“A shocking case” that was “the height of administrative arrogance,” so said one of the three judges in Maryland Board of Appeals vs. Eist. He told the state's attorney: “However this case is decided, you should go back and tell your bosses that this is how the Court of Special Appeals views their actions.”
This was Harold Eist's fifth court appearance to defend his patient's right to privacy and his duty to practice ethically. As you may recall, Eist is a psychoanalyst and child psychiatrist practicing in Bethesda, Md. His ordeal began in 2001 when the estranged husband of his patient submitted a complaint against him to the board. Eist had been treating a mother and two children, and attested to her fitness as a parent during a bitter divorce. Soon after that, the complaint was filed, charging him with overmedicating the mother and children.
Since that time, the complaint was repeatedly found to be without merit both by two courts and peer review. Nevertheless, the board persists in its prosecution of Eist, charging him with failure to cooperate with their investigation.
The American Psychoanalytic Association was among 28 amici, representing professional organizations, patient advocacy groups, and privacy watchdog groups supporting Eist's commitment to professional ethics. Representatives from many of the groups filled the courtroom, and were heartened by the judges citing the amicus brief.
The judges' thorough knowledge of the details of this five-year saga impressed the courtroom. They had scrupulously reviewed every twist and turn in this tortuous ordeal, reviewing the primary materials as well as the subsequent legal documents submitted by the attorneys. The judges were confident that the initial complaint was a transparent effort to influence a domestic dispute over custody, and thought it had little or no face validity. They challenged the board on their repeatedly “absolutist” actions in demanding the entire medical record regardless of the merit of the complaint, and over the patient's objection.
In state after state, renegade professional boards are operating without oversight, without checks and balances.
The judges pointed out that much of the record was in fact made public at the child custody hearing, and that there was no need to obtain the patient record, since the court transcript was public. The state's attorney defended the board's demand for the entire record in every case by saying that the board is busy and understaffed. When asked, the state's attorney reported that of the 970 complaints received in one year, approximately 3 percent were found to have merit. The judges found it “frightening” that the board demanded the release of the entire record in all these cases for so small a yield, and questioned the board's judgment in demanding entire records before any preliminary investigation was done.
The judges were so familiar with the material and the process that they succinctly asked the state's attorney to demonstrate how Eist might have both protected his patient's rights and cooperated with the board. The state's attorney said that he could not think of anything that Eist could have said and that the doctor “had a tough row to hoe.” In spite of the judges clarifying that the board placed Eist in an impossible position, the state's attorney showed no interest or curiosity in how the board might proceed differently in the future. The state's attorney was indifferent to the fact that this false complaint produced a witch hunt, wasting the taxpayers' money, and costing Eist thousands of dollars and years of anguish.
As gratifying as it was to hear the judges take the state's attorney to task, there is no guarantee of victory. The judges raised the question as to whether this court was the valid forum to decide on issues concerning the U.S. Constitution and its application to state law and procedures. As we saw in the HIPAA suit, where the judges seemed equally favorable to our arguments, they ruled against us on narrow legal grounds. We hope that these judges will have the courage and wisdom to uphold the principles of professional ethics and Constitutional rights to privacy embodied in this case. Regardless of the outcome, there is likely to be one more court hearing, at the highest court in Maryland.
Although the key issue in this case is the privacy of mental health records, it is of national importance for another reason, as well. In state after state, renegade professional boards are operating without oversight, without checks and balances. For both these reasons, the decision in this case will be a significant precedent in Maryland and a persuasive precedent, throughout the country. By participating as an amicus in this case, the American Psychoanalytic Association is working to protect our patients and our profession.
Bob Pyles, M.D., is chair of the Committee on Government Relations and Insurance and a past president of APsaA.