No warrant, no searching doctors' offices, says Kentucky Supreme Court

Just how far can criminal investigators go when they show up on a physician's doorstep to search his office?

Not one step further if they don't have a warrant, the Kentucky Supreme Court recently ruled. Nor can investigators enter under the auspices of the state medical board to avoid that requirement, the court said.

The state accused family physician Fortune J. Williams, MD, of overprescribing pain medications to patients seeking the drugs. A Lewis County jury in 2004 found him guilty and sentenced him to 20 years in prison. Dr. Williams has denied the allegations throughout the process.

Kentucky's high court in November 2006 overturned that conviction, finding that state investigators had violated Dr. Williams' constitutional rights when they invaded his clinic without a search warrant. The court ordered a new trial, where the evidence collected in the illegal search cannot be used.

At the time of the investigation, state law gave state medical board agents the authority to do administrative searches of doctors' offices at any time without a warrant or a subpoena and required doctors to produce patient files or evidence. But the statute didn't apply to law enforcement, the court noted.

"In plain words, neither [Kentucky's Constitution] nor the Fourth Amendment [of the U.S. Constitution] permits administrative statutes or agencies to be utilized or exploited as a means to conduct searches and seizures for law enforcement purposes without first obtaining consent or a valid warrant," the opinion states.

The Kentucky Attorney General and the Office of Drug Control Policy began their investigation of Dr. Williams in January 2001 and filed a grievance with the Kentucky Board of Medical Licensure that July.

The board asked state detectives to prepare a list of patient files they needed. In September 2001, state investigators, accompanied by a board inspector, entered Dr. Williams' clinic without a warrant, seizing patient files and other items.

Margaret F. Case, Dr. Williams' attorney, said authorities not only overstepped their bounds but also put patient privacy in jeopardy.

"They engaged the services of the medical board thinking they could hide behind the statute that allowed such broad powers," said Case, general counsel of the Kentucky Dept. of Public Advocacy.

"When law enforcement told the medical board what files to seek, they added some red herring names to the list to throw off people at the clinic, and some of the files seized were of patients who(m) there was no suspicion about at all," she added.

State officials declined to comment.

They argued in court papers that the warrantless search was valid because they were jointly investigating a complaint filed with the state medical board.

The Kentucky high court rejected those claims, saying the state was clearly doing a criminal investigation of its own that began six months before the medical board got involved.

Board General Counsel C. Lloyd Vest II said, "This particular case was a joint investigation, which is true of many prescribing cases. We're looking at the same activity but from different perspectives and different statutes."

In 2004, the board revoked Dr. Williams' license as a result of its own investigation, Vest said.

The board was not a party to the criminal case.

Because the court took up the constitutionality of the search, Vest said that legislators this year changed the board statute to require either consent or a warrant or subpoena before taking any records.

Physicians' rights

Legal experts say warrantless searches are rare. But at a time when the government is getting more aggressive in its investigations, attorneys say it is not uncommon for state regulators and law enforcement to collaborate in a search that can upset a doctor's practice.

"We often see these task forces that involve various agencies and prosecutors who rely heavily on the state's ability to come in often and at any time, and it's very disruptive," said W. Thomas Dillard, a criminal trial specialist with Tennessee-based Ritchie, Dillard & Davies PC.

"But at what point does it become unreasonable?" he asked.

Even what may seem like a routine visit from managed care auditors can prove troublesome, Dillard said.

Still, doctors are obligated to comply with law enforcement's legal requests, attorneys warn. But to protect their practices, doctors need to know who is knocking on their door.

"Then call a lawyer, because different standards apply in different investigations," said Virginia health law expert Julia Krebs-Markrich of Reed Smith.

A search warrant, which signals a criminal investigation, demands immediate response, she explained. But as the search begins, doctors still can take a moment to copy the document and contact legal counsel, or designate someone in the office to do so.

Doctors also can send nonessential employees home, because a warrant does not necessarily give investigators the right to interview people, she said.

Donna G. Klein, a Louisiana health lawyer with McGlinchey Stafford PLLC, also recommended that physicians "stay on top of what [investigators] are taking."

A subpoena generally will give doctors time to produce medical files, she said. But when facing a search warrant, Klein suggested that doctors get a copy of it and any accompanying list of documents investigators are seeking. Getting an inventory of what agents actually take and comparing the lists is also a good idea, as well as copying any original files investigators walk away with, she said.