Maryland State Board of Physicians v. Eist

⁸⁸ DEBORAH S. EYLER, J. The Maryland State Board of Physicians (“Board”) received a written complaint against Harold Eist, M.D., a licensed psychiatrist, alleging that he was over-medicating three patients: the complainant’s estranged wife (Patient A) and two of their children (Patients B and C). 1 At the time, the complainant and Patient A were litigants in an acrimonious divorce case, in which Dr. Eist had submitted an affidavit supporting Patient A’s claim for custody. In response to the complaint, the Board issued a subpoena duces tecum commanding Dr. Eist to produce “a copy of all medical records of’ the three patients. When Dr. Eist informed the patients that their records had been subpoenaed, they invoked their federal constitutional right of privacy in the information in their records. Dr. Eist communicated that fact to the Board, as did counsel for the patients.

Neither the Board nor Dr. Eist nor the patients instituted any legal proceeding to enforce or quash the Subpoena. Eleven months later, the Board charged Dr. Eist with failing to cooperate with a lawful investigation conducted by the Board, in violation of Md.Code (1981, 2000 Repl.Vol., 2004 Supp.), section 14-404(a)(33) of the Health Occupations Article (“HO”). It again demanded that he produce the subpoenaed records. Dr. Eist informed his patients (and their counsel) of the charge, asked whether they still were invoking their privacy rights, and stated that, unless' he heard from them to the contrary, he would assume that they were not doing so.

When neither the patients nor their counsel objected to the records’ being disclosed, Dr. Eist turned the patients’ records over to the Board. Ultimately, a peer review evaluation of the over-medication allegation was favorable to Dr. Eist and he was not charged with a standard of care violation. See [¶] section 14- ⁸⁹ 404(a)(22) (authorizing the Board to discipline a physician for “[f]ail[ing] to meet appropriate standards as determined by appropriate peer review....”). Nevertheless, the Board pursued the failure to cooperate charge.

That charge came before an Administrative Law Judge (“ALJ”), who made a summary recommendation in favor of Dr. Eist. The Board rejected that recommendation and found Dr. Eist guilty of the charge. In an action for judicial review, the Circuit Court for Montgomery County reversed the Board’s decision and remanded the matter to the ALJ for further proceedings. After a contested case hearing, the ALJ made findings of fact and conclusions of law, again recommending a disposition in favor of Dr. Eist.

The Board again rejected that recommendation, finding instead that Dr. Eist had failed to cooperate with a lawful investigation conducted by the Board by not producing the subpoenaed records. In a second action for judicial review, the circuit court reversed the Board’s decision. The case at bar is the Board’s appeal from that judgment. We shall hold that, accepting the factual findings of the Board in its decision, to the extent they are supported by substantial evidence in the agency record, the evidence before the Board was legally insufficient to support its ruling that Dr. Eist failed to cooperate with a lawful investigation conducted by the Board.

Accordingly, we shall affirm the judgment of the circuit court. PERTINENT STATUTES AND CASE LAW The Medical Practices Act The professional conduct of physicians licensed in Maryland is regulated by the legislature pursuant to the Medical Practices Act (“MPA”), codified in [¶] sections 14-101 et seq. At the time pertinent to this case, the Act was administered by a 15-member Board. 2 [¶] § 14-202(a). The Board, comprised ⁹⁰ of physicians and consumers, is responsible for the licensure and discipline of physicians in Maryland.

It has adopted regulations governing the disciplinary process that are codified in the Code of Maryland Regulations (“COMAR”) 10.32.02. The Act authorizes the Board to reprimand a licensee, place a licensee on probation, or suspend or revoke a license to practice medicine for enumerated reasons, including the aforementioned failure to meet appropriate standards as determined by appropriate peer review, [¶] § 14-404(a)(22), and failure to cooperate with a lawful investigation conducted by the Board, [¶] § 14-404(a)(33). See Solomon v. Bd. of Physician Quality Assurance, 155 Md.App. 687 , 845 A.2d 47 (2003) (affirming on judicial review revocation of a doctor’s license to practice medicine for failure to cooperate with a lawful investigation of the Board). When the Board receives a complaint alleging facts that may constitute grounds for disciplinary action under the MPA, it initiates a preliminary investigation. [¶] § 14-401(a); CO-MAR 10.32.02.03A.

The Board is vested with the authority to issue subpoenas in connection with any investigation and any hearing before it. [¶] § 14-401(h). If a complaint alleges that the licensee failed to adhere to appropriate standards of care in his treatment of a patient or patients and, after an initial investigation, the Board elects to pursue, further investigation, the Board then refers the complaint to the Maryland State Medical Society for physician peer review. [¶] § 14-401(c)(2); COMAR 10.32.02.03(B)(1). At the time relevant to this case, the Maryland State Medical Society was known as the Medical and Chirurgical Faculty of Maryland (“MedChi”), so we shall use that designation. The Board and MedChi have adopted a “Peer Review Handbook” for the peer review process.

MedChi prepares a report addressing the allegations against the physician and ⁹¹ submits it to the Board. After receiving the MedChi report, the Board determines whether reasonable cause exists to charge the physician with a failure to meet appropriate standards of care. COMAR 10.32.02.03(B)(2). If the Board files a charge, it refers the matter to an administrative prosecutor and sends notice to the physician.

