Warner v. Lerner

THIEME, Judge. This is an appeal from an order of the Circuit Court for Baltimore City (Mitchell, J.) dismissing appellant’s claim that his rights under Maryland’s Confidentiality of Records Act were violated by appellee. We shall affirm the circuit court. Facts In a claim unrelated to this appeal, Leo Kelly, Jr., brought an action alleging medical malpractice on the part of appellee, Dr. Brad Lerner.

Upon the parties’ joint consent to submit the claim to binding arbitration, the matter proceeded in that fashion. Plaintiffs expert, Dr. Horst Schirmer, opined that Dr. Brad Lerner breached standards of care by performing on Kelly an operation known as a transurethral resection of the prostate (“TURP”). On cross-examination, Lerner’s counsel sought to impeach Schirmer by introducing a copy of a pathology report ⁴³⁰ that indicated that Dr. Schirmer had performed the same kind of surgery under conditions nearly identical to those that he alleged constituted a breach of care on the part of Lerner. The subject of that pathology report was appellant William Warner.

Warner filed a complaint in the Circuit Court for Baltimore City alleging that a violation of the Confidentiality of Records. Act, as set forth in Maryland Code Ann., Health General Article § 3-401 et seq. (“the Act”), had resulted from Lerner’s improper taking and using Warner’s medical records without his prior consent. Lerner filed a motion to dismiss.

In his ruling from the bench, Judge Mitchell stated: We are troubled here, as we intimated by our questions, that in this society, where so much of our interests, our knowledge, [and] our records are subject to review without our being aware of it, that an uninterested person, clothed only with the mantle of a Doctor of Medicine degree or licensure, can rummage through the records of a hospital and obtain information about patients. We are troubled that no effort was made to subpoena the records and give notice to the patient that his records were being made public. We are troubled that the individual patient did not have free opportunity to contest the disclosure of his records and that a court of competent jurisdiction was not afforded an opportunity to consider the issue and perhaps craft a protective order. The statute provides that any provider may obtain any record of any patient if those records will assist in the defense of a lawsuit against that health care provider.

We obviously are paraphrasing. Despite this Court’s quite obvious discomfort, maybe even displeasure, or its severe reservations regarding just what was intended by the general assembly, the language of the statute is clear, and we must give meaning to those words as those words were set forth by that deliberative body. ⁴³¹ We will grant the motion to dismiss this case, because the legislature, by their language, gave the defendant the opportunity to obtain this information and use it to defend a lawsuit that everyone acknowledges was pending against him. We hope, and in fact urge, that the legislature reexamine this issue because of the potential for abuse. (Emphasis supplied.) Appellant presents the following issue, as paraphrased, for this Court’s review: Whether Lerner’s taking and disclosure of Warner’s medical records was permitted under the Act.

DISCUSSION I. Standard of Review Upon appeal from the granting of a motion to dismiss filed under Maryland Rule 2 — 322(b)(2), an appellate court must assume the truth of all well-pleaded relevant and material facts in the complaint, as well as all inferences that can reasonably be drawn therefrom. Odyniec v. Schneider, 322 Md. 520, 525 , 588 A.2d 786 (1991). Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would nonetheless fail to afford relief to the plaintiff if proven. Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624 (1995); Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993).

II

The Act The genesis of the Act occurred during the 1990 session of the General Assembly as Senate Bill 584. Sponsored by five senators, particularly Senator Paula Hollinger, chair of the health subcommittee, SB 584 was enacted 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 ⁴³² 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.

The resultant codification of this legislative initiative now reads, in pertinent part: § 4-305 Disclosures without authorization of person in interest — In general. (b) Permitted Disclosure. — A health care provider may disclose a medical record without the authorization of a person in interest: 1 (l)(ii) To the provider’s legal counsel regarding only the information in the medical records that relates to the subject matter of the representation; or (iii) To any provider’s insurer or legal counsel, or the authorized employees or agents of a provider’s insurer or legal counsel, or the authorized employees or agents of a provider’s insurer or legal counsel, for the sole purpose of handling a potential or actual claim against any provider. (Emphasis supplied.) The Floor Report of SB 584 further summarizes the circumstances under which a permissive disclosure of a patient’s medical records is available. “These persons and entities include: 1) a provider’s authorized employees, agents, or consultants for the purpose of offering, providing, evaluating, or seeking payment for health care to patients; 2) a provider’s legal counsel.... ” While it is clear the first item generally relates to medical treatment, and the payment therefor, the second item can be construed quite broadly as allowing a ⁴³³ provider’s legal counsel to have wholesale access to medical records in the defense of a pending claim. This is the focus of our concern.

Although the Act attempts to fortify the privacy interests and rights of patients, it lacks clarity as to the precise circumstances under which a provider’s attorney may obtain medical records. Consequently, two particular purposes of the Act, namely, bolstering confidentiality and developing regulations under which the records may be disclosed without prior consent of the patient, are summarily eviscerated by the language of the statute. While we surmise that the drafters may have intended that the terms of discretionary disclosure should be applicable to a legal action in which the patient has a direct interest, and that the basis of this action accrued within the scope of the subject provider’s practice, this intent stands in diametric opposition to the actual language used in the Act. Nonetheless, we must accept the law as it is written, not as we would like it to be.

