After 31 months of deliberations, on January 21, 2011, the Court of Appeals decided in a divided 4-3 decision in favor of the board in Maryland State Board of Physicians v. Harold I. Eist. The Court of Appeals upheld the board's reprimand and fine against Harold I. Eist (a psychoanalyst and child psychiatrist) for failing to cooperate with a lawful investigation conducted by the board and failing “to obey, timely, a subpoena for the production of certain patients' medical records in his possession.”
The court held that the board's action to reprimand and fine Eist be affirmed because Section 4-306 (b) of the Health-General Article of the Maryland Code expressly requires a health care provider to disclose the medical record in the context of an investigation without the consent of the patient, and neither Eist nor his patients exercised the prescribed legal remedies necessary to challenge the board's subpoena specifically, they did not file either a motion to quash the subpoena or a motion for a protective order. Ruling in favor of the board, the Court of Appeals reversed the judgments of two administrative law judges and three lower courts. The court did not address the important question of who owns or regulates information contained in the medical record, nor did it opine about the impact of its ruling upon confidentiality.
Eist was treating a mother and her two sons. The mother was in the midst of a contested divorce and custody battle with the estranged husband, an attorney. At the mother's request, Eist issued an affidavit attesting, based on his observations, that the mother was a competent caretaker for her children. Seven months later her husband filed a complaint with the board, accusing Eist of over-medicating his wife and sons.
Eist received a subpoena from the board on April 19, 2001, ordering him to produce “a copy of all medical records” of the mother and two children within 10 days. The board did not inform the mother or her children of the request for their records. Eist immediately called the board's representative and informed him that the complaint was false and that the complainant was an estranged husband involved in a contentious divorce proceeding. He also informed the board representative that, under standards of ethics, he could not release the records without the patients' consent. Eist consulted with counsel, who confirmed his belief that the records could not be turned over to the board unless his patients consented. The next day, Eist wrote a letter to the board restating that he believed the complaint was motivated by a bitter divorce proceeding. Eist, following the advice of counsel, also wrote a letter to the mother, informing her of the complaint filed by her husband and of the subpoena from the board; he explained that if she did not respond within one week he would be compelled to forward her complete medical record and the records of her two sons to the board.
In response to his correspondence with the mother, Eist received a letter from the attorney representing the two sons, indicating they would not waive their right to confidentiality. He also received a separate letter from the mother, stating that she would not consent to the release of her medical records.
Imagine being in Eist's position. The board commands you to release your patients' medical records and informs you, contrary to your professional ethics, your own sense of right and wrong, as well as advice from counsel, that your patients' consents are unnecessary and irrelevant. You inform your patients about the subpoena and your patients are emphatic that they do not want you to share their private information with the board.
In sorting out ethical and legal obligations, Eist believed that it was his ethical duty to maintain confidentiality. He considered the possible harm that might occur to his patients as a result of disclosure. In addition to state laws such as Section 4-306(b) of the Maryland Code, he considered landmark cases that protect patient confidentiality such as Jaffe v. Redmond. He conferred with trusted colleagues regarding professional ethics and his obligations to his patients. He tried to be responsive to the board. In consultation with highly respected and competent counsel, he initially delayed in complying with the subpoena.
On July 7, Eist received a response from the board again demanding production of the medical records, this time within 48 hours. The letter reminded Eist that in accord with Maryland statute, provision of records is not contingent upon the consent of his patients. On July 11, Eist's attorney wrote to the board and related the history of the
Graham L. Spruiell, M.D., is co-chair of the Committee on Government Relations and Insurance. He participates in the Program in Psychiatry and the Law and has an interest in confidentiality as the basis of trust in the doctor-patient relationship.
matter and informed the board that he wanted to cooperate, but that all of his patients had asserted their confidentiality rights. His attorney added that it should not be Eist's responsibility to explain to his patients, that in relation to a board investigation, their consent was not necessary.
