“And remember, where you have a concentration of power in a few hands, all too frequently men with the mentality of gangsters get control. History has proven that. All power corrupts; absolute power corrupts absolutely.” So wrote Lord Acton in his famous 1887 dictum.
One hundred and twenty years later, this sentiment reverberates throughout the opinion written by Judge Deborah S. Eyler of the Maryland Court of Special Appeals. The unanimous ruling in favor of Harold I. Eist in Maryland State Board of Physicians v. Harold I. Eist, M.D., is the fifth decision in support of his stand for patient confidentiality and professional ethics. In over five years of litigation, an administrative law judge (twice), two separate Maryland circuit judges, and now three appellate judges have held that the prosecution of Eist was unfounded.
The board's attempt to discipline Eist arose out of a bitterly contested divorce and custody battle in which he was the treating psychiatrist for three members of a family (the wife and two of the children). The father (an attorney) complained to the board that Eist was over-medicating these three patients and had behaved rudely toward him. In keeping with their policy, the board automatically demanded the entire charts on all three patients without considering the merit of the complaint or the motivation of the father. Indeed, it later developed that the board was prepared to comply with the father's demand that the charts be turned over to him.
Acting in accordance with professional ethics, Eist contacted his patient to obtain permission, which was refused by the patients and their attorneys. Eist notified the board and was told, “For your information, receipt of those medical records is not contingent upon the consent of the patients.” Because he would not release the records until the patients allowed him to do so, Eist was charged with failure to cooperate with a lawful investigation.
At the heart of this case is the Maryland board's assertion that its power is absolute, not answerable to patients, physicians, legal precedents, or professional ethics. The board saw no need to directly notify the patients that their charts were subpoenaed, nor did the board see fit to conduct a less invasive investigation, such as interviewing the patients or requesting the relevant sections of the chart (e.g., the record of medications prescribed). The board ignored communications from the patients indicating that the charges were false, and that the treatment was satisfactory. It remained the board's position that their issuance of a subpoena and the obligation of compliance were not open to challenge or legal review.
The court's decision closely followed the reasoning in the amicus brief submitted by 28 organizations representing mental health professionals, patients, and privacy protection groups, including the American Psychoanalytic Association, the American Psychiatric Association, the National Association of Social Workers, and the Patient Privacy Rights Foundation. In keeping with previous court rulings in this case, the opinion was sharply critical of the board's conduct and legal reasoning, and laudatory toward Eist for his principled stand in protection of his patient and professional ethics.
Perhaps the most heartening message from the decision of this court was the respect and understanding on the part of the judges for the work we do with our patients. In language strongly reminiscent of the landmark Jaffee-Redmond Supreme Court decision, which reaffirmed the therapist-patient privilege, Judge Eyler stated, “In fact, the psychiatrist-patient relationship depends in large part upon the patient's having the trust in the doctor and confidence in the privacy of the therapeutic relationship that will foster a willingness to disclose innermost thoughts. That relationship can be damaged merely by the threat that the records containing the patient's most personal thoughts will be turned over to others to examine.”
The power of the medical board is not absolute. Like other American governmental agencies, it is subject to checks and balances. While the board has the right to issue a subpoena for medical records, patients and clinicians have the right to protest and challenge the subpoena.
The court clarified that the right of the state to obtain privileged information must always be balanced against the individual's right to privacy. The state is required to evaluate a patient's constitutional privacy interests and also to apply the “Westinghouse factors” (a landmark court case which outlined a balancing test) before it issues a subpoena.
The patient must be notified that a subpoena, or a request for records, has been issued by the board.
If the patient or physician challenges a request for medical records, the burden rests with the board to prove that its need to invade privacy outweighs the patient's right to privacy. It is then incumbent upon the board to seek an independent court ruling in which the Westinghouse factors will again be applied in a legal setting. In the words of Judge Eyler, “…a balancing analysis that takes the Westinghouse factors into consideration is the proper standard for weighing “individual privacy interests in medical records against competing state interests in those records,” and that “[w]hether a compelling state interest can be shown in order to override an individual's privacy interest is to be determined on a case-by-case basis.”
Bob Pyles, M.D., is chair of the Committee on Government Relations and Insurance.
The court explicitly recognized a federal right to privacy embedded in the Constitution of the United States.
The Maryland Court of Special Appeals found that the initial complaint against Eist was without merit; application of a balancing test would have failed to result in a subpoena for the patient records. Therefore Eist had not failed to cooperate with a lawful investigation—the investigation itself was not “lawful.” The board has one more opportunity to request review from the highest court in Maryland. According to legal counsel, the carefully detailed 56-page opinion of the Court of Special Appeals can easily bear scrutiny from that court. Such an opinion would only further strengthen the privacy rights of Maryland's citizens.
The implications of this case extend beyond the state of Maryland. Boards and professional associations have been carefully observing this case which further establishes a model for a just balance of power between professional boards and individual patients and clinicians. Lawmakers in all 50 states and Congress will benefit from this reaffirmation of a patient's right to privacy. This is of particular importance given the rush to embrace electronic health records without adequate privacy protection.
Returning to Lord Acton's dictum, this court has affirmed the importance of the principle of checks and balances, particularly between the interests of government versus the rights of individual citizens. Acton seems to have intuitively understood that unchecked power almost inevitably leads to narcissistic regression and abusive behavior. As James Madison cogently stated, the primary purpose of the Constitution is to protect citizens from their government. The Maryland Court of Special Appeals clearly agrees.
For the complete text of the decision, see Website.courts.md.us/opinions (Court of Special Appeals, 9/13/07)
Editor's Note: As noted in the cover story, this case will be heard on appeal by the highest court in Maryland. TAP will continue to follow the case closely.