It did not matter if Dr. Harold Eist was right or wrong: The Supreme Court of the United States (SCOTUS) declined to consider his appeal. It was a blow to patient confidentiality. Consequently, in Maryland if there is a complaint by a third party to the medical board, the board can legally demand personal health information (PHI) from individual patients' medical records, without obtaining consent, even if the patient objects.
In the Eist case, the Maryland Board of Physicians investigated psychoanalyst and child psychiatrist Harold Eist after receiving a frivolous complaint from the estranged husband of his patient. Board investigators demanded that Eist disclose confidential records without his patient's knowledge or consent, information that could be used against the complainant's wife in a divorce proceeding.
Besides affecting patients, the Eist case also has implications for clinicians. Traditionally, if a third party requests or demands confidential information, with rare exception, clinicians would decline. This decision would be based upon professional ethics, the patient's right to confidential treatment and physician-patient privilege. The same privilege would exist if a third party requested or demanded protected information about a lawyer's client or a priest's penitent, although the legitimacy of such designations may be on the decline.
The board's demand was in conflict with everything Eist understood about his ethical obligations to his patient. It also contradicted recommendations by his legal counsel, advice tendered despite a Maryland statute permitting board access to medical records during an investigation. Eist conceded and eventually complied with the board's subpoena after informing his patient that he would do so unless she objected.
Graham L. Spruiell, M.D., is co-chair of the Committee on Government Relations and Insurance and a member of the Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Boston.
Nevertheless, Eist was fined for refusing to cooperate in a timely fashion. This disciplinary action was reported to the National Practitioner Data Bank.
Consider the disturbing implications that can be drawn: If a Maryland physician is contacted by the board, the physician must comply with its demand for confidential patient information, even if that compliance represents a violation of professional ethics, violation of fiduciary responsibility to the patient, and an act that could potentially harm the patient. In this scenario the ethics of the physician and the welfare of the patient are interdicted by statutory policies of the board.
An ethical dilemma meets a disquieting ending in Maryland: “My code tells me that I should not violate my patient's confidentiality, but the board informs me that according to statute I must do so during an investigation. To avoid being disciplined, it appears that I have little choice except to comply with the board's demand to disclose confidential information without my patient's consent.”
During the Vietnam War, the term, “conscientious objector,” was a common phrase. This phrase assumed that if someone was morally opposed to war, that person should not be forced into combat. Physicians have historically enjoyed similar rights of conscience. A physician, for example, cannot be forced to perform an abortion, participate in assisted suicide against his ethical beliefs, or engage in a treatment that he believes will be harmful. As a time-honored tradition, physicians have not been coerced into violating confidentiality, unless there was a subpoena from a judge or statutory requirement.
In the Eist case there was a statute that specifically allowed the board to access PHI during an investigation. Eist was disciplined for failure to comply soon enough, even though his hesitation was in line with his ethical beliefs and was a matter of weighing competing interests. He was disciplined for taking time to consider his ethical responsibilities before replying to the board, showing that mere consideration of medical ethics can be grounds for disciplinary action.
Will other state boards follow Maryland's lead? Given that the Federation of State Medical Boards filed an amicus in support of the Maryland Board against Eist, other boards bear watching. If our professional ethics are to retain their intended meanings, the Maryland statute should be overturned, and efforts in other states to enact similar legislation must be opposed by our professional organizations.
Despite huge financial and personal sacrifices to himself and his family over many years, Harold Eist heroically persevered in doing what he believed was right as a physician and right for the integrity of his profession, and ultimately what was right for his patients. The American Psychoanalytic Association has supported Eist in friend of court briefs, and he received a Profile in Courage Award from the American Psychiatric Association.
The Eist case is an important example of a psychiatrist weighing his responsibility to his patients and the board; but clinicians face similar dilemmas. As part of the Patient Protection and Affordable Care Act (PPACA), the Electronic Health Record (EHR) poses a tremendous threat to confidentiality and the clinician-patient relationship. The Health Information Technology for Economic and Clinical Health (HITECH) Act requires that physicians and other clinicians enter personal health information into the EHR. Failure to do so will result in penalties in the form of decreased Medicare/Medicaid reimbursements. Additionally, some states are mandating familiarity with the EHR as a requirement for licensure.
The dilemma that Eist faced may not be so far removed from our own experiences. We will be figuring out whether our primary responsibility is to our patients—or to our board overseers, payers, private insurers, and the government. This defining dilemma represents the most critical conflict of interest, a conflict that biases the clinician in favor of third parties over the patient, and threatens to undermine the clinician-patient relationship.
I suspect that most clinicians, if put in the position of Eist, would be willing to accept the board's reinterpretation of their “ethical duties” to their patients, as a way of avoiding disciplinary action for noncompliance. Similarly, if those same clinicians were informed that they were required to enter confidential information into the EHR in order to receive full compensation and maintain their licenses in good standing, most would likely comply rather than run afoul of the board.
I am not confident about the outcome if we keep moving in this direction, but there is still a small window of opportunity. Whatever happens with the PPACA and the EHR, if it can be legally established that the patient “owns” information contained in the medical record, information that was voluntarily proffered by the patient, and retains the right to safeguard that information, then the EHR can become patient-centered, a step beyond current technology. In a patient-centered EHR the patient (or surrogate) alone determines disclosure to intended recipients, like a bank account. If, on the other hand, the EHR comes to mean the breaching of millions of medical records in the cyber-ether, loss of confidentiality, and loss of trust in the clinician-patient relationship, then the EHR represents a giant leap backward.
The Committee on Government Affairs and Insurance (CGRI) gladly accepts a window of opportunity and will be working with Jim Pyles (APsaA's legislative counsel) on a Patient's Bill of Rights. We look forward to presenting that work to you in the next issue of TAP.