Court of Appeals says doctor cannot ignore subpoena

A doctor‘s desire to protect his patients’ confidentiality does not enable him to essentially ignore a state licensing board’s subpoena for documents during an investigation of the treatment he provided, Maryland‘s top court ruled Friday.

In a 4-3 decision, the Court of Appeals said Maryland law required psychiatrist Harold I. Eist to acknowledge receipt of the subpoena and move to have it quashed by a court if he believed compliance would violate his duty to safeguard patient confidences.

The sharply divided court reinstated the Maryland State Board of Physicians‘ $5,000 fine and reprimand against Eist for failing to comply with the board’s request for medical records of patients he is accused of overmedicating. The allegation of substandard care was eventually dismissed.

Eist, who practices in Bethesda, had successfully argued in lower courts that he had no legal obligation to respond to what he called an improper subpoena calling on him to violate doctor-patient confidentiality.

But the Court of Appeals said the state’s Health-General Article requires doctors to seek to quash, rather than ignore, board subpoenas they believe improper.

“This is the route chosen by the General Assembly for the resolution of constitutional or other objections to the subpoena,” Judge John C. Eldridge wrote in the court’s majority opinion. “[T]he General Assembly did not provide that the health care provider could refuse to comply with the subpoena, fail to file a motion to quash or a motion for a protective order, and later, in a disciplinary action, defend on the ground that the patient’s privacy rights were infringed by the subpoena.”

Eist received a 2003 Profile of Courage award from the American Psychiatric Association for having resisted the board’s request for patient records. The doctor, who served as APA president from 1996 to 1997, did not return a telephone message seeking comment on the court’s decision.

His appellate attorney, Alfred F. Belcuore, declined to comment Friday afternoon, saying he had not had a chance to read the decision. He is with Montedonico, Belcuore & Tazzara PC in Washington, D.C.

Assistant Maryland Attorney General Thomas W. Keech said the decision sends a message to doctors who receive subpoenas.

“You have to either comply or go to court,” said Keech, who serves as counsel for the board.

The complaint against Eist came to the board 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 a heated divorce and child-custody proceedings at the time of his allegations, Eist has said.

The board subpoenaed Eist in April 2001, seeking the medical records. He did not surrender the documents until about a year later, and only after getting the patients’ consent.

The board submitted the records to a peer-review panel, which in November 2003 concluded that Eist had prescribed the medications appropriately.

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

Two administrative law judges agreed with Eist and recommended that the board not penalize him. When the board rejected the recommendation, Eist appealed successfully to the Montgomery County Circuit Court.

The intermediate Court of Special Appeals also agreed with the doctor, prompting the board to seek review by Maryland’s highest court.

Joining Eldridge’s opinion in the board’s favor were Judges Glenn T. Harrell Jr., Lynne A. Battaglia and Clayton Greene Jr.

Eldridge, a retired Court of Appeals judge, participated in the case by special assignment.

In dissent, Judge Irma S. Raker said Eist should not have been penalized, as he was following the advice of his “highly respected and competent attorney” before the board. The lawyer, Armin U. Kuder, advised Eist not to respond to the subpoena.

“Under the circumstances presented herein, and whether a doctor must file a motion to quash a subpoena or simply may decline to provide the medical records, it seems to me that a physician should be able to rely upon and follow the advice of his attorney,” wrote Raker, a retired judge who, like Eldridge, was specially assigned to the case.

Kuder, of Kuder, Smollar & Friedman PC in Washington, D.C., did not return telephone messages seeking comment.

Raker was joined in dissent by Chief Judge Robert M. Bell and retired Judge Dale R. Cathell, who was also sitting by special assignment.

WHAT THE COURT HELD

Case:

Maryland State Board of Physicians v. Eist, CA No. 110, Sept. Term 2007. Reported. Opinion by Eldridge, J. (retired, specially assigned). Dissent by Raker, J (retired, specially assigned). Filed Jan. 21, 2011.

Issue:

May a doctor essentially ignore a licensing board’s subpoena for patient records based on doctor-patient confidentiality?

Holding:

No; a doctor not wanting to surrender the records must move to quash the subpoena.

Counsel:

Steven M. Sullivan for petitioner; Alfred F. Belcuore for respondent

RecordFax # 11-0121-20