Board of Physicians v. Eist

• Decision Date: 13 September 2007
• Docket Number: No. 329, Sept. Term, 2006.,329, Sept. Term, 2006.
• Citation: 932 A.2d 783,176 Md. App. 82
• Parties: MARYLAND STATE BOARD OF PHYSICIANS v. Harold I. EIST, M.D.
• Court: Court of Special Appeals of Maryland

932 A.2d 783

176 Md. App. 82

MARYLAND STATE BOARD OF PHYSICIANS v. Harold I. EIST, M.D.

No. 329, Sept. Term, 2006.

Court of Special Appeals of Maryland.

September 13, 2007.

Thomas W. Keech (J. Joseph Curran, Jr. on the brief), Baltimore, for appellant.

Alfred F. Belcuore (on the brief), of Washington, DC, for appellee.

James C. Pyles (on the brief), of Washington, DC, for Amici Curiae.

Argued before DEBORAH S. EYLER, KRAUSER and WILLIAM W. WENNER, (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, J.

The Maryland State Board of Physicians ("Board") received a written complaint against Harold Eist, M.D., a licensed psychiatrist, alleging that he was over-medicating three patients: the complainant's estranged wife (Patient A) and two of their children (Patients B and C).¹ At the time, the complainant and Patient A were litigants in an acrimonious divorce case, in which Dr. Eist had submitted an affidavit supporting Patient A's claim for custody.

In response to the complaint, the Board issued a subpoena duces tecum commanding Dr. Eist to produce "a copy of all medical records of" the three patients. When Dr. Eist informed the patients that their records had been subpoenaed, they invoked their federal constitutional right of privacy in the information in their records. Dr. Eist communicated that fact to the Board, as did counsel for the patients. Neither the Board nor Dr. Eist nor the patients instituted any legal proceeding to enforce or quash the Subpoena.

Eleven months later, the Board charged Dr. Eist with failing to cooperate with a lawful investigation conducted by the Board, in violation of Md.Code (1981, 2000 Repl.Vol., 2004 Supp.), section 14-404(a)(33) of the Health Occupations Article ("HO"). It again demanded that he produce the subpoenaed records. Dr. Eist informed his patients (and their counsel) of the charge, asked whether they still were invoking their privacy rights, and stated that, unless he heard from them to the contrary, he would assume that they were not doing so. When neither the patients nor their counsel objected to the records' being disclosed, Dr. Eist turned the patients' records over to the Board.

Ultimately, a peer review evaluation of the over-medication allegation was favorable to Dr. Eist and he was not charged with a standard of care violation. See HO section 14-404(a)(22) (authorizing the Board to discipline a physician for "[f]ail[ing] to meet appropriate standards as determined by appropriate peer review. ..."). Nevertheless, the Board pursued the failure to cooperate charge. That charge came before an Administrative Law Judge ("ALJ"), who made a summary recommendation in favor of Dr. Eist. The Board rejected that recommendation and found Dr. Eist guilty of the charge.

In an action for judicial review, the Circuit Court for Montgomery County reversed the Board's decision and remanded the matter to the ALJ for further proceedings. After a contested case hearing, the ALJ made findings of fact and conclusions of law, again recommending a disposition in favor of Dr. Eist. The Board again rejected that recommendation, finding instead that Dr. Eist had failed to cooperate with a lawful investigation conducted by the Board by not producing the subpoenaed records. In a second action for judicial review, the circuit court reversed the Board's decision. The case at bar is the Board's appeal from that judgment.

We shall hold that, accepting the factual findings of the Board in its decision, to the extent they are supported by substantial evidence in the agency record, the evidence before the Board was legally insufficient to support its ruling that Dr. Eist failed to cooperate with a lawful investigation conducted by the Board. Accordingly, we shall affirm the judgment of the circuit court.

PERTINENT STATUTES AND CASE LAW

The Medical Practices Act

The professional conduct of physicians licensed in Maryland is regulated by the legislature pursuant to the Medical Practices Act ("MPA"), codified in HO sections 14-101 et seq. At the time pertinent to this case, the Act was administered by a 15-member Board.² HO § 14-202(a). The Board, comprised of physicians and consumers, is responsible for the licensure and discipline of physicians in Maryland. It has adopted regulations governing the disciplinary process that are codified in the Code of Maryland Regulations ("COMAR") 10.32.02.

