Shady Grove Psychiatric Group v. State

KENNEY, Judge. Appellant, the Shady Grove Psychiatric Group (“Shady Grove”), appeals the order of the Circuit Court for Montgomery County, enforcing a subpoena issued by appellee, the State of Maryland (the “State”). Shady Grove raises two questions on appeal, which we have rephrased and consolidated into one: Did the circuit court err by enforcing the subpoena? We shall answer in the affirmative and, therefore, reverse the judgment of the circuit court.

FACTS Shady Grove is a mental health professional group consisting of one psychiatrist, three psychologists, and one psychiatric social worker that provides treatment to patients for “a wide range of mental illnesses and disorders.” On June 8, 1998, the State, in its investigation of an unidentified “hate crime” that apparently occurred in the vicinity of Shady ¹⁶⁶ Grove’s office, issued a subpoena to Shady Grove’s custodian of records. The subpoena stated, in relevant part, “Please provide a list of patients who had appointments on 6/01/98 between 10:00 a.m. and 12:00 noon. Need addresses, dates of birth, phone numbers, and appointment history from February 1 to the present.” Shady Grove refused to provide the information requested on the ground that it was shielded from disclosure under Md.Code (1982, 1994 Repl.Vol., 1998 Cum. Supp.), §§ 4-301 through 309 of the Health-General Article (“H.G.”)(the “Confidentiality of Records Act”) (the “Act”) and the privilege protecting communications between a patient and psychiatrist set forth in Md.Code (1974, 1998 Repl.Vol.), § 9-109 of the Courts and Judicial Proceedings Article (“C.J.”)(the “patient-psychiatrist privilege”).

On August 28, 1998, the State filed a “Motion for Appropriate Relief,” seeking enforcement of the subpoena. The matter was heard on September 22, 1998, and the circuit court ordered Shady Grove to produce the information requested. The court stated: The court is going to order the doctor to comply with the subpoena that was issued pursuant to [Article 10, § 39A] of the Courts and Judicial Proceedings Article covering the privilege because I conclude that the privilege here is not violated; that the information requested is very limited in nature and deals not with the treatment, diagnosis, prognosis of any of the patients. The court stayed enforcement of the subpoena so that Shady Grove could note this appeal.

DISCUSSION Maryland Code (1957, 1998 Repl.Vol.), Art. 10, § 39A provides, in relevant part: (a) Power to issue.-For the limited purpose of obtaining documents to further an ongoing criminal investigation, the State’s Attorney may issue, within the county served by the State’s Attorney, a subpoena to a person to require the ¹⁶⁷ production of telephone, business, governmental, or corporate records or documents. (f) Effect on recognized privilege or right. — Nothing contained in this section is intended to allow the contravention, denial, or abrogation of any privilege or right recognized by law. [Emphasis supplied.] Clearly, the statutory authority of Art. 10, § 39A is expressly limited by any privilege or right recognized by law. Shady Grove suggests that in this instance the State’s subpoena power is limited by the rights recognized by the Act or the patient-psychiatrist privilege. We shall examine both.

Interestingly, the State’s subpoena does not request Shady Grove to produce an existing telephone, business, governmental, or corporate record or document. Rather, the terms of the subpoena require Shady Grove to generate a document by the compilation of information presumably contained in Shady Grove’s records, regardless of how those records are classified. Whether such a demand is authorized by Art. 10, § 39A, is not before us, however, as appellant did not properly raise the issue in either its initial brief or its reply brief. Md. Rule 8-504; See Beck v. Mangels, 100 Md.App. 144 , 640 A.2d 236 , cert. granted, 336 Md. 405 , 648 A.2d 991 (1994), cert. dismissed as improvidently granted, 337 Md. 580 , 655 A.2d 370 (1995)(noting that the provisions of Rule 8-504 are mandatory and that it is necessary for an appellant to present and argue all points of an appeal in the initial brief); Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md.App. 446 , 406 A.2d 928 (1979).

