Dr. K. v. State Board of Physician Quality Assurance

CATHELL, Judge. This is an appeal from an order of the Circuit Court for Montgomery County denying a Motion to Quash Subpoena or in the Alternative for a Protective Order, and a denial of a ¹⁰⁶ Motion for Reconsideration. The State Board of Physician Quality Assurance (the Board), appellee, received two formal written complaints that Dr. K (a psychiatrist licensed to practice in Maryland) and his former patient (“patient A”), 1 both appellants here, were having a romantic relationship, and that Dr. K was depressed and abusing alcohol. The Board, pursuant to its legislative authority, initiated an •investigation and subpoenaed Dr. K’s records relating to patient A’s treatment.

Dr. K filed a motion in the circuit court to quash the subpoena. That motion was granted. The Board thereafter moved to rescind the order and for a hearing on the motion’s merits. The request for a hearing was granted.

The Board filed an opposition to Dr. K’s motion to quash and its own motion to compel compliance with the subpoena. Dr. K opposed that motion and the Board responded. A hearing was held, after which the court denied the motion to quash the subpoena, but stayed enforcement for thirty days pending a possible appeal. Patient A then entered the case, filing a Motion for Reconsideration, raising the constitutional issue of her right to privacy and requesting an order further staying the final judgment’s effect.

Both motions were denied. This appeal followed. 2 Appellants raise only one question on appeal: ¹⁰⁷ Does a patient’s constitutional right to privacy bar the disclosure of mental health records to the Board of Physician Quality Assurance when the patient asserts such a right upon patient’s physician being subpoenaed to produce those records to the Board of Physician Quality Assurance? It does not, and we shall affirm. Appellants’ question addresses only patient A’s right to privacy under the United States Constitution.

The Board preliminarily argues that, because the constitutional issue was first raised in a Motion for Reconsideration which was summarily denied by the trial court, it is not properly before this Court. It cites Dintaman v. Board of County Commissioners, 17 Md.App. 345, 350-51 , 303 A.2d 442 (1973), for the proposition that “nothing is better settled than the rule that a question as to the constitutionality of a statute will not be considered on appeal when not properly raised and decided by the lower court.” Dintaman supports that proposition, but deciding this appeal on jurisdictional grounds would likely result in additional litigation and appeals. We shall address the issue, because it was in fact raised below and because we may decide an issue if it will “avoid the expense and delay of another appeal.” Maryland Rule 8-131(a). Appellants also argue in their brief, as Dr. K argued below, that the statutes in question do not give the Board jurisdiction to regulate Dr. K’s behavior or to subpoena patient A’s records.

Although not clearly raised in the question presented on appeal, we shall address theses issues in the interest of judicial economy. Maryland Rule 8-131(a). ¹⁰⁸ Facts The complaints to the Board resulted from a visit to the complainants, both of whom are physicians and colleagues of Dr. K, by Dr. K’s estranged wife. She alleged that Dr. K was having a romantic relationship with a former patient and that he was depressed and drinking heavily. The complainants then visited Dr. K personally and discussed his wife’s charges.

After listening to Dr. K’s explanation of the events, which included an admission by the doctor that he was then maintaining a romantic relationship with patient A, they informed him that they would be filing a complaint with the Board because they felt that his relationship with a former patient violated professional ethical standards for a psychiatrist. The Board is a State regulatory agency that is legislatively empowered to license physicians in Maryland and to regulate the licensees. A weekly review panel meets to consider complaints and determine which complaints merit investigation. After reviewing the complaints against Dr. K, the panel determined that an investigation was appropriate.

The Board then issued a subpoena duces tecum, pursuant to its statutory authority, for all of the records in Dr. K’s custody and control concerning his treatment of patient A. Dr. K informed patient A of the request and asked if she wished to give her permission to release the records. Patient A refused. Dr. K then responded to the complaints in a letter to the Board, but refused to provide the subpoenaed records. According to the record, Dr. K has yet to be charged with any improper or illegal conduct.

He is merely the subject of an administrative investigation. The Board’s Authority Over Dr. K’s Actions. Initially, appellants offer two arguments as to why the Board has no authority to investigate this matter. They first argue that because Dr. K and patient A’s personal relationship began after the doctor-patient relationship terminated it is beyond the scope of the doctor-patient relationship and thus the Board’s authority “to ‘protect’ Patient A” is suspect.

In ¹⁰⁹ support, appellants cite McDonnell v. Commission on Medical Discipline, 301 Md 426, 483 A.2d 76 (1984). In McDonnell , the question was “whether a physician’s attempt to intimidate adverse witnesses scheduled to testify against him at a medical malpractice trial constitutes ‘[i]mmoral conduct of a physician in his practice as a physician’ in violation of [the] Maryland Code.... ” Id. at 428, 483 A.2d 76 . The commission found as a matter of law that Dr. McDonnell had violated the Code provision by having two medical experts contact the doctors scheduled to testify against him at trial in order to intimidate the doctors. Id. at 431, 483 A.2d 76 .

