Maryland board can't punish doctor for defending privacy of patients

A Maryland appeals court handed a victory to a physician who stood up to the state medical board in defense of his patients' privacy rights.

Judges unanimously found that Bethesda, Md., psychiatrist Harold I. Eist, MD, did nothing wrong when he refused to immediately turn over medical records for three of his patients to the Maryland Board of Physicians because the patients objected.

The agency charged Dr. Eist with failing to cooperate with an investigation into his conduct and levied a $5,000 fine against the doctor.

Dr. Eist said he was just honoring his patients' wishes. If they knew their confidentiality could be compromised, "it would devastate the trust people have built up over the centuries in the doctor-patient relationship going back to the Hippocratic oath," said Dr. Eist, a former American Psychiatric Assn. president.

The Maryland Court of Special Appeals agreed and said the board cannot ignore patients' constitutional rights to medical privacy when investigating a third-party complaint.

Although Maryland law gives the board authority to obtain medical records without patient consent, the court said that right is not absolute. Instead, judges said it's up to the board -- not patients or their doctors -- to show good reason for overriding patient privacy to access information that, if disclosed, could harm patient care.

"When the governmental interest is not a compelling one that outweighs the individual's privacy right, the records may not be disclosed," the Sept. 13 opinion stated. If those competing interests aren't balanced, "the psychiatrist-patient relationship ... can be damaged merely by the threat that the records containing the patient's most personal thoughts will be turned over to others to examine," the court said.

The board is considering an appeal to the state's highest court, the Maryland Court of Appeals. A spokeswoman for the Maryland Attorney General's office, which represents the board, declined to comment further. It would be up to the high court to accept the case.

Patient privacy prevails, for now

If the ruling stands, doctors say it could prove an important win for patient privacy. It also recognizes the ethical dilemma physicians often face when medical boards overstep their bounds, and takes doctors out of the middle, they said.

"These days doctors feel so vulnerable to all kinds of third-party intrusions," said Delaware psychiatrist Janis G. Chester, MD, who is president of the American Assn. of Practicing Psychiatrists. The group, along with the APA and more than two dozen state and national mental health organizations, jointly filed a friend-of-the-court brief in support of Dr. Eist.

"The real significance of this [decision] is that doctors can follow medical ethics, and that boards have to follow medical ethics, rather than doctors being torn" between protecting patient privacy and facing a board reprimand, Dr. Chester said.

Attorney James C. Pyles, who wrote the doctors' brief, said that because the decision turned on an interpretation of constitutional privacy rights, it could impact other states.

And even though the case involved mental health records, the ruling could apply to other types of sensitive medical information -- for example, HIV or cancer tests, abortion records and treatment for alcohol problems, legal experts say.

Stephen H. Johnson, general counsel to MedChi, the Maryland State Medical Society, which also joined the brief, said the decision acknowledges that physicians can assert patients' privacy rights on their behalf: "Doctors are custodians of their patients' rights in this area, and this [ruling] is a recognition of that."

He added that board threats to charge doctors with interfering with an investigation are not uncommon, and "we hope this [decision] will serve as a check on that."

Dr. Eist's case arose when the husband of a patient involved in a divorce complained to the board in 2001 that Dr. Eist was overmedicating his wife and two children. Dr. Eist had treated all three, and also had submitted a court affidavit supporting the wife in a custody dispute.

The board requested all three patients' medical records, but Dr. Eist initially refused to release them because his patients hadn't given consent. When the patients didn't file a formal court objection to the board's subpoena, Dr. Eist eventually turned over the files. The board dropped its investigation into Dr. Eist's conduct, but still reprimanded him for failing to cooperate.

Dr. Eist fought the accusation on five occasions. In each instance, lower court judges dismissed the charges against Dr. Eist and found that the board did not have unfettered access to patient records.

The board argued that it has a statutory right to obtain such documents and that its interest in protecting the public health automatically trumps patients' privacy rights, court records show.

The appeals court rejected that argument.

Judges noted that although patient privacy rights are not absolute, government officials must consider certain factors before assuming they can access confidential information. They include: the type of records sought; the potential harm to the patient if the files are disclosed; the government's need for the records; safeguards in place to prevent unauthorized disclosures; and state laws.

The court said that in cases where a patient or a doctor raises a privacy objection, the burden is on the board to get a court order.

Pyles said the ruling is not likely to impede board investigations because the agencies still have other ways to get the information they need.