I. CONFIDENTIALITY OF RECORDS ACT The Act was adopted by the General Assembly in 1990. In Warner v. Lerner, 115 Md.App. 428 , 693 A.2d 394 (1997), rev’d, ¹⁶⁸ 848 Md. 733 , 705 A.2d 1169 (1998), this Court recognized that the purpose of the Act was to provide for the confidentiality of medical records, to establish clear and certain rules for the disclosure of medical records, and generally to bolster the privacy rights of patients. The legislature recognized that, because of the personal and sensitive nature of one’s medical records, a patient might experience emotional and financial harm if his medical records are improperly used or disclosed. It was further desired that the Act would enable health care providers to retain the full trust and confidence of their patients.

Id. at 431-32, 693 A.2d 394 . As defined in the Act, a “medical record” is any oral, written, or other transmission in any form or medium of information that (1) is entered in the record of a patient or recipient, (2) identifies or can readily be associated with the identity of a patient or recipient, and (3) relates to the health care of the patient or recipient. H.G. § 4-301(g)(l). A “health care provider” includes the person who renders health care to a “patient” or “recipient” and includes a facility where health care is provided.

H.G. § 4-301(f)and (h). A “patient” is a person who receives health care and on whom a medical record is maintained. H.G. § 4-301(j). A “recipient” is a person who has applied for, for whom an application has been submitted, or who has received mental health services.

H.G. § 4-301(m). Pursuant to the Act, “a health care provider shall (1) keep the medical record of a patient confidential, and (2) disclose the medical record only as otherwise provided by law.” H.G. § 4-302(a); Warner v. Lerner, 348 Md. 733, 738 , 705 A.2d 1169 (1998). “Disclose or disclosure” is defined as “the transmission or communication of information in a medical record, including an acknowledgment that a medical record on a particular patient or recipient exists.” H.G. § 4-301(c)(emphasis added). When these provisions are synthesized, the result is as follows: As a health care provider, Shady Grove ¹⁶⁹ shall transmit or communicate information in a medical record, including an acknowledgment that a medical record on a particular patient or recipient exists, only as provided by the Act or as otherwise provided by law. A health care provider that knowingly discloses a medical record in violation of the Act is liable for actual damages.

H.G. § 4-309. In this case, the scope of the subpoena was limited to the production of information related only to Shady Grove’s patients. By definition a “patient” is a person on whom a medical record is maintained. Although the specific information sought by the State may not relate directly to “health care” as would treatment, diagnosis, or prognosis, and thus, not fall within the Act’s definition of “medical record,” it is illogical to believe that a patient’s name, address, date of birth, phone number, and appointment history could be released by Shady Grove without acknowledging that a medical record on that particular patient exists.

Thus, pursuant to the wording of the subpoena, compliance with the State’s request must be governed by the provisions of the Act because Shady Grove was required to acknowledge the existence of a medical record. As noted, all mental health records are made confidential under H.G. §§ 4-301 through 309. Reynolds v. State, 98 Md.App. 348, 365 , 633 A.2d 455 (1993); Dr. K. v. State Bd. Of Physician Quality Assur., 98 Md.App. 103, 116 , 632 A.2d 453 (1993), cert. denied, 334 Md. 18 , 637 A.2d 1191 , cert. denied, 513 U.S. 817 , 115 S.Ct. 75 , 130 L.Ed.2d 29 (1994).

Section 4-303 “requires a health care provider to disclose a medical record on the authorization of a person in interest, subject to the conditions stated in that section.” 1 Warner, 348 Md. at 738 , 705 A.2d 1169 . ¹⁷⁰ In Warner v. Lerner, supra, the Court of Appeals considered the proper construction of certain provisions of the Act. Warner was treated by Dr. Schirmer, a urologist, and, in the course of that treatment, disclosed personal information to Dr. Schirmer with the understanding that the information was confidential. Although it was not explained under what circumstances, the medical records concerning Warner and his treatment by Dr. Schirmer became part of the medical records of Union Memorial Hospital. Lerner was a urologist having privileges at Union Memorial Hospital.