COMAR 10.32.02.03(C). At that point, the physician is entitled to a contested case hearing before an AL J, in the Office of Administrative Hearings (“OAH”), pursuant to the Administrative Procedure Act (“APA”), Md.Code (1984, 1999 Repl.Vol.), section 10-201 et seq. of the State Government Article (“SG”); [¶] § 14-405(a); see also COMAR 10.32.02.03(D). Following the hearing, the AL J issues findings of fact, conclusions of law, and a proposed disposition. COMAR 10.32.02.03(E)(10).

When the charge against the physician is failure to meet appropriate standards of care in violation of [¶] section 14-404(a)(22), the standard of proof is clear and convincing evidence. [¶] § 14-405(b)(3). 3 Either party may file exceptions to the ALJ’s findings and proposed disposition. COMAR 10.32.02.03(F). The Board is not bound by the decision of the ALJ. [¶] § 14-405(e); see Board v. Bernstein, 167 Md.App. 714, 721 , 894 A.2d 621 (2006). Compare Md.Code (1994, 2004 Rep 1.

Vol.), § 11-110(d)(3) of the State Personnel and Pensions Article (providing that “the decision of the [OAH] is the final administrative decision”). After receiving the ALJ’s proposed decision, the Board must review the record and the ALJ’s proposal and hold a hearing on any exceptions. COMAR 10.32.02.03(F). It then issues a final decision stating its findings of facts, conclusions of law, and a disposition of the charge.

COMAR 10.32.02.03(E)(10). The Board’s final decision is subject to judicial review in the circuit court in accordance with the APA, and then to appeal to this Court. [¶] § 14-408(b). ⁹² The Statutory Psychiatrist-Patient Privileye and The Maryland Confidentiality of Mental Health Records Act Maryland law recognizes a psychiatrist-patient privilege, which is codified at Md.Code (1973, 2006 RepLVol.), section 9-109 of the Courts and Judicial Proceedings Article (“CJ”). 4 That provision states, in pertinent part: (b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment. The statute sets forth exclusions, none of which pertain to health care professional disciplinary investigations. 5 ⁹³ In addition to the privilege that attaches to communications between a psychiatrist and a patient, psychiatric treatment records are medical records covered by the Maryland Confidentiality of Medical Records Act (“CMRA”), codified in Md. Code (1982, 2005 RepLVol., 2006 Supp.), section 4-301 et seq. of the Health General Article (“HG”). Those statutes require that health care providers keep patient records confidential and disclose them only in accordance with the dictates of that subtitle or as otherwise provided by law.

HG § 4-302(a). Dr. Eist is a “health care provider” within the meaning of HG section 4-301(g). 6 HG section 4-306(b)(2) governs disclosure of medical records for use in investigations without the authority of a person in interest (which in this case would be Patient A and any person authorized to act on behalf of Patients B and C). 7 As ⁹⁴ relevant to this case, “[s]ubject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in [HG section] 4-307,” a health care provider “shall disclose a medical record without the authorization of a person in interest” “to health professional licensing and disciplinary boards, in accordance with a subpoena for medical records for the sole purpose of an investigation regarding: (i) Licensure, certification, or discipline of a health professional; or (ii) the improper practice of a health profession[.]” HG § 4-306(b)(2). With respect to disciplinary investigations, HG section 4-307, applicable specifically to mental health records, states that a health care provider shall disclose a medical record without the authorization of a person in interest ... [i]n accordance with a subpoena for medical records on specific recipients [of mental health services]: ... 1. To health professional licensing and disciplinary boards for the sole purpose of an investigation regarding licensure, certification, or discipline of a health professional or the improper practice of a health profession. ...

HG § 4-307(k)(l)(v)(l). It further provides, however, that subsection (k) “may not preclude a health care provider, a recipient, or 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.” HG § 4-307(k)(6). The Dr. K. Case In Dr. K. v. State Board, 98 Md.App. 103 , 632 A.2d 453 (1993), two psychiatrists lodged a complaint with the Board against their colleague, Dr. K. The psychiatrists accused Dr. ⁹⁵ K. of engaging in a romantic relationship with a patient. Before making their complaint, they met with Dr. K. to discuss the matter.

Dr. K. admitted that he was romantically involved with the patient but took the position that the relationship did not violate any professional standard because it started after the patient was no longer under his care. The colleagues told Dr. K. they were going to proceed with filing a complaint against him with the Board because, in their professional opinions, it always is an ethical breach for a psychiatrist to engage in a romantic relationship with a patient, even a former patient. Upon receiving the complaint, the Board initiated an investigation and issued a subpoena duces tecum for Dr. K.’s medical records of the patient. Dr. K. asked the patient if she would consent to the release of her records and she said she would not.

He then filed in the circuit court an action to quash the Board’s subpoena. The Board filed an opposition and a motion to compel enforcement. The court refused to quash the subpoena, but stayed its order for 30 days to allow for an appeal. At that point, the patient intervened and moved for reconsideration, arguing that her federal constitutional right of privacy would be violated if the Board’s subpoena were enforced.

