendered its decision.
[Citations.]’ [Citation.]” (Grafilo v. Soorani, supra,
41 Cal.App.5th at p. 512.) For that reason, we deny Patient 1’s
request for judicial notice of the California Department of Justice
“CURES Prescribers, Pharmacists, Non-DEA Practitioners, and
Delegates User Guide” as revised May 2026. This guide was not
before the trial court when it rendered its decision ordering
disclosure of Patient 1’s medical records.
21
In further contrast, in Helios, the medical board sought
only “documents and information supporting [the doctor’s]
rationale for prescribing the controlled substances to her family
member between January 2019 and September 2020.” (Helios,
supra, 89 Cal.App.5th at p. 361.) Here, the Board’s request was
far reaching (see Background, ante) and substantially
compromises Patient 1’s privacy rights in medical records over a
several-year period. (See Wood, supra, 166 Cal.App.3d at p. 1149
[Board must “demonstrate that the particular records it seeks are
‘relevant and material to the board’s inquiry’ ”].) The trial court’s
order was similarly broad. (See Background, part 5, ante.) In
short, the trial court erred in finding good cause to support the
Board’s expansive request for Patient 1’s medical records from
2015 through 2023.
Respondent argues Dr. Chueh and Dr. Firestone’s
declarations are not persuasive. We have not relied on those
declarations because our standard of review requires us to
consider the evidence in the light most favorable to the trial
court’s order. (Grafilo v. Wolfsohn, supra, 33 Cal.App.5th at
p. 1035 [we review the trial court’s good cause determination for
substantial evidence].) Instead, we conclude the Board’s own
expert declaration does not demonstrate good cause.
Additionally, we have relied on Patient 1’s declaration only
insofar as Patient 1 states other physicians prescribed
phentermine and clonazepam, information also available on
Patient 1’s CURES report, which the Board indicated it
accessed.10
10 Respondent represents the Board reviewed the CURES
prescription drug database prior to commencing its investigation.
22
Finally, we do not agree with respondent that “Patient 1
tendered her medical condition by becoming a party to this action
and submitting a declaration . . . .” First, respondent does not
show it raised this issue in the trial court and consequently, that
the issue is even preserved for our review. On its merits, “[T]he
tender doctrine, codified at Evidence Code sections 996 and 1016,
‘compels disclosure only in cases in which the patient’s own
action initiates the exposure.’ [Citation.]” (Darab Cody N. v.
Olivera (2019) 31 Cal.App.5th 1134, 1141.) Here, Patient 1
intervened just to assert her “privacy rights,” which are
constitutionally protected. (Helios, supra, 89 Cal.App.5th at
p. 360.) Additionally, the Board, not Patient 1, tendered the
issue of Patient 1’s medical condition by broadly requesting
Patient 1’s records from 2015-2023.
DISPOSITION
The trial court’s order requiring Dr. Stephen Louis Nuccion
comply with the investigational subpoena is reversed. The trial
court is directed to enter a new order denying the petition for
compliance with the investigational subpoena. The parties shall
bear their own costs on appeal. The stay entered in the related
writ proceeding (case No. B342305) is dissolved.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
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