Patients' privacy, medical board's authority collide

Patient safety and patient confidentiality are considered of equal, utmost importance. But when might one trump the other?

That's a question Massachusetts justices are pondering in a case that tests how far a state medical board can go to obtain patients' private medical records as part of an investigation into a doctor's medical conduct.

The state Supreme Judicial Court will decide whether the Massachusetts Board of Registration in Medicine can access the records of two dozen patients of a psychiatrist and pain management specialist whose prescribing practices are being probed by the state. The physician's name remains protected because the medical board has not filed a formal complaint against the doctor, his lawyer said. Oral arguments in Massachusetts Board of Registration in Medicine v. John Doe, MD, were heard in May. A decision was pending as of this article's deadline.

At issue is the state's psychotherapy-patient privilege, which generally protects mental health patients' confidential information from disclosure without their consent, as well as who can invoke it and when. The decision could set a precedent, as the case is believed to be the first before the high court to address a perceived conflict between the privilege statute and the medical board's investigatory powers.

The case began in 2008, when Massachusetts medical board investigators looked into a report from a physician who treated one of Dr. Doe's patients for an addiction to pain medication, according to court records. The board alleged that Dr. Doe prescribed narcotics without a valid medical reason and that he may have done so with diminished mental capacity. The doctor denies the claims.

After reviewing Dr. Doe's prescribing records at several pharmacies, the board sent him a letter requesting an interview and asking him to produce the records regarding the patient report, as well as 23 other patients.

At the interview, Dr. Doe turned over the records of the patient in question, which he says rebut any allegations of misconduct in prescribing Percocet. Dr. Doe said he never prescribed the drug to the patient. He informed the board that he required his patients to sign a contract agreeing to abide by his prescription and not to seek additional medications elsewhere. Because the patient violated the contract, Dr. Doe said, he discontinued his relationship with the patient and agreed to cooperate with the board, as authorized by the pact.

As for the 23 other patients, Dr. Doe refused to turn over their records, invoking the psychotherapy-patient privilege. That prompted the medical board to issue a subpoena for the documents. When Dr. Doe did not comply, the board sought a court injunction. A Suffolk County Superior Court in April 2008 ordered Dr. Doe to produce the records.

Physician or psychotherapist?

Siding with the medical board, the judge found that the privilege did not apply because Dr. Doe did not fit the statutory definition of a psychotherapist. Though the board did not deny that Dr. Doe was a psychiatrist, he did not "devote a substantial portion of his time to the practice of psychiatry," as required by the law, the court said. Instead, his practice focused on pain management.

The doctor appealed, and the Supreme Judicial Court directly took up the case. A court order prevents the medical board from obtaining the patient records while the litigation is pending.

Paul Cirel, Dr. Doe's attorney, said the medical board not only mischaracterized his client's practice but also used the tactic to sweep over a safeguard established by the Legislature, one the courts should not disturb.

"The Legislature, by creating this privilege, made a policy statement, and what is at stake is the very policy question of whether we as a society have put enough stock and faith in allowing mental health patients a safe haven where they can really unburden themselves without fear their records are going to be subpoenaed," said Cirel, a partner at Dwyer & Collora LLP in Boston. If the high court eroded such protections, "it would have a real chilling effect on the practice of medicine and socially on how we approach and encourage people to seek mental health treatment."

Treatment of chronic pain is a recognized subspecialty of psychiatry, Cirel said, and Dr. Doe's treatment focuses legitimately on the psychological components of his patients' pain. Any doubt as to whether Dr. Doe qualifies as a psychotherapist should have been resolved through a board hearing, which the doctor was denied by the lower court, Cirel added.

There are specific exceptions to the privilege, he said, which may be waived: for example, if patients pose a danger to themselves or others, if the patient files a medical liability action, or if there are suspicions of child abuse. But none of those carve-outs applies in this case, Cirel said. Nor has the board specified what type of information it is looking for regarding the additional 23 patient records.

If lawmakers had intended to create an exception for the board, they would have done so, Cirel said. Moreover, "it's for the Legislature, not the court, to create the balancing test for the board to have the ability to engage in law enforcement. And it's the patients' right," which Dr. Doe is asserting on their behalf, he said.

Of additional concern are the state medical board's efforts to access patient records at an early phase of an investigation before a formal disciplinary complaint is opened, said William Ryder, regulatory and legislative counsel to the Massachusetts Medical Society. The organization is not involved in the case but is monitoring it.

"There's a real question here about at what stage does a board have the need to go in and look at things," Ryder said. "Patients have a right to expect their records are not going to get looked through lightly or at all if the statute says they are protected."

The board can access patients' records with their consent, Ryder said. Once a formal complaint is opened, the agency has the power to subpoena records.

However, "if a patient hasn't been contacted or consented, and the board has not issued a formal complaint and initiated the process against a physician, then is that subpoena legal?" Ryder asked. Furthermore, "should state medical boards have the authority for their investigators to go into physicians' offices and see patient material any time they want? ... And where is the balance going to be?"

Privacy vs. patient safety

Medical boards argue, however, that balance tips in favor of public safety. Neither the Massachusetts Board of Registration in Medicine, nor the state attorney general's office, which represents the board, returned calls for comment.

The psychotherapist-patient privilege was aimed at protecting communications between a therapist and a patient, suggesting that drugs prescribed for pain management were not covered, the Massachusetts board argued in court documents.

But even if Dr. Doe were qualified to invoke the privilege, the state's interests in regulating the practice of medicine and in protecting the public safety and welfare from potentially dangerous doctors supersede the confidentiality concerns in this case, the board contends.

In a friend-of-the-court brief, the Federation of State Medical Boards argued similarly that without access to relevant evidence, boards could not fulfill their duties.

"The protection of the public requires that the board have timely, unfettered access to patient medical records of the physician under investigation," the FSMB said in its filing. The national organization was not available for comment by this article's deadline.

In its brief, the FSMB pointed to other state court decisions in which privacy rights gave way to greater public policy concerns. "The allegations in this [Massachusetts] case are very serious. ... Courts must balance public policies, but this maxim remains true: 'The protective privilege ends where the public peril begins.' "

The Massachusetts medical board said any patient communications or records it obtains relating to an investigation are for board use only and would remain confidential, as required by state law.

But that still ignores patients' rights to decide whether to waive their privacy, Cirel said. "Remember, the doctor doesn't have the privilege. It's the patient's privilege."