Maryland doctor fights board reprimand

In a lawsuit that pits a physician's duty to protect patient confidentiality against a medical board's request for records, a Maryland psychiatrist is fighting a fine and reprimand the Maryland Board of Physicians levied against him on charges that he did not cooperate with a board investigation.

Harold I. Eist, MD, who is based in Bethesda, Md., and is an American Psychiatric Assn. past president, says he was not uncooperative. Dr. Eist said that he was merely abiding by his patients' wishes when he did not immediately turn over their medical records to the board.

But the Maryland Board of Physicians, formerly known as the Maryland State Board of Physician Quality Assurance, maintains that its right to medical information during an investigation outweighs a patient's right to privacy.

Organized medicine is closely watching Dr. Eist's legal challenge, with several psychiatric organizations filing a joint friend-of the court brief on the physician's behalf. Psychiatrists believe that letting the fine and reprimand stand will put patient confidentiality at risk and negatively impact patient access to care.

"There is no doubt this psychiatrist listened to his patients," said Jim Pyles, who serves as counsel for the American Psychoanalytic Assn. and who wrote a brief supporting Dr. Eist on behalf of several psychiatric organizations. "He asked his patient if he could provide her records, and the patient said 'No.' "

The medical board, however, believes that it has a statutory right to subpoena and collect patient records without the patient's authorization, especially when the investigation is in the interest of the public's health.

Maryland law states the board can discipline any licensed physician who "fails to cooperate with a lawful investigation by the board," said Tom Keech, Maryland assistant attorney general who serves as counsel to the board. The law does not specifically state that the physician must comply with the board's subpoena, he said.

Dr. Eist's lawsuit has been on a legal odyssey since 2001, starting with an administrative law judge's initial review that recommended the board dismiss its charge against Dr. Eist. The board, however, decided to levy a $5,000 fine and reprimand against Dr. Eist. The physician appealed the decision to a state circuit court, which reversed the medical board's finding.

The case then got a second review by an administrative law judge and that was in Dr. Eist's favor. From there, the case went back to the medical board, which has yet to make a decision.

Eist v. Maryland State Board of Physician Quality Assurance, could go back to the circuit court on appeal if the board again sanctions Dr. Eist, said Alfred Belcuore, the Washington, D.C.-based attorney representing the physician.

Divorce hearing prompts investigation

Dr. Eist's case stems from a divorce involving a woman who was under the physician's care. Her children were also his patients. Soon after Dr. Eist provided an affidavit for the court in support of the woman, her estranged husband filed a complaint about him with the medical board.

The board requested the patients' medical records, but Dr. Eist refused to release them without his patients' consent. The mother did not agree to release her records or her children's. Dr. Eist complied with the woman's wishes even after he received a letter from the board telling him that state law obligated him to turn over the information.

While the patient later agreed to let Dr. Eist turn over her and her children's records, the prosecutor for the Maryland board ultimately charged Dr. Eist with failing to cooperate. And after the board dropped the investigation into Dr. Eist's conduct, it continued to pursue the failure-to-cooperate claim.

In remanding the case back to the medical board in 2003, Montgomery County Circuit Judge Michael Mason said Dr. Eist should have either turned over the medical records or brought the case to court rather than simply not comply with the board's request.

However, he disagreed with the board's position of having an absolute right to the documents. Mason wrote that when there are competing interests, such as a public investigation and private rights, physicians and patients "have the right to have a court analyze the competing needs and make a determination of whether or not the public right for this information outweighs the patient's right in this particular case with respect to that information."

Some laws more specific

Although Maryland doesn't specifically spell out whether a physician must comply with a subpoena, some states are more specific in defining what a physician is required to do in these situations and what authority a medical board has in an investigation.

Ohio, for example, requires a doctor to comply with a medical board records request or subpoena, said Tom Hess, co-chair of the health and medicine practice group with Buckingham, Doolittle & Burroughs LLC in Columbus. While fighting a medical board's subpoena in the state "would be for naught," Hess said he advises his clients to alert him if they receive a request so they can go through the file and find out why the board is seeking the information. "A lot of times, physicians forget they do have due process," he said.

Because an investigation in Ohio is confidential, patient information is not compromised. If public charges are filed, the patient's name and any identifying elements about the case aren't entered into public record, Hess said.

A court's reaction to a dispute may also depend on the information the physician is trying to protect, said Robert Belfort, an attorney with Manatt, Phelps & Phillips LLP in New York. Courts may be more sensitive to cases with records related to psychotherapy, HIV, or abortion, he said. Still, "when physicians get this request, it's important to understand the procedural requirements for dealing with them," Belfort said.

"It's not only understanding the general principle of protecting confidentiality," but also knowing how to proceed when met with a request, he said.