That motion was denied, and an appeal proceeded in this Court. Following the lead of the Third Circuit Court of Appeals in United States v. Westinghouse Electric Corp., 638 F.2d 570 (3rd Cir.1980), this Court held that the patient had a federal constitutional right of privacy in not having the information in her psychiatric records disclosed to a government agency. Dr. K, supra, 98 Md.App. at 112 , 632 A.2d 453 . See also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3rd Cir.1987); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir.1995) (both recognizing federal constitutional right to privacy in certain types of medical information); Powell v. Schriver, 175 F.3d 107, 111 (2nd Cir.1999), Doe v. City of New York, 15 F.3d 264 , 266-67 (2nd Cir.1994) (hereinafter “City of New York”); Schachter v. Whalen, 581 F.2d 35 (2nd Cir.1978) (per curiam) (recognizing a federal constitutional right to maintain confi ⁹⁶ dentiality in certain personal health matters); and Hodge v. Carroll County Dept. of Social Servs., 812 F.Supp. 593, 600 (D.Md.1992). 8 But see Jarvis v. Wellman, 52 F.3d 125 -26 (6th Cir.1995) (holding in 42 U.S.C. section 1983 civil rights action that the federal constitution does not encompass a general right to nondisclosure of private information and therefore disclosure by government officials of plaintiffs medical records to her incarcerated father did not “rise to the level of a breach ⁹⁷ of a right recognized as ‘fundamental’ ” under the federal constitution); Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir.1994)(disclosure by government agent of patient’s HIV status did not violate a federal constitutional right of privacy); J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir.1981) (holding that the federal constitution does not confer a general privacy right to nondisclosure of personal information).

See also Citizens for Health v. Leavitt, 428 F.3d 167, 177 (3rd Cir.2005) (holding that “a violation of a citizen’s right to medical privacy rises to the level of a constitutional claim only when that violation can properly be ascribed to the government”) (emphasis in original); F.E.R. v. Valdez, 58 F.3d 1530, 1535 (10th Cir.1995) (recognizing a constitutional right to privacy in preventing disclosure by the government of personal matters). We explained in Dr. K . that the federal constitutional right of privacy in medical records is not absolute; rather, “‘the individual privacy interest in the patients’ medical records must be balanced against the legitimate interests of the state in securing the information contained therein.’ ” 98 Md.App. at 114 , 632 A.2d 453 (quoting In re Search Warrant (Sealed), supra, 810 F.2d at 71-72 ). When the right of privacy is applicable, “ ‘regulation limiting it must be justified by a ’compelling state interest.’ ” Id. at 111 (quoting 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)). We held that, in balancing a patient’s right of privacy in her medical records against the government’s competing need to obtain the records, the court should consider the following factors: [T]he type of record requested, the information it contains, the potential for harm in subsequent nonconsensual disclosure, the injury in disclosure to the relationship for which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the government’s need for access, and whether there is an express statutory mandate, articulate public policy, or other public interest militating towards access. ⁹⁸ Dr. K., supra, 98 Md.App. at 115 , 632 A.2d 453 (citing Westinghouse Elec.

Corp., supra, 638 F.2d at 578 ) (“the Westinghouse factors”). Upon analysis of the Westinghouse factors, we concluded that the patient’s “constitutional right to privacy in her medical records pertaining to her treatment by Dr. K” was “outweighed by the State’s compelling interest in obtaining those records for the purpose of investigating possible disciplinary action against Dr. K.” 98 Md.App. at 122 , 632 A.2d 453 . On that basis, we affirmed the judgment of the circuit court. The Doe v. Maryland Board of Social Work Examiners Case More recently, in Doe v. Maryland Board of Social Work Examiners, 384 Md. 161 , 862 A.2d 996 (2004), the Court of Appeals approved this Court’s analysis in Dr. K . and applied the Westinghouse factors in deciding whether a health care profession disciplinary agency’s statutory right to obtain mental health records, by subpoena, for purposes of investigating a complaint against a health care provider outweighed the federal constitutional privacy rights of the patients on whom the records were kept.

The Court concluded that, under the facts of that case, the agency’s compelling state interest in investigating whether a social worker was failing in her legal obligation to report suspected child sexual abuse to the authorities, pursuant to Md.Code (1984, 2006 Repl.Vol.), section 5-704 of the Family Law Article (“FL”), outweighed the patients’ privacy rights in their records. In that case, in July 2001, the Maryland Board of Social Work Examiners (“Social Work Board”) received a complaint against a social worker alleging that she had not reported to the authorities information she had gained, in treating a former client, John Doe, and his wife, Jane Doe, that John Doe had sexually abused the couple’s minor granddaughter. The complaint included newspaper articles about John Doe’s having been convicted, the month before, of child abuse and third degree sex offenses against his granddaughter. (The sexual abuse had been brought to the attention of the authori ⁹⁹ ties by the granddaughter’s pediatrician, to whom she disclosed it.

Doe v. Board of Social Workers, 154 Md.App. 520 , 527 n. 2, 840 A.2d 744 . (2004)). Although the source of the complaint to the Social Work Board is not revealed in the opinion of the Court of Appeals or this Court in the case, it clearly was not the Does. Upon receipt of the complaint, the Social Work Board conducted a preliminary investigation that revealed “substantial evidence” that the social worker “had acted in her professional capacity ... in such a way as to be subject to discipline” under the governing statute, which empowered it to discipline a social worker for, among other things, not reporting suspected child abuse in violation of FL section 5-704.

Doe, supra, 384 Md. at 173 , 862 A.2d 996 . After the preliminary investigation, the Social Work Board issued the subpoena duces tecum to the social worker commanding her to produce her records for the Does. The Does responded by filing an action in the circuit court, seeking to quash the subpoena on the ground that they had a state statutory right and a federal constitutional privacy right not to have their mental health records disclosed to the Social Work Board. The court ruled against the Does on their statutory claim and, after engaging in an analysis of the Westinghouse factors, also ruled against them on their constitutional privacy right assertion.