Eist informed his patients about the letter from the board, and said that he wanted, “to try and bring this matter to a close.” He notified his patients a second time that he was being compelled to make their entire medical records available, unless they indicated that they would obtain a court order to prevent him. In a third letter on July 16, Eist specifically requested, in a nine-page single spaced letter, a response regarding the subpoena, given his quandary about ethical versus legal obligations. Eist was making an effort to be responsive to the board, but the board was not being responsive to Eist in the respect that it disregarded his legitimate questions about responsibilities to his patients. Eventually, Eist did agree to forward the records, when his patients failed to obtain a court order to prevent him. A peer review quickly determined that the complaint was false, as Eist had said. The board, however, continued to sanction Eist for his lack of prompt compliance with the subpoena.
Eist successfully challenged the board's reprimand and fine, whereupon the board “doggedly appealed,” losing its case four more times before finally succeeding in the Court of Appeals. The board prevailed by a single vote, reversing five decisions of the lower courts and affirming the board's complaint against Eist. Until this holding, the burden had been on the state to show how and why the patient's right to privacy should be abrogated without the patient's consent.
From the point of view of physicians and other clinicians, it might be an overstatement to say that this decision eliminates the right of confidentiality with respect to board investigations, but it does damage this right. Physicians now must assume the burden of wrestling with the ethical dilemma about whether to comply with the subpoena or to take legal action to quash the subpoena. Upon receiving a subpoena from the Board of Registration, physicians practicing in Maryland should carefully consider their options and consider legal advice and assistance from professional organizations before responding.
When a clinician receives a subpoena that advises the clinician that a patient's records can be legally released without the patient's consent, a clinician might be tempted to comply, even if it meant breaching a patient's confidentiality. Compliance with the board's subpoena might seem more attractive than investing resources in the legal system to quash a subpoena, or alternatively urging the patient to quash the subpoena. In either event there is the risk of antagonizing the board, the patient, or both. An unintended consequence of this decision may be that it encourages clinicians to act against their ethical code by providing an incentive in the direction of breaching their patients' confidentiality. This decision is troubling, both because the clinician is in the impossible role of serving two masters with mutually exclusive demands, but also because it leaves no room for discretion when it comes to matters of conscience and professional ethics.
From the point of view of patients, it might also be an overstatement to say that as a result of this decision, this is the end of confidentiality. Nevertheless, it is patients who will now be expected to assume a new burden. They will be faced with either allowing a breach of their personal information or hiring an attorney to quash the subpoena; that is assuming they are familiar with the statute and can afford an attorney. It is troubling that the board did not inform the patients that their records were being sought for purposes of an investigation, as if this information by default belonged to the board or to the physician, and not to the patients, and as if the patients' wishes and Eist's ethical duties were not worthy of consideration.
Patients also assume a burden in terms of a potential loss of trust in the clinician-patient relationship. If confidential information is disclosed by the clinician according to Section 4-306 (b), and if patients conclude that their clinicians no longer have control of the information that they have entrusted to them, they might be more reluctant to seek treatment and to be candid about ailments, knowing that it is possible that the board could access their protected health information, regardless of what the clinician believes is ethical, and regardless of what the patient wants and decides.
Given the possibility that this decision could become a precedent and be followed in similar cases in other states, it might be practical in the course of discussing the usual limitations of confidentiality with patients to include some reference to the rare event of a board investigation, even though no psychoanalyst will savor reading a Miranda-like warning to a patient. The statute, the board's action, and the decision of the Court of Appeals together signal major shifts in the triangular relationships of patient and physician, patient and board, and physician and board—such that a patient's expectation for confidential treatment can no longer be assured. After a 10-year battle, Eist will now have to petition the United States Supreme Court, his only legal remedy. The next step will be to rally the 28 professional and privacy organizations (including our own Association) that supported him from the start and will no doubt support him again. He is greatly admired by patients and colleagues for his willingness to fight for the rights of his patients.
Special thanks to Jim Pyles for his invaluable legal expertise, president-elect, Robert Pyles, and TAP editor-in-chief, Janis Chester, all of whom have been involved in the Eist case from its beginning.