Department of Economic and Employment Development v. Taylor, 108 Md.App. 250, 277 , 671 A.2d 523 (1996), aff'd, 344 Md. 687 , 690 A.2d 508 (1997) (per curiam); McCance v. Lindau, 63 Md.App. 504, 512 , 492 A.2d 1352 (1985) (citing R. v. Ramsey, 1 C & E. 126, 136 (1883)). Moreover, we must presume that the legislature, by its words and deeds, intended that which it has promulgated, and that we are not to substitute, embellish, or otherwise alter its intent. Taylor v. Mayor and City Council of Baltimore, 51 Md.App. 435, 447 , 443 A.2d 657 (1982). By applying the plain language of the statute, and disregarding the potential problems associated therewith, as discussed infra, it is patent that the language of § 4 — 305(b)(l)(iii) permitted Lerner, through his counsel, to obtain Warner’s medical records without his prior consent or authorization.

As troubling as this may be, it is the result of interpreting the statute in terms of the “plain English” meaning that case law requires. Therefore, we hold that the trial court properly dismissed Warner’s claim under the Act and, accordingly, affirm the judgment below. ⁴³⁴ III. Potential Constitutional Implications The question presented in the instant appeal, calling for judicial insight as to the propriety of the disclosure of Warner’s medical records under the Act, could provide a narrow constitutional basis for resolution that might require us to determine whether the portion of the statute upon which Warner’s claim is predicated, and upon which Lerner’s professed authority to acquire Warner’s medical records is based, is constitutional. But for the lack of any state action in this regard, we might well be able to address the statute accordingly.

One seeking to assert a violation of the protections of procedural due process must demonstrate that the “depriving mechanism” employs state action to facilitate the deprivation of a property interest of the challenger. Fuentes v. Shevin, 407 U.S. 67, 84-85 , 92 S.Ct. 1983, 1996-97 , 32 L.Ed.2d 556 (1972); Golden Sands Club Condominium, Inc. v. Waller, 313 Md. 484 , 488 n. 4, 545 A.2d 1332 (1988); Department of Transportation, Motor Vehicle Admin. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191 (1984); Roberts v. Total Health Care, Inc., 109 Md.App. 635, 644 , 675 A.2d 995 (1996), cert. granted, 343 Md. 566 , 683 A.2d 178 (1996); Vavasori v. Commission of Human Relations, 65 Md.App. 237, 243 , 500 A.2d 307 (1985), cert. denied, 305 Md. 419 , 504 A.2d 1152 (1986). Upon the satisfaction of the predicate state action requirement, a reviewing court must then invoke a second tier of scrutiny, the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 332-35 , 96 S.Ct. 893, 901-03 , 47 L.Ed.2d 18 (1976), to establish what procedural due process, if any, is constitutionally required. Roberts, 109 Md.App. at 644 , 675 A.2d 995 .

The instant appeal involves, essentially, a common law action by a private citizen for invasion of his .privacy by another private citizen. At no point during the course of events that gave rise to the inception of litigation was the State involved. Thus, this Court cannot properly reach a constitutional analysis of the statute upon which Warner’s claim is based. ⁴³⁵ Clearly, however, Warner’s medical records, documents in which he has a legitimate expectation of privacy, were published without his consent, without notice, or even an opportunity to be heard in opposition to the intended disclosure. Not until after the underlying arbitration did Warner learn of the dissemination through conversation with his treating physician.

In Dr. K. v. State Bd. of Physician Quality Assurance, 98 Md.App. 103 , 632 A.2d 453 (1993), Judge Cathell, writing for this Court, opined that one’s right to privacy in his medical records falls within the ambit of constitutional protection. Id. at 112 , 632 A.2d 453 . Dr. K. involved a State investigative board’s attempts to obtain a patient’s medical records subsequent to allegations that Dr. K. committed misconduct with that particular patient. We reasoned that the State’s compelling interest of investigation and, presumably, the contemporaneous safeguarding of public welfare, ultimately outweighed the privacy interests of both Dr. K and his patient.

That conclusion in no way diminished the constitutional right to privacy of one’s medical records. Dr. K. is distinguishable from the instant case. Here it is not a state actor who seeks to disclose confidential medical records in furtherance of societal interest, but rather a private individual, motivated by self-serving desires to defend a lawsuit that is pending against him, used the records. A. Privacy Whalen v. Roe, 429 U.S. 589 , 97 S.Ct. 869 , 51 L.Ed.2d 64 (1977), involved a New York statute that required physicians to submit to the state copies of all prescriptions written for all schedule II narcotic prescriptions.

The state archived the records, attempting to promote community health and discourage abusive prescribing and consuming practices. After considering the measures employed by the