It stayed enforcement of the subpoena pending appeal. After this Court affirmed the circuit court’s ruling, the Court of Appeals granted a petition for writ of certiorari. The Court of Appeals likewise affirmed the circuit court’s ruling. On the statutory issue, it held that Maryland’s social worker-patient privilege must yield to the Social Work Board’s power, also conferred by statute, to obtain social work records in order to investigate allegations that one of its licensees committed a serious violation of her professional duties.

Turning to the federal constitutional privacy right issue, the Court explained that when a patient has asserted such a challenge to the disclosure of his mental health records to the ¹⁰⁰ Social Work Board, that agency “must show a ‘compelling state interest’ before it will be allowed to infringe on [the clients’] privacy rights regarding their treatment records.” Doe, supra, 384 Md. at 183-84 , 862 A.2d 996 . The Court held that 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,” id. at 186 , 862 A.2d 996 ; 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.” Id. The Court proceeded to apply the Westinghouse factors to the underlying facts, ultimately concluding that, in that case, the public’s interest in having the social worker investigated for the alleged failure to report suspected child abuse, in violation of a mandatory reporting statute, and to have her properly disciplined for such a violation, was compelling and outweighed the clients’ privacy interests in their mental health records. 9 FACTS AND PROCEEDINGS Dr. Eist became licensed to practice medicine in Maryland in 1967, and has actively practiced in the field of psychiatry since then. At the time relevant to this case, he was the Medical Director of Montgomery Child and Family Health Services, Inc., held a teaching position at the George Washing ¹⁰¹ ton University Medical School, and was engaged in the full-time practice of child, adolescent, and adult psychiatry and psychoanalysis.

Dr. Eist started treating Patient A intermittently in 1996, when her regular psychiatrist was unavailable due to illness. He became Patient A’s regular treating psychiatrist in mid-1999. Eventually, Dr. Eist also began treating Patient A’s sons, Patients B and C, who at the time were ages 14 and 10, respectively. (An older son was not in treatment.) By then, Patient A was separated from her husband, Mr. S., and the two were embroiled in contentious divorce litigation in the Circuit Court for Montgomery County (“Domestic Case”).

Among other things, Mr. S was alleging that Patient A was unfit to parent the children because she was addicted to drugs. On July 13, 2000, at the request of Patient A’s lawyer in the Domestic Case, Dr. Eist prepared an affidavit providing background information about his psychiatrist-patient relationships with Patients A, B, and C, and setting forth his diagnosis and medication regimen for each patient. He expressed the view to a reasonable degree of medical certainty that Patient A had taken the medications he had prescribed in appropriate dosages, that she was responding positively to the treatment he was rendering, and that the conditions for which Patient A was being treated had not in the past and were not presently adversely affecting her ability to care for her children. Dr. Eist concluded by attesting that Patient A “is a quality, stable, and competent caretaker of her three children.” Dr. Eist’s affidavit was filed in the Domestic Case.

It also was faxed to Mr. S’s office. Complaint and Preliminary Investigation Seven months later, on February 19, 2001, Mr. S wrote a letter to the Board complaining about Dr. Eist. Mr. S is a lawyer, and his two-page, single-spaced letter was written on his law firm’s letterhead. In the second paragraph, Mr. S stated: Dr. Eist is a psychopharmacologist who has been attending my wife and two of my children for the past two years.

In ¹⁰² that time, he has, in my opinion, over-medicated my wife and my sons. My wife has become overly psychotic and seriously anxious and depressed, and my son, [J.S.], has become increasingly more agitated and difficult to control over the course of Dr. Eist’s intervention^ 10 ] I have tried to discuss these concerns with him, and each time he has explained to me that his medicine regime is perfect. The Board characterized this one-paragraph allegation as a “standard of care” complaint. The rest of Mr. S’s letter was devoted to an alleged incident, on February 8, 2001, in which, according to Mr. S, Dr. Eist embarrassed him in front of his two sons by berating him for not having paid a bill and not having brought a credit card or a check with him to pay for a family counseling session.

Mr. S accused Dr. Eist of having “an ego the size of a country” that “interferes with his ability to judge situations professionally and objectively.” The Board characterized this allegation as an “unprofessional conduct” complaint. For reasons not entirely clear from the record, the Board did not receive Mr. S’s letter of complaint until March 13, 2001, almost a month after it was written. 11 According to Barbara K. Vona, Chief of Compliance Administration for the Board, upon receipt of the complaint letter, Harold Rose, the Chief of the Intake Unit, began a preliminary investigation. ¹⁰³ He read the complaint letter and summarized it. Two days later, on March 15, 2001, he wrote to Dr. Eist, notifying him of the complaint, enclosing a copy of the letter, and requesting a written, signed response within 21 days. In his letter, Mr. Rose asked Dr. Eist whether he would consent “to release any or all of the information contained in your response to the complainant,” ie., to Mr. S. In addition, Mr. Rose’s March 15 letter enclosed a subpoena duces tecum, of the same date, commanding Dr. Eist to produce within 10 days “a copy of all medical records of’ Patients A, B, and C “in [his] custody, possession or control[.]” (“the Subpoena”).