In 1993, Leo Kelly, a patient of both Lerner and Schirmer, sued Lerner for malpractice. Kelly retained Dr. Schirmer as an expert witness and called him to testify in the case. Lerner obtained Warner’s medical records from Union Memorial Hospital with the intent of using those records in his cross-examination of Dr. Schirmer. Warner alleged that Lerner had violated his rights under the Act by obtaining his medical records in a manner and for a purpose not allowed by the Act.

Lerner countered that disclosure was authorized under the Act. The circuit court concluded that disclosure was authorized under H.G. § 4-305(b)(l)(iii), permitting a health care provider to disclose a' medical record without the authorization of a person in interest “to any provider’s insurer of legal counsel ¹⁷¹ ... for the sole purpose of handling a potential or actual claim against the provider.” This Court, although expressing serious reservations, affirmed the circuit court’s determination. The Court of Appeals reversed on the ground that the health care provider in question was Union Memorial Hospital and not Lerner, and thus, only Union Memorial Hospital had discretion to authorize the disclosure of Warner’s medical records. Id. at 740-41, 705 A.2d 1169 .

The analysis applied in Warner is instructive because it affirms the principle that the disclosure of medical records must be consistent with the provisions of the Act. Section 4-305 describes generally the situations in which a health care provider “may” disclose a medical record without the authorization of a person in interest. “Compulsory process,” as defined in H.G. § 4-306(a), “includes a subpoena, summons, warrant, or court order that appears on its face to have been issued on lawful authority.” Section 4-306 requires a health care provider to disclose a medical record or acknowledge the existence of a medical record, without authorization of a person in interest, in eight enumerated circumstances, only one of which appears relevant here. Section 4-306(b)(7) provides that a health care provider shall disclose a medical record without the authorization of a person in interest to grand juries, prosecution agencies, law enforcement agencies or their agents or employees to further an investigation or prosecution, pursuant to a subpoena, warrant, or court order for the sole purposes of investigating and prosecuting criminal activity, provided that the prosecution agencies and law enforcement agencies have written procedures to protect the confidentiality of the records. This case, however, is not governed exclusively by § 4-306(b)(7) because the State’s subpoena implicated the disclosure of mental health records, which is governed also by § 4-307.

Thus, we must determine what impact, if any, that provision has on the request for disclosure. Section 4~307(b)(7) provides, in relevant part: ¹⁷² (b) The disclosure of a medical record developed in connection with the provision of mental health services shall be governed by the provisions of this section in addition to the other provisions of this subtitle. (c) When a medical record developed in connection with the provision of mental health services is disclosed without the authorization of a person in interest, only the information in the record relevant to the purpose for which disclosure is sought may be released. (h) (1) A health care provider shall disclose a medical record without the authorization of a person in interest: (v) in accordance with service of compulsory process or a discovery request, as permitted under § 9-109(d), § 9-109.1(d), or § 9-121(d) of the Courts and Judicial Proceedings Article, 2 or as otherwise provided by law, to a court, an administrative tribunal, or a party to a civil court, administrative, or health claims arbitration proceeding, if: 1.

The request for issuance of compulsory process or the request for discovery filed with the court or administrative tribunal and served on the health care provider is accompanied by a copy of a certificate directed to the recipient, the person in interest, or counsel for the recipient or the person in interest; and 2. The certificate: A. Notifies the recipient or the person in interest that disclosure of the recipient’s medical record is sought; B. Notifies the recipient or the person in interest of the provisions of this subsection or any other provision ¹⁷³ of law on which the requesting party relies in seeking disclosure of the information; C. Notifies the recipient or the person in interest of the procedure for filing a motion to quash or a motion for a protective order; D. is attached to a copy of the request for issuance of a compulsory process or request for discovery; and E. is mailed to the recipient, the person in interest, or counsel for the recipient or person in interest by certified mail, return receipt requested, on or before the date of filing the request for issuance of compulsory process or the request for discovery; (vi) in accordance with a subpoena for medical records on specific recipients: 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; and 2. To grand juries, prosecution agencies, and law enforcement agencies under the supervision of prosecution agencies for the sole purposes of investigation and prosecution of a provider for theft and fraud, related offenses, obstruction of justice, perjury, unlawful distribution of controlled substances, and of any criminal assault,