Maryland Court of Appeals Weighs Patients’ Privacy Rights

By Steve Lash

The state’s compelling interest in protecting all Marylanders from medical wrongdoing generally trumps an individual’s right to privacy in his or her medical records, an assistant attorney general told the Court of Appeals Tuesday.

That interest enables investigators to force a doctor who is under investigation to release patient files to them, Assistant Attorney General Steven M. Sullivan said.

But a lawyer for a Bethesda psychiatrist argued that patient privacy is protected by the U.S. Constitution and years of sound medical practice. Psychiatric patients, who reveal their innermost and darkest secrets to their doctors, will forego the candor necessary for their care if their confidences are not kept by their physicians but turned over to the state, attorney Alfred F. Belcuore, a partner in the Washington office of Montedonico, Belcuore & Tazzara P.C., told the judges.

State investigators cannot subpoena a physician’s patient records until the agents have exhausted all other investigative avenues, he added.

Privacy rights

Sullivan urged the high court to reinstate a $5,000 fine and a reprimand against psychiatrist Harold I. Eist for failing to comply with the Maryland State Board of Physicians’ request for the medical records of patients he had allegedly overmedicated. The allegation of substandard care was eventually dismissed.

The complaint came in early 2001 from a man who said his estranged wife and one of their two sons had been medicated by the doctor to the point that she became psychotic, seriously anxious and depressed and the boy had become increasingly agitated. The man and his wife were in heated divorce and child-custody proceedings at the time of his allegations, Eist said.

The board issued Eist a subpoena, seeking the medical records immediately. The doctor surrendered the medical records about a year later after getting the patients’ consent. The board submitted the records to a peer-review board, which concluded that the allegation should be dismissed.

The board, however, pursued its penalty against Eist, saying that his delay in surrendering the documents constituted noncompliance with its request. The agency added that its compelling investigative interest in the medical records trumped the doctor’s claim that his patients’ right to privacy forced him to disregard the board’s subpoena.

Eist’s argument has won before administrative law judges, the Montgomery County Circuit Court and the Court of Special Appeals, prompting the board to seek review before Maryland’s highest court.

Inferior interests

During the Court of Appeals session, several judges openly sought to resolve whether the investigators’ interest in getting documentary evidence to support or refute an allegation generally outweighs a doctor’s desire to keep patient records confidential.

For example, Judges Lynne A. Battaglia and Irma S. Raker asked whether doctors must seek a judicial order to quash the subpoena or if investigators must ask a judge to compel recalcitrant physicians to surrender the documents. The party that needs a judicial order is the one with the presumptively inferior interest, which is why it would need a court’s help, the judges said.

Sullivan, arguing for the board, said the state Medical Practice Act clearly places the burden on doctors either to produce the records or seek a court order to quash the subpoena. The law puts the purposes of the board, which licenses, regulates and disciplines physicians, ahead of the doctors’ desire to protect patient confidentiality, he said.

“[The board and the doctor] are not equal and they’re not supposed to be” under the statute, Sullivan said.

“You [the doctor] are compelled to turn over the records promptly” absent a court order, he added. “The only way any of us have to override a statutory mandate is to go to court.”

Reliable records

Sullivan said medical records are the “lodestar” for investigators because they contain information about the doctor’s treatment as it is dispensed and does not rely on the potentially biased or inaccurate recollections of physicians or patients.

“There’s really no substitute for them,” Sullivan said of medical records.

Therefore, doctors who start “taking the law into their own hands” by not obeying the board’s request for the records obstruct the state’s compelling interest in investigating claims of medical wrongdoing, Sullivan said.

“If you allow physicians to play chicken with the board … you invite noncompliance” with its regulation of the medical profession, he added.

But Belcuore, Eist’s attorney, said the patients’ right to privacy in their records places the burden on the board to enforce its subpoena through the courts if a physician declines to comply. Belcuore said that the board inappropriately sought to enforce its subpoena not through the courts but “through the back door” of fining and reprimanding Eist for refusing to comply.

In urging a court to enforce a subpoena, a state medical board must show that its compelling interest in investigating the alleged wrongdoing trumps the patients’ privacy right, he said.

The board must also show that the information in the records is essential to the investigation and cannot be acquired by “less intrusive means,” such as by interviewing the patients or their family members, steps the board never tried in Eist’s case, said Belcuore.

The case is Maryland State Board of Physicians v. Eist, Sept. Term 2007, No. 110.

Originally published by Steve Lash.

(c) 2008 The Daily Record (Baltimore). Provided by ProQuest Information and Learning. All rights Reserved.