The Board did not inform any of the three patients about Mr. S’s complaint against Dr. Eist or that their psychiatric records had been subpoenaed. Dr. Eist received Mr. Rose’s March 15, 2001 letter and the enclosed Subpoena on April 19, 2001. 12 He immediately called Mr. Rose and told him that the complaint was false, that the complainant was the estranged husband of Patient A, and that the husband and wife were involved in a “contentious, vitriolic divorce” in which custody was an issue. He asked Mr. Rose whether he was aware that he (Dr. Eist) could not release Patient A’s psychiatric records without her permission and also could not release the boys’ psychiatric records without obtaining consent on their behalf. According to Dr. Eist, Mr. Rose told him that he was wrong and that he had to produce the records.

Dr. Eist then called Armin U. Kuder, Esquire, for advice. Mr. Kuder told him that Mr. Rose was wrong and that it was essential to obtain the patients’ permission before disclosing their mental health records. ¹⁰⁴ After those conversations, Dr. Eist called Patient A, told her that her mental health records and those of her two sons had been subpoenaed, and apprised her of the nature and source of the complaint against him. Dr. Eist told Patient A that he would release the records to the Board if she and the boys had no objection to his doing so. The next day, April 20, 2001, Dr. Eist wrote to Mr. Rose, acknowledging receipt of his March 15 letter and the Subpoena, and objecting to any information he might furnish being given to Mr. S. He put in writing that the S’s were involved in an ugly divorce and custody case.

He went on to state that it was his belief that Patient A and the two boys were required to be notified that their mental health records were being sought and that he was being asked to divulge their confidential communications. Dr. Eist wrote: I will be pleased to cooperate fully with any investigator with the consent of the patients (including any guardian necessary to waive the children’s privilege), or, if the patients object and take steps to protect their communications with any appropriate decision overruling their objections and requiring that I furnish the information. On May 1, 2001, Dr. Eist wrote to Patient A, enclosing a copy of the Subpoena and stating (as he had told her over the telephone) that her records and those of the boys were being requested due to the complaint against him by Mr. S. Dr. Eist asked Patient A to let him know as soon as she could whether she or her lawyer “are taking any action to oppose my compliance with this subpoena.” He closed by saying that if he did not hear from her within a week, he would forward the records to the Board. Dr. Eist sent a copy of that letter to Mr. Rose.

In the meantime, in the Domestic Case, counsel had been appointed for the minor children, for the purpose of deciding whether to waive their privilege with respect to their communications with mental health professionals. See Nagle v. Hooks, 296 Md. 123 , 460 A.2d 49 (1983). On May 4, 2001, the children’s lawyer submitted a report to the court, explaining ¹⁰⁵ that she had met with many of the mental health care professionals involved in treating the children, including Dr. Eist, and had determined that it would not be in the children’s best interests to waive their privilege with several of the providers, including Dr. Eist. Dr. Eist was sent a copy of that report.

He received it on May 9, 2001, and forwarded it to Mr. Rose that same day. In his cover letter to Mr. Rose, Dr. Eist quoted a recorded telephone message he just had received from Patient A, in which she said, “I tried to contact you, I refuse to allow you to release my medical record to the medical board, I want to write to the medical board telling them what a liar my husband is, I can’t believe the things he said in the compliant [sic]. I want them to know how helpful you have been to my children.” Dr. Eist concluded his letter by inquiring whether Mr. Rose had gotten in touch with Patient A’s lawyer or the children’s lawyer, and stating, “As you know, I want to cooperate with the [Board].” Full Investigation It is the Board’s usual practice that, once a physician has responded in writing to a complaint against him, and has produced the records the Board has subpoenaed, the matter is presented to a panel of the Board for review and direction. Here, also on May 9, 2001, Mr. Rose presented Mr. S’s complaint letter against Dr. Eist to a panel of the Board.

The panel did not yet have a response from Dr. Eist to Mr. S’s standard of care and unprofessional conduct allegations and did not have the medical records, for the reasons that were communicated by Dr. Eist in his letters to Mr. Rose. The Board panel reviewed the matter, however, and directed that Mr. S’s complaint be opened for a full investigation. A few days later, on May 14, 2001, Patient A’s lawyer in the Domestic Case wrote to Mr. Rose, stating that his client “does not waive her privilege with Dr. Eist and has asked that he ¹⁰⁶ not release her records in response to the request from your office. Mrs. S[] wants you to know that she has absolutely no complaints about Dr. Eist and reports that he has always conducted himself in a professional manner.” Sometime in late May 2001, Mr. S’s complaint was assigned to Frank Bubczyk, a Compliance Analyst for the Board, to oversee the full investigation.

On June 27, 2001, he wrote a “Personal and Confidential” letter to Dr. Eist stating that the Board “has opened an investigation and is requesting a response to these allegations in writing within 5 days of receipt of this letter.” The letter went on to say that the Board had not yet received the documents that were subpoenaed on March 15. “For your information,” the letter said, “receipt of those medical records is not contingent upon the consent of the patieni/s.” The letter enclosed a copy of the Subpoena and directed Dr. Eist to produce the records “within forty-eight hours of the receipt of this letter.” It admonished that failure to comply with the Subpoena within that time frame “may be grounds for disciplinary action pursuant to [HO section] 14-á04(a)(33) for fail[ing] to cooperate with a lawful investigation conducted by the Board.” Dr. Eist did not receive Mr. Bubczyk’s letter until July 7, 2001. He contacted Mr. Kuder, who on July 11 responded to Mr. Bubczyk in writing. Mr. Kuder gave background information about the Domestic Case for context, and said that Dr. Eist was preparing, and shortly would send, a written response to Mr. S’s unprofessional conduct allegation. Mr. Kuder went on to say that, to the extent the Board was considering the “allegations” against Dr. Eist to include Mr. S’s complaint about the propriety of the treatment being rendered to Patients A, B, and C (ie., the standard of care allegation), “Dr. Eist is under the impression that he does not have his patients’ permission to reveal their confidences, and that no court has weighed the necessity for violating their confidences based upon the unsupported allegations of someone with a clear conflict of interest, and a desire to violate those confidences.” ¹⁰⁷ Mr. Kuder enclosed the correspondence previously sent to Mr. Rose, including the letters from the lawyers for the patients opposing disclosure of the subpoenaed mental health records.