The Act authorizes the Board to reprimand a licensee, place a licensee on probation, or suspend or revoke a license to practice medicine for enumerated reasons, including the aforementioned failure to meet appropriate standards as determined by appropriate peer review, HO § 14-404(a)(22) and failure to cooperate with a lawful investigation conducted by the Board, HO § 14-404(a)(33). See Solomon v. Bd. of Physician Quality Assurance, 155 Md.App. 687, 845 A.2d 47 (2003) (affirming on judicial review revocation of a doctor's license to practice medicine for failure to cooperate with a lawful investigation of the Board).

When the Board receives a complaint alleging facts that may constitute grounds for disciplinary action under the MPA, it initiates a preliminary investigation. HO § 14-401(a); COMAR 10.32.02.03A. The Board is vested with the authority to issue subpoenas in connection with any investigation and any hearing before it. HO § 14-401(h).

If a complaint alleges that the licensee failed to adhere to appropriate standards of care in his treatment of a patient or patients and, after an initial investigation, the Board elects to pursue further investigation, the Board then refers the complaint to the Maryland State Medical Society for physician peer review. HO § 14-401(c)(2); COMAR 10.32.02.03(B)(1). At the time relevant to this case, the Maryland State Medical Society was known as the Medical and Chirurgical Faculty of Maryland ("MedChi"), so we shall use that designation.

The Board and MedChi have adopted a "Peer Review Handbook" for the peer review process. MedChi prepares a report addressing the allegations against the physician and submits it to the Board. After receiving the MedChi report, the Board determines whether reasonable cause exists to charge the physician with a failure to meet appropriate standards of care. COMAR 10.32.02.03(B)(2). If the Board files a charge, it refers the matter to an administrative prosecutor and sends notice to the physician. COMAR 10.32.02.03(C).

At that point, the physician is entitled to a contested case hearing before an ALJ, in the Office of Administrative Hearings ("OAH"), pursuant to the Administrative Procedure Act ("APA"), Md.Code (1984, 1999 Repl.Vol.), section 10-201 et seq. of the State Government Article ("SG"); HO § 14-405(a); see also COMAR 10.32.02.03(D). Following the hearing, the ALJ issues findings of fact, conclusions of law, and a proposed disposition. COMAR 10.32.02.03(E)(10). When the charge against the physician is failure to meet appropriate standards of care in violation of HO section 14-404(a)(22), the standard of proof is clear and convincing evidence. HO § 14-405(b)(3).³

Either party may file exceptions to the ALJ's findings and proposed disposition. COMAR 10.32.02.03(F).

The Board is not bound by the decision of the ALJ. HO § 14-405(e); see Board v. Bernstein, 167 Md.App. 714, 721, 894 A.2d 621 (2006). Compare Md.Code (1994, 2004 Rep l. Vol.), § 11-110(d)(3) of the State Personnel and Pensions Article (providing that "the decision of the [OAH] is the final administrative decision"). After receiving the ALJ's proposed decision, the Board must review the record and the ALJ's proposal and hold a hearing on any exceptions. COMAR 10.32.02.03(F). It then issues a final decision stating its findings of facts, conclusions of law, and a disposition of the charge. COMAR 10.32.02.03(E)(10).

The Board's final decision is subject to judicial review in the circuit court in accordance with the APA, and then to appeal to this Court. HO § 14-408(b).

The Statutory Psychiatrist-Patient Privilege and The Maryland Confidentiality of Mental Health Records Act

Maryland law recognizes a psychiatrist-patient privilege, which is codified at Md. Code (1973, 2006 Repl.Vol.), section 9-109 of the Courts and Judicial Proceedings Article ("CJ").⁴ That provision states, in pertinent part:

(b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient's authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:

(1) Communications relating to diagnosis or treatment of the patient; or

(2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.

The statute sets forth exclusions, none of which pertain to health care professional disciplinary investigations.⁵

In addition to the privilege that attaches to communications between a psychiatrist and a patient, psychiatric treatment records are medical records covered by the Maryland Confidentiality of Medical Records Act ("CMRA"), codified in Md.Code (1982, 2005 Repl.Vol., 2006 Supp.), section 4-301 et seq. of the Health General Article ("HG"). Those statutes require that health care providers keep patient records confidential and disclose them only in accordance with the dictates of that subtitle or as otherwise provided by law. HG § 4-302(a). Dr. Eist is a "health care provider" within the meaning of HG section 4-301(g).⁶

HG section 4-306(b)(2) governs disclosure of medical records for use in investigations without the authority of a person in interest (which in this case would be Patient A and any person authorized to act on behalf of Patients B and C).⁷ As relevant to this case, "[s]ubject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in [HG section] 4-307," a health care provider "shall disclose a medical record without the authorization of a person in...