The Court of Appeals disagreed, holding that the conduct did not fall under the statute as it then appeared. The statute’s plain language restricted disciplinary action to “[ijmmoral conduct of a physician in his practice as a physician.” Id. at 435, 483 A.2d 76 (citing Md.Code Ann. Art. 43 § 130(h)(8) (1957, 1980 Repl.Vol.)). The legislature has since amended the relevant statutory language, enlarging the Board’s area of authority. That provision was recodified in 1981 Md.Laws, ch. 8, as Md.Health Occ.Code Ann. § 14-504.

The language in what is now Health Occupations article, section 14-404(a)(3), was amended in 1988 Md.Laws, ch. 109, to read: “(3) Is guilty of immoral or unprofessional conduct in the practice of medicine.... ” (Emphasis added.) Further, the Board has the power to initiate investigations upon receipt of a signed, written complaint, Md.Code (1991 Repl.Vol. & 1993 Cum.Supp.), § 14-205(a)(2) of the Health Occ. Article (Health Occ.) and powers that aid in conducting investigations, id. at § 14-401 et seq. Both parties in their briefs cite the American Medical Association, The Principles of Medical Ethics, section 2, annotation 1, as a probable basis for the Board’s belief that Dr. K’s behavior may be unprofessional. Suspected unprofessional conduct in his practice would give the Board statutory authority to investigate.

The Principle of Medical Ethics, section 2 states: ¹¹⁰ SECTION 2 A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception. Annotation 1 states, in full: 1. The requirement that the physician conduct himselfiherself with propriety in his/her profession and in all the actions of his/her life is especially important in the case of the psychiatrist because the patient tends to model his/her behavior after that of his/her therapist by identification. Further, the necessary intensity of the therapeutic relationship may tend to activate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control.

Sexual activity with a patient is unethical. Sexual involvement with one’s former patients generally exploits emotions deriving from treatment and therefore almost always is unethical. It is premature for us to decide whether Dr. K’s records indicate unprofessional conduct in his practice or a violation of the statute, and thus whether the Board has disciplinary jurisdiction, or whether patient A’s records are relevant to the ultimate issue the Board might have to address. That is the reason for the investigation.

Dr. K’s admission that he is having a “romantic relationship” with patient A, coupled with the statutory language and the statement of ethics is certainly a basis upon which to begin an investigation. An investigation is not a statutory violation or disciplinary action; it is used to determine if one has occurred and the other is necessary. We cannot say that the statute does not give the Board the authority to begin an investigation in this case. Second, appellants argue that patient A’s records should not be disclosed because she has not complained about Dr. K’s behavior.

If a patient’s complaint were necessary for the Board to investigate, there would never be full investigations in cases where the doctor was able to persuade the patient not to complain. The argument has no merit. ¹¹¹ We also consider the Board’s direct statutory authority to view the records. Maryland Code (1990 RepLVol., 1993 Cum. Supp.) § 4-307 of the Health-General Article (Health-Gen.) gives the Board the right to examine patient A’s records, and reads, in pertinent part: (h) ...

(1) A health care provider shall disclose a medical record without the authorization of a person in interest: (vi) 1. In accordance with a subpoena for medical records on specific recipients:[ 3 ] A. To health professional licensing and disciplinary boards[ 4 ] for the sole purpose of an investigation regarding licensure, certification, or discipline of a health professional or the improper practice of a health profession.... Further, § 4-307(h)(4) reads: This subsection may not preclude a health care provider, a recipient, or a person in interest from asserting in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure. A constitutional right to privacy, as we have said, was asserted.

We now address that issue. Privacy Right of Patient A in her Medical Records Under the United States Constitution “It is, of course, no longer open to question that the right of privacy is protected by the federal constitution and that where the right is applicable, regulation limiting it must be justified by a ‘compelling state interest.’ ” Montgomery County v. Walsh, 274 Md. 502, 512 , 336 A.2d 97 (1975), appeal dismissed, 424 U.S. 901 , 96 S.Ct. 1091 , 47 L.Ed.2d 306 (1976). See also Neville v. State, 290 Md. 364, 372-73 , 430 A.2d 570 (1981); Doe ¹¹² v. Commander, Wheaton Police Dep’t, 273 Md. 262, 272 , 329 A.2d 35 (1974). “And as courts have held, medical records are clearly within this constitutionally protected sphere.” In re Search Warrant (Sealed), 810 F.2d 67, 71 , cert. denied, 483 U.S. 1007 , 107 S.Ct. 3233 , 97 L.Ed.2d 739 (3rd Cir.1987). See also Whalen v. Roe, 429 U.S. 589, 598 , 97 S.Ct. 869, 875 , 51 L.Ed.2d 64 (1977); United States v. Westinghouse Elec.