Speaking for himself and Dr. Eist, Mr. Kuder stated: [W]e believe that the communications of persons who are uninvolved in the complaint, who have legitimate privacy and confidentiality issues, and who are engaged in litigation with the complainant, should be examined and thoughtfully dealt with. Has this been done by the Board? What action has been taken with respect to [Patient A’s lawyer’s] letter? This is not a case of defiance by Dr. Eist of the Board’s authority, but the effort of a conscientious psychiatrist attempting to meet the conflicting ethical and legal obligations with which he is faced.

It would appear that it is incumbent upon the Board to address [Patient A’s] communications, as well as those made on behalf of her children. It should not be Dr. Eist’s responsibility to say to them that they have no confidentiality rights. If the Board so acts, and persuades a court of this, should [Patient A and her children] pursue that route, then Dr. Eist certainly will comply. It is inappropriate to threaten him with punishment without first dealing with the issues raised by [Patient A] and the children.

We have no communication to date indicating that those issues have been addressed. On July 16, 2001, Dr. Eist wrote a 9-page single-spaced letter to Mr. Bubczyk, recounting in detail his interactions with Mr. S concerning billing, and the family’s history of dysfunction that ultimately resulted in the acrimonious Domestic Case; and countering the allegation that he had acted improperly in handling the billing dispute (ie., the unprofessional conduct allegation). The Board never took any action against Dr. Eist with respect to the unprofessional conduct allegation, and it concedes that it was not necessary to review Dr. Eist’s psychiatric records of the three patients to assess that allegation. ¹⁰⁸ Neither Mr. Bubcyzk nor anyone else with the Board responded to Mr. Kuder’s July 11, 2001 letter. Likewise, there was no response to Dr. Eist’s July 16, 2001 letter.

In September 2001, the Board issued subpoenaes to several pharmacies, seeking records of medications dispensed to the three patients from January 1, 1998, through the subpoena response date of October 25, 2001. The Board received pharmacy print-outs in response to the subpoenaes. The Board Charges Dr. Eist with Failure to Cooperate with a Lawful Investigation On December 19, 2001, the Board voted to charge Dr. Eist with “failing to cooperate with a lawful investigation,” under [¶] section 14-404(a)(33), based upon his not having produced the three patients’ psychiatric records in response to the Subpoena. The matter then was transmitted to the Attorney General’s Office for review and approval.

On February 4, 2002, the Board issued the charge. On March 1, 2002, Mr. Kuder notified the lawyers for Patient A and the children, in writing, of the charge against Dr. Eist. He told them that, unless they objected on behalf of their clients within one week, Dr. Eist would produce the subpoenaed psychiatric records to the Board. None of the patients objected to the production of the records at that time.

Consequently, on March 21, 2002, Dr. Eist furnished the patients’ records to the Board. Investigation and Closure of Mr. S’s Standard of Care Allegation Seven months later, on October 31, 2002, the Board referred Mr. S’s complaint against Dr. Eist to MedChi. The Board transmitted to MedChi Mr. S’s letter of complaint, the complete records of the three patients as produced by Dr. Eist, Dr. Eist’s July 16, 2001 letter, and a copy of the subpoenaed pharmacy records. MedChi further referred the matter to the Maryland Psychiatric Committee’s Peer Review Committee, for evaluation. ¹⁰⁹ Dr. Eist appeared before the peer review committee for an interview on August 26, 2003.

He provided the members a handout that contained excerpts from the patients’ medical records, pertinent medical articles, and a current curriculum vitae. The peer review committee made numerous attempts to contact Mr. S to have him appear before them, but he did not respond. On September 24, 2003, the peer review committee met and discussed the matter. Two months later, on November 30, 2003, it issued a report to MedChi finding that “there was no evidence that [Dr. Eist] overprescribed any medication or induced psychotic symptoms by inappropriate medication practices.” The report further found that Dr. Eist “behaved in a professional manner when interacting with the patients and the husband/father” and that there was “no breach of any applicable standard of care in [Dr. Eist’s] treatment or conduct with the patients reviewed.” On December 1, 2003, the Board received the MedChi peer review report.

Two months later, on February 5, 2004, it voted not to charge Dr. Eist on the standard of care allegation. It did not communicate that decision to Dr. Eist, however. According to Ms. Vona, the Board took the position that, because it still was prosecuting Dr. Eist for failure to cooperate with a lawful investigation, it was not necessary to inform him that the standard of care allegation had been disposed of, in his favor. Initial Contested Case Proceeding and ALJ Recommendation In the meantime, in the contested case proceeding, the Board and Dr. Eist agreed that there were no disputes of material fact, and filed cross-motions for summary decision, pursuant to COMAR 28.02.01.16C.

