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 Dr. Harold I. Eist
Disciplinary board says it must have access to patient records
STEVE LASH Daily Record Legal Affairs Writer
May 4, 2008 7:58 PM
The clash between a doctor’s ethical responsibility not to disclose patient confidences and the state’s strong interest in investigating allegations of physician misconduct will be argued Tuesday before the Court of Appeals.
At the center of the controversy — which has attracted national attention — is Dr. Harold I. Eist, a respected Bethesda psychiatrist whom the Maryland State Board of Physicians has reprimanded and fined for defying its request for patient records during its investigation that he had allegedly over-prescribed medication.
The allegation was later found to be unsubstantiated and lower courts have overturned the board’s punishment of Eist for refusing to disclose patient records, prompting the medical agency’s appeal to the state’s highest court.
Eist, who has been battling the board since 2001, said he has difficulty understanding why the agency, which enforces medical standards, has sought to punish him for trying to preserve the confidentiality of patient records.
Preserving a patient’s confidentiality is “the primary element in quality psychiatric care,” said Eist, a former president of the American Psychiatric Association and the Washington Psychiatric Society.
The board, which licenses, regulates and disciplines doctors, declined to talk about the case, citing its policy against commenting on pending litigation. But in papers filed with the Court of Appeals, the agency argues that the state’s interest in protecting the public from medical wrongdoing is so compelling that it supersedes the privilege and enables investigators to get medical records related to their investigations.
“Disclosures of private medical information to doctors, to hospital personnel, to insurance companies and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient,” the agency notes.
The brief quotes from the U.S. Supreme Court’s 1977 ruling in Whalen v. Roe, which upheld the ability of state health agencies to get and keep copies of drug prescriptions containing patient names.
“Requiring such disclosures to representatives of the state having responsibility for the health of the community does not automatically amount to an impermissible invasion of privacy,” it argues.
That reasoning drew scorn from Eist, who rejected the idea that the profession’s standards can be maintained only by breaching the fundamental tenet of confidentiality.
“It’s like during the Vietnam era: We had to destroy the village to save it,” he said.
National battle
This case is not just a fight between a lone doctor and one state’s agency, though. About 40 medical associations across the country and the Federation of State Medical Boards, which represents licensing agencies in U.S. states and territories, have submitted competing briefs to Maryland’s top court.
The medical groups, in their brief, echo Eist in stating that forcing a doctor, particularly a psychiatrist, to surrender individual medical records would undermine patient care.
Patients would be less candid about the often very personal nature and extent of their mental or physical ailments if they believe the doctor can be compelled to disclose this intimate information to the state, said the brief’s author, attorney James C. Pyles, a name partner in the Washington office of Powers Pyles Sutter & Verville P.C.
“If you don’t have a right to privacy, then you can’t practice psychiatry,” Pyles said in an interview. “Patients tell their psychiatrist things that they won’t even tell members of their own family.”
The groups Pyles is representing include the American Academy of Psychiatry and the Law; American Psychiatric Association; the National Coalition of Mental Health Professionals and Consumers; and psychiatric associations for Maryland as well as Delaware, Mississippi, New Jersey, Oklahoma, Virginia and Vermont.
But the Federation of State Medical Boards counters that a patient’s right to privacy must give way to the need of physician-licensing agencies to get patient medical records from doctors under investigation for allegedly harming their patients.
“The protection of the public requires that the board have timely, unfettered access to patient medical records maintained by the physician under investigation,” the federation states in its brief to the Court of Appeals. “To adequately protect the public, the state medical boards must have the discretion to determine whether a copy of a patient’s medical records is necessary to fully and adequately investigate the allegations, without having to obtain patient consent … or obtain a court order.”
Care upheld
The battle between the board and Eist began in March 2001, when the agency received a complaint from a man who said his estranged wife and one of their two sons had been medicated by the doctor to the point that she became psychotic, seriously anxious and depressed and the boy had become increasingly agitated. The man and his wife were in a heated divorce and child custody proceedings at the time of his allegations, Eist said.
The board that month sent the complaint to Eist, along with a request for his response and a subpoena telling him to “deliver immediately upon service of process a copy of all medical records of [the woman and her two children]; treated at your facility; which materials are in your custody, possession or control.”
Eist said he called the board, telling the agency that the allegations were false and that he would not release the records without the patients’ consent, which had not been given.
The board told Eist in July 2001 that his compliance with the subpoena was not contingent on patient consent and that failure to surrender the records was a violation of the state Medical Practice Act, which requires doctors to cooperate with a lawful board investigation. Eist continued to refuse to surrender the records, and the board in February 2002 charged Eist with failing to cooperate, according to court documents.
In March 2002, Eist’s representative told the patients’ lawyers that the doctor would release the records unless they objected, which they did not. About three weeks later, Eist surrendered the records, court documents state.
The board submitted the records to a peer-review board, which concluded that the allegation of substandard care should be dismissed.
The board, however, did not withdraw its claim that Eist had failed to cooperate by refusing to surrender the patient records. The board issued a reprimand and fined him $5,000. Eist challenged the punishment, arguing that he and his patients had a constitutional right to privacy in the medical records which trumped the board’s request for the documents.
That argument won before two administrative law judges and twice before the Montgomery County Circuit Court. The Court of Special Appeals agreed last September, saying that the board’s interest in investigating the complaint did not supersede the patients’ privacy interest and as a result it cannot be found that Eist “failed to cooperate with a lawful investigation conducted by the board.”
Compliance optional?
The state board, in its brief to the Court of Appeals, argues that the lower courts failed to weigh appropriately the state’s need for patient records when investigating alleged medical misconduct and the doctor’s ethical requirement to preserve patient confidentiality. The records sought from Eist concerned primarily the drugs and dosages prescribed by the physician, data which medical agencies routinely collect as part of their compelling interest in protecting the health of all residents who seek medical care, the board states.
“Permitting the physician the option of defying a subpoena … would be contrary to the statutory scheme and would effectively give a physician under investigation the ability to delay the investigation indefinitely,” Attorney General Douglas F. Gansler and Assistant Attorney General Steven M. Sullivan wrote in the state agency’s brief.
But Eist’s attorney countered that the board disregarded the psychiatrist’s ethical obligation to protect the privacy of his patients during the agency’s investigation of what turned out to be unsubstantiated allegations of medical misconduct.
“Because an atmosphere of confidence and trust between a mental health professional and his or her patient is a sine qua non for successful mental health care, the confidentiality accorded mental health records is special, and differs from that attaching to any other medical record,” wrote attorney Alfred F. Belcuore, a name partner in the Washington office of Montedonico, Belcuore & Tazzara P.C.
“Throughout this dispute, despite clear precedent to the contrary, the board has stubbornly insisted that its right to records is absolute, not subject to any case-by-case balancing or objective assessment of its alleged need.”
The case is Maryland State Board of Physicians v. Eist, Sept. Term 2007, No. 110.
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