Corp., 638 F.2d 570, 577 (3rd Cir.1980); Hodge v. Carroll County Dept. of Social Services, 812 F.Supp. 593, 600 (D.Md.1992); Shoemaker v. Handel, 619 F.Supp. 1089, 1105-06 (D.C.N.J. 1985). We believe that patient A has a constitutional right to privacy in Dr. K’s records of her psychiatric treatment. Whalen, 429 U.S. 589 , 97 S.Ct. 869 , is often cited for extending a constitutional privacy right to the disclosure of highly personal information. Whalen involved a New York State statute that required doctors to submit duplicates to the State of all prescriptions written for schedule II drugs.

The State recorded the information on computers and stored the copies, using the records to help reveal abuses in prescribing certain drugs. The law was challenged as unconstitutional on its face by a group of doctors and patients. Id. at 591-95 , 97 S.Ct. at 872-74 . After considering the State’s physical security precautions in protecting the data, and legislative prohibition against public disclosure, the Court concluded: Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.

Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy. Id. at 602 , 97 S.Ct. at 878 (footnote omitted). The Court further held that the New York statute’s impact is insufficient “to constitute an invasion of any right or liberty protected by the Fourteenth Amendment.” Id. at 603-04 , 97 S.Ct. at 878 ¹¹³ (footnote omitted). So while the right was recognized in Whalen , the State’s interest negated any exercise of that right.

In re Search Warrant (Sealed), 810 F.2d 67 , was decided upon facts analogous to the instant case. In Search Warrant, a physician was under investigation by the Federal Bureau of Investigation for insurance fraud. The FBI believed that certain patient records were relevant to its investigation. A United States Magistrate found probable cause and issued a warrant authorizing a search of the physician’s office and the seizure of certain specified records.

Id. at 69 . The day of the seizure, the physician filed a “Motion to Enjoin or, in the Alternative, for Relief From, Execution of Search Warrant” in federal district court. Id. The district court denied the motion, but ordered the record sealed and the information treated as confidential.

The physician then requested a stay of the order. That request was denied also. Id. Throughout the proceedings the physician was not under indictment, he was only being investigated.

The Third Circuit allowed the unusual appeal because any privacy interests the patients may have are immediately threatened by the government having obtained such highly sensitive personal information as may be contained in their medical files.... [A]ppellate review should not be postponed — and perhaps entirely foreclosed — by a rule which would make such review available only if and when the physician is indicted, prosecuted, or convicted. Id. at 70 . The Court, after balancing the recognized privacy right against the state’s interest, held that the “significant government interests in investigation clearly outweigh any individual privacy interests.... ” Id. at 73 . It considered, among other things, that the identities of the patients involved are already known ... and their privacy interests are thereby diminished.

Additionally, two separate mechanisms exist to guard against unauthorized disclosure. Initially, ... the district court’s ¹¹⁴ special directions operate to maintain the confidentiality of these records. Thereafter, ... presentation to a grand jury' will not lead to untoward dissemination. Id. at 72-73 (citation omitted).

There was also a statute expressly authorizing an administrative subpoena of medical files and a demonstrated need for government access to the records. We agree with the Third Circuit’s reasoning as applied to the case at bar. Patient A has a right to privacy in her medical records. That right, however, is not absolute; “[t]he individual privacy interest in the patients’ medical records must be balanced against the legitimate interests of the state in securing the information contained therein.” Id. at 71-72 .

See also New York State Ophthalmological Soc. v. Bowen, 854 F.2d 1379, 1389 (D.C.Cir.1988), cert. denied, 490 U.S. 1098 , 109 S.Ct. 2448 , 104 L.Ed.2d 1003 (1989); Westinghouse, 638 F.2d at 578 ; Hodge, 812 F.Supp. at 600 ; Doe v. Borough of Barrington, 729 F.Supp. 376, 382-83 (D.N.J.1990); Doe v. General Services Admin., 544 F.Supp. 530, 546 (D.Md.1982); Walsh, 274 Md. at 512-14 , 336 A.2d 97 . Westinghouse, 638 F.2d 570 , provides an analytical framework for balancing the competing rights and interests. There, the issue was whether certain employee health records could be turned over to the National Institute for Occupational Safety and Health without the employees’ authorization. Id. at 572-73 .

The Court stated, “Generally, the reporting requirements which have been upheld have been those in which the government has .advanced a need to acquire the information to develop treatment programs or control threats to public health.” Id. at 578 . In those cases where a court has allowed an intrusion into the privacy right in medical records “it has usually done so only after finding that the societal interest in disclosure outweighs the privacy interest on the specific facts of the case.” Id. After deciding that the employees had privacy rights in their medical records, the court specified several factors to consider in the “delicate task” of weighing the government’s competing interest. Id. ¹¹⁵ Those factors are: the type of record requested, the information it contains, the potential for