On August 14, 2002, the ALJ issued a written Proposed Decision that made findings of facts and conclusions of law. She recommended that summary disposition be granted in ¹¹⁰ favor of Dr. Eist. The ALJ’s primary conclusions were that the Board does not have an absolute right to obtain the mental health records of a patient or confidential information regarding mental health treatment of a patient, and that, when such a patient objects to a subpoena for such records issued by a disciplinary board, the Westinghouse factors must be applied by an independent fact finder to assess whether the Board has a compelling state interest in obtaining the records that outweighs the patient’s constitutional privacy right in the records. The ALJ considered those factors and the factual circumstances and concluded that Dr. Eist had merely tried “to safeguard the rights of his Patients”; and that doing so did not constitute a failure to cooperate with a lawful investigation by the Board.

First Final Decision of the Board The Board noted exceptions to the ALJ’s Proposed Decision. A hearing was convened, at which counsel for the parties presented oral arguments. On January 28, 2003, the Board issued a Final Decision and Order rejecting the Proposed Decision of the ALJ. It found that Dr. Eist had failed to cooperate with a lawful investigation by the Board because, beginning in April 2001, and continuing for ten months, he did not produce the psychiatric records of the three patients in response to the Subpoena.

The Board determined that Dr. Eist “had no legal or ethical excuse” for not producing the records, and that his conduct constituted a violation of [¶] section 14-404(a)(33). The Board imposed a sanction of a reprimand and a $5,000 fine. In the course of its decision, the Board stated that this Court, in applying the Westinghouse factors in the Dr. K. case, held generally that a patient’s constitutional privacy interest in his psychiatric records is outweighed by the government’s compelling interest in regulating the medical profession, including investigating alleged misconduct by physicians. In other words, the Board misinterpreted the Dr. K . holding to mean that, as between the Board and a psychiatrist’s patient, the government’s interest in obtaining records ¹¹¹ for purposes of disciplinary investigation always will outweigh the patient’s constitutional privacy interest in those records.

First Circuit Court Action for Judicial Review Dr. Eist filed an action for judicial review in the Circuit Court for Montgomery County. On July 31, 2003, after submitting memoranda of law, the parties made arguments to the court. From the bench, the court ruled that the Board had committed an error of law when it determined 1) that it had an absolute right to the mental health records it had subpoenaed, merely because it is statutorily empowered to issue subpoenas, and regardless of any constitutional or statutory right of privacy the patient has in his or her mental health records; and 2) that a doctor who fails to produce records in response to a board-issued subpoena necessarily violates [¶] section 14-404(a)(3), even if he acted in good faith and in reliance upon the advice of counsel. The court remanded the matter to the Board for a full contested case hearing before the ALJ.

The court entered a written order to that effect on August 19, 2003. The case was remanded to the Board, which in turn remanded it to the OAH, for further proceedings. A contested case hearing was scheduled for August 16, 17, and 18, 2004. Full Contested Case Hearing In April 2004, in the course of preparing for the upcoming contested case hearing, Dr. Eist’s lawyer demanded that the Board produce, as exculpatory evidence, the results of the MedChi peer review committee’s assessment of Mr. S’s standard of care allegation.

Because he had not been told by the Board, Dr. Eist did not then know that, five months prior, the peer review committee had favorably evaluated his treatment of the three patients and that, two months prior, the Board had voted to close the standard of care allegation without filing charges. On April 20, 2004, the Board gave counsel for Dr. Eist the peer review committee’s report. It did not inform Dr. Eist, however, of its February 2004 decision to close Mr. S’s stan ¹¹² dard of care complaint. The Board did not make that known to Dr. Eist until July 2004, when the ALJ ordered it to produce all exculpatory material to the doctor.

The contested case hearing went forward as scheduled. The Board called as witnesses Ms. Vona and Mr. S. Dr. Eist called as witnesses Mr. Kuder; Patient A’s lawyer; Denny Rodriguez, of Professional Risk Management Services, Inc.; Richard S. Epstein, M.D., a psychiatrist; Jonas Rappaport, M.D., an expert in psychiatry and forensic psychiatry; Gustavo Goldstein, M.D., an expert in psychiatry and child psychiatry; and Roger Peele, M.D., an expert in psychiatry. The ALJ’s Proposed Decision The ALJ issued her written Proposed Decision on November 16, 2004. She framed the issues before her on remand as: 1) whether the Subpoena was lawfully issued, under the Westinghouse factors; 2) if so, whether Dr. Eist acted in good faith and upon the advice of counsel when he did not produce the subpoenaed records over his patients’ objections; and 3) whether Dr. Eist’s action in not producing the subpoenaed records constituted a failure to cooperate with a lawful investigation of the Board, in violation of [¶] section 14-404(a)(33).

The ALJ analyzed the Westinghouse factors and concluded that, on the facts adduced at the hearing, the Board did not have a compelling state interest in obtaining the psychiatric records of Patients A, B, and C that outweighed the patients’ federally protected privacy interests in those records. The ALJ further determined that Dr. Eist had acted in good faith and upon the advice of counsel in not producing the records in response to the Subpoena. Finally, the ALJ concluded that the evidence did not support the charge of failing to cooperate with a lawful Board investigation. Second Final Decision of the Board The agency prosecutor noted exceptions.

Once again, the matter was presented to the Board by way of oral argument of counsel. On June 22, 2005, the Board issued its Final Decision, rejecting the ALJ’s Proposed Decision. The Board ¹¹³ found Dr. Eist guilty of failing to cooperate with a lawful investigation and once again imposed a sanction of a reprimand and a fine of $5,000. The Board made findings of fact and then engaged in a constitutional balancing analysis, applying the Westinghouse factors.

