Psychiatric News April 18, 2003
Volume 38 Number 8
© 2003 American Psychiatric Association
p. 16
Psychiatrist in Legal Fight Over Privacy of Records
Ken Hausman
Harold Eist, M.D., who was president of APA in 1997-98, is in round 3 of a fight with a state medical board that ordered him to turn over patient records in conjunction with a legal proceeding.
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Former APA president Harold Eist, M.D., has taken on the state of Maryland in a case involving patient privacy.
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Former APA president Harold Eist, M.D., no stranger to fighting for patients’ rights, is in the midst of a legal battle of his own over the confidentiality of a patient’s psychiatric records.
Eist has gone to court to appeal a $5,000 fine and reprimand imposed by Maryland’s Board of Physician Quality Assurance (BPQA) after Eist refused to turn over psychiatric records of a mother and two children he was treating during the course of a divorce proceeding. The father petitioned to have the children’s psychiatric records available during the legal proceedings surrounding the divorce and children’s custody, because he was alleging that Eist was "overmedicating" the mother and children.
Eist informed the board by letter that because of "conflicting ethical and legal obligations," he was refusing to hand over the records after the mother and her children’s attorneys refused to give him permission to do so. The BPQA ordered Eist to provide the records for it to review, and his refusal resulted in the board’s levying the fine based on the charge that he had failed "to comply with a lawful investigation." The board’s penalties against Eist were reported to the National Practitioner Data Bank.
Eist eventually released the records in question to the BPQA after the patient and the children’s attorney registered no opposition to his doing so. The BPQA, however, refused to end the proceedings, insisting he be punished for his original refusal to cooperate with its request for the records by a deadline it set.
Because its proceeding was contested, the BPQA then referred the case to an administrative law judge, who ruled that it was the BPQA, not Eist, that was in violation of the law.
Administrative Law Judge Cathy A. Barchi’s ruling cites the U.S Supreme Court’s decision in Jaffee v. Redmond about the privileged nature of communications between psychotherapist and patient. Barchi notes that the court’s conclusion that "disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment."
She ruled that the BPQA has no "absolute" or "unqualified" right to obtain psychiatric records when the patient objects to disclosure, and the need for such records is not "compelling." In the face of the patient’s objections in this case, it should have gone to an independent fact finder, she pointed out.
Regarding the board’s charge that Eist refused to cooperate, the judge ruled against the BPQA as well. Since Eist had responded to the board’s request for the records with a letter explaining his objections and asking how to proceed in light of them, Barchi faulted the BPQA for not responding to Eist in the seven months between receipt of his letter and its imposition of penalties.
The BPQA, she noted, "apparently expected [Eist] to ignore the protestations of his patients and acquiesce to the board’s request for confidential information." She added that she could find no language in Maryland’s statute regarding privileged communication that would intend "such an inequitable result."
The judge also said she was unwilling to accede to the board’s abrogation of patient confidentiality in light of laws upholding it in all states and at the federal level.
Barchi concluded, "It was the dilatory and extralegal actions of the board, not [Eist], that compromised the efficient review of the [father/husband’s] allegations" concerning overmedication.
Eist said that APA President Paul Appelbaum, M.D., wrote a letter to Barchi "stressing the importance of confidentiality in psychiatric patient care."
Despite Barchi’s ruling in Eist’s favor, the BPQA did not back down on its penalties. Eist paid the fine and filed an appeal with the Montgomery County (Md.) Circuit Court. The fine will be refunded if he wins his appeal.
The BPQA maintains, however, that Barchi’s ruling is in error on several grounds and accuses her of "second-guessing long-settled [BPQA] precedent." It challenges her interpretation of a Maryland statute allowing Eist to decline to turn over patients’ records without their permission and in the absence of a compelling state interest. The BPQA points out in its response to Barchi’s ruling, however, that the statute reads, "A health care provider shall disclose a medical record without the authorization of a person of interest. . .in accordance with a subpoena for medical records. . . to health professional licensing and disciplinary board for the sole purpose of an investigation. . . or discipline of a health professional or the improper practice of a health professional."
The board also disputes the conclusion that psychiatric patients have "a constitutional interest in the privacy of [their] medical records that is so weighty that it overcomes the clear statutory mandate authorizing the Board to obtain these records in the course of an investigation."
It cites a state appeals court ruling in which the court said that a patient’s constitutional privacy rights "are outweighed by the public’s compelling interest in the conduct of medical board investigations."
Finally, it contends that Barchi incorrectly cited Jaffee v. Redmond since that case involved an interpretation of the Federal Rules of Evidence that "reached no constitutional issues." 
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