Issue: Chalice Zeitner

Fraud investigations trump Arizona’s physician-patient privilege, the Arizona Supreme Court ruled Monday.

In a unanimous decision, the justices upheld the conviction and 10-year prison term of Chalice Zeitner on charges of defrauding the state’s Medicaid program, identify theft and fraud. They rejected her claims the testimony and medical records of her doctor could not be used in her trial accusing her of faking a claim of cancer in order to obtain a state-funded abortion.

Justice John Lopez, writing for the high court, acknowledged that the statute that protects patient communications with a physician apply in criminal cases. That, he said, is designed to “ensure that a patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.

Lopez also said that same law also protects patient medical records.

But the court also said that privilege is not absolute, citing examples like requiring doctors to disclose wounds that may have resulted from illegal activity and evidence of contagious or infectious diseases.

In this case, he said, physicians providing services under the Arizona Health Care Cost Containment System, the state’s Medicaid program, are required to report “any cases of suspected fraud.” And the agency is required to investigate.

The charges against Zeitner stem from her 2010 claim that she needed a state-financed abortion because she discovered she was pregnant after recently undergoing extensive radiation and chemotherapy treatments for cancer. AHCCCS pays only for abortions in cases of the life or health of the mother.

Part of that scheme also included providing the obstetrician a letter purportedly written by a doctor from an out-of-state hospital who Zeitner claimed had treated her for cancer. That letter recommended she receive an urgent abortion to relieve third-term, life-threatening conditions to the patient.

The obstetrician, relying on that information, concluded the abortion was necessary to protect Zeitner’s health.

The plan began to unravel a year later when the obstetrician, performing a cesarean section on Zeitner for another pregnancy, found no physical evidence to support her previous claims of uterine cancer. The obstetrician reported his suspicions about her to the health plan which forwarded the matter to AHCCCS for investigation.

She eventually was indicted on 11 charges including defrauding AHCCCS, which otherwise would not have paid for the abortion. Prosecutors also charged her with identity theft and forgery for impersonating a doctor who recommended that she receive an abortion.

Over her objections, the trial judge allowed her medical records into evidence and her physicians to testify.

In Monday’s ruling, Zeitner argued that decision was contrary to law.

Lopez pointed out that the federal government, which picks up most of the cost of the AHCCCS program, has some specific requirements for disclosure of patient records. He also said there are some parallel state laws and rules that allow for release of information for conducting or assisting in an investigation, prosecution or civil or criminal proceedings.

The court acknowledged that the question of the state law protecting physician-patient privilege is a bit trickier.

While Lopez said state law spells out specific exemptions, like the one for reporting wounds, the Legislature has not enacted one specifically covering this kind of case. He said, though, that it appears that was the intent of the Legislature.

Lopez pointed out that there are other laws like the one requiring doctors to report suspected AHCCCS fraud and another which gives AHCCCS the power to “examine any person under oath” and “compel the production of any record … necessary to support an investigation.

“We cannot infer that the Legislature, in granting such broad investigatory authority, intended the privilege to stand as a bulwark against AHCCCS fraud investigations,” he wrote.

Editor’s note: This story has been updated from its original version to include more information.