It concluded that the Board’s interest in obtaining the patients’ psychiatric records for purposes of its investigation of Mr. S’s complaint outweighed the patients’ privacy interests in their records. The Board further rejected the ALJ’s findings that Dr. Eist acted in good faith and upon the advice of counsel in not producing the records. Second Circuit Court Action for Judicial Review Dr. Eist again filed a petition for judicial review. The court held a hearing on March 7, 2006, at the conclusion of which it ruled from the bench.

The court determined that the Board’s Final Decision “was not adequately supported by the facts and the law [.]” On April 5, 2006, the court issued an order, entered the same day, reversing the decision of the Board and remanding the matter to the Board with instructions to dismiss the charge against Dr. Eist. Questions Presented On Appeal The Board noted this appeal, posing four questions for review, which we have revised slightly: 1. Does Maryland statutory law require a psychiatrist to produce the mental health treatment records of certain patients to the Board in response to a subpoena when the records are sought to investigate a complaint that the psychiatrist’s treatment is endangering those patients? 2. Was the Board’s finding that it needed to obtain the psychiatric records of the three patients in order to proceed with its investigation of Mr. S’s standard of care allegation against Dr. Eist: (a) supported by substantial evidence; and (b) within its area of special administrative expertise? ¹¹⁴ 3.

Did Dr. Eist meet his burden of establishing that the Medical Practice Act and the Confidentiality of Medical Records Act were unconstitutional as applied to the facts of his case? 4. Is the advice of counsel an absolute defense to a charge that a licensed professional failed to comply with a statutory duty to cooperate with a lawful investigation? STANDARD OF REVIEW It is well established that, on appellate review of a judgment of a circuit court in an action for judicial review of the final decision of an administrative agency, the Court looks through the decision of the circuit court to review the agency’s decision. Bennett v. State Dep’t of Assessments and Taxation, 171 Md.App. 197, 204 , 908 A.2d 759 (2006).

In other words, our task on appellate review is identical to the circuit court’s task on judicial review. Our focus is on the agency’s final decision, not the circuit court’s ruling. In reviewing a final agency decision on its facts, we apply the substantial evidence test. Cornfield v. State Bd. of Physicians, 174 Md.App. 456, 468 , 921 A.2d 893 (2007). “That test requires us to affirm an agency decision, if, after reviewing the evidence in a light most favorable to the agency, we find ‘a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ ” Montgomery County v. Rotwein, 169 Md.App. 716, 728 , 906 A.2d 959 (2006) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978)).

Moreover, “it is the agency’s province to resolve conflicting evidence and draw inferences from that evidence!;] its decision carries a presumption of correctness and validity.” Bernstein, supra, 167 Md.App. at 751 , 894 A.2d 621 . By contrast, we review an agency’s legal conclusions de novo. Hayfields, Inc. v. Valleys Planning Council, Inc., 122 Md.App. 616, 629 , 716 A.2d 311 (1998). Nevertheless, “[w]e give ‘considerable weight’ to an agency’s ‘interpretations and applications of statutory or regulatory provisions’ that are ¹¹⁵ administered by the agency.” Bernstein, supra, 167 Md.App. at 751 , 894 A.2d 621 (quoting Md. Aviation Admin. v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 (2005)).

DISCUSSION I. & II. In its first contention, the Board argues that controlling provisions of the MPA and the CMRA required Dr. Eist to furnish the subpoenaed psychiatric records to the Board; therefore, the Board properly determined that Dr. Eist failed to cooperate with the Board’s lawful investigation of Mr. S’s standard of care allegation by refusing to turn over the subpoenaed records. In its second contention, the Board argues that there was substantial evidence in the agency record to support the Board’s finding that the psychiatric records were needed by the Board to conduct its investigation of the standard of care allegation. The Board maintains that a reasoning mind reasonably could reach that conclusion.

These contentions are relevant but not central to the core issue on appeal. As the Court of Appeals in Doe, and this Court in Dr. K , explained, there are statutory privileges that apply to communications between a psychiatrist (or social worker) and a patient (or client); there are statutes that authorize the Board of Physicians (and the Social Work Board) to subpoena records, including psychiatric (and other mental health) records, in the course of an investigation; there are statutory confidentiality protections that are afforded medical records, and mental health records in particular; and there are exceptions to those protections for licensing/disciplinary boards, such as the Board in this case, that allow them to obtain medical records, including mental health records, for purposes of investigation. Psychiatric records are privileged and confidential. Nevertheless, the psychiatrist-patient privilege must yield to a licensing/disciplinary board’s statutory right to obtain such records for investigatory purposes, and the legislature has recognized, in the CMRA, that confidentiality may not bar investigating boards from obtaining records, ¹¹⁶ even when they are exceptionally private.

See HG § 4-307(j)(l) (disclosure of mental health records without the authorization of a person in interest). In the case at bar, Dr. Eist told the Board investigator that he had to obtain the consent of his patients before furnishing the subpoenaed records. We agree with the Board that, under HG section 4-307(k)(l)(v)(l), Dr. Eist’s assertion was incorrect. As a “health care provider,” he was required by statute to furnish the subpoenaed records to the Board without the consent of the three patients.

Id. What the Board overlooks in making its statutory argument, however, is that the agency’s right to obtain a medical record, as conferred by statute, is not absolute. 13 That is the essential holding of the Court of Appeals in Doe and this Court in Dr. K . As