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Daryl Purpera

The state medical examiners board is asking a Baton Rouge judge for guidance on whether it must comply with a directive by the Louisiana legislative auditor to turn over all of its records so state auditors can examine them.

The Louisiana State Board of Medical Examiners has raised doctor-patient and attorney-client privileges in a petition for a declaratory judgment, and also says it has medical and criminal history records in its possession that are privileged or confidential.

"It's a performance audit to examine the board's performance with its stated mission, policies and practices," Legislative Auditor Daryl Purpera said in an interview Thursday when asked if his office has specific concerns about the board or if he merely wants to conduct a routine audit.

Purpera described the board's filing last week in the 19th Judicial District Court as a "friendly petition."

"They feel like they can't give us the records. We feel like the law is on our side," he added.

Purpera said his office is entitled to all records "confidential or otherwise," but stressed his office would not publicly release information deemed confidential.

In its petition, the board says representatives of the board and legislative auditor met earlier this month and "amicably discussed the challenge presented by the Board's desire to fully honor the Legislative Auditor's appropriate and lawful effort to conduct a performance audit of the Board, and the Board's legal and ethical obligations to maintain the doctor-patient privilege and other protections over records in the Board's files."

After that meeting, the board decided to seek the court's guidance.

The board, represented by New Orleans lawyers Don McKinney and Raymond Ward, argues in its petition that it frequently obtains medical records of a licensee's patients when investigating complaints against licensee. Those records are privileged under Louisiana law, the board says.

"The evidentiary doctor-patient privilege belongs to the patient whose records are in the Board's possession, and not to the Board," the petition states.

In addition, any records of the board's confidential communications with its attorneys in investigative and litigation matters are subject to the attorney-client privilege, the board argues.

The board also is authorized to order a licensee to undergo a mental or physical examination when it reasonably believes the licensee's fitness and ability to practice medicine may be impaired by mental or physical illness, including substance abuse. Any records related to those examinations are privileged under state law, the board says, and federal law comes into play when the exams concern possible substance abuse.

Criminal history records of applicants that are obtained from the FBI cannot be disclosed under federal law, the board's petition states further.

The matter has been assigned to state District Judge Mike Caldwell.

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