Md. State Bd. Of Physicians v. Eist

MARYLAND STATE BOARD OF PHYSICIANS

v.HAROLD I. EIST

No. 110

COURT OF APPEALS OF MARYLAND

September Term, 2007

Filed: January 21, 2011

Bell, C. J.

Harrell

Battaglia

Greene

Eldridge, John C. (Retired, Specially Assigned)

Raker, Irma S. (Retired, Specially Assigned)

Cathell, Dale R. (Retired, Specially Assigned)

JJ.

Opinion by Eldridge, J.

Bell, C.J., Raker and Cathell, JJ., dissent.

This is an action under the judicial review section of the Maryland Administrative Procedure Act¹ to review a reprimand and fine, imposed on a licensed physician by the Maryland State Board of Physicians, based upon the Board's conclusion that the physician had failed to cooperate with a lawful investigation conducted by the Board.² The basis for the Board's conclusion was the failure by the physician, respondent Dr. Harold I. Eist, to obey, timely, a subpoena for the production of certain patients' medical records in his possession. The Circuit Court for Montgomery County reversed the Board's decision, and the Court of Special Appeals affirmed the judgment of the Circuit Court. The intermediate appellate court held that the Board was not entitled to the records and that, therefore, Dr. Eist did not fail to cooperate with a lawful investigation.

We shall hold that, because neither Dr. Eist nor the patients took any appropriate action to challenge the subpoena, such as filing in the Circuit Court a motion to quash or a motion for a protective order, as required by the applicable statutes, and because Dr. Eist clearly failed to comply with the subpoena in a timely manner, the Board's decision was legally correct. Consequently, we shall reverse the judgments of both courts below and direct that the Board's decision be affirmed.

I.

In a letter dated February 19, 2001, the petitioner, the Maryland State Board of Physicians, received a complaint from the estranged husband of a patient of Dr. Harold I. Eist. Dr. Eist, a psychiatrist licensed to practice medicine in Maryland, had practiced for thirty-seven years at the time the complaint was filed. The complaint alleged that Dr. Eist had "over-medicated my wife and my sons" and detailed an incident in which Dr. Eist had "started calling [the complainant] a liar and yelling at [the complainant]." The letter further alleged that Dr. Eist had "lost any ability to practice medicine in a truly objective and professional manner."

On March 15, 2001, Harold Rose, a "Compliance Analyst" for the Board, wrote to Dr. Eist, notifying him that a complaint had been filed against him and attaching a copy of the complaint. The Board requested a written response within 21 days, and asked Dr. Eist to indicate whether his response could be released to the complainant. Along with the letter, the Board issued a subpoena duces tecum which stated:

"Pursuant to Sections 14-206(a) and 14-401(g) of the Health Occupation[s] Article of the Annotated Code of Maryland, YOU ARE HEREBY SUMMONED and COMMANDED by the BOARD OF PHYSICIAN QUALITY ASSURANCE OF MARYLAND to deliver IMMEDIATELY UPON SERVICE OF PROCESS a copy of all medical records of patients [names the wife and two sons of the complainant] treated at your facility; which materials are in your custody, possession or control.

"And by virtue of the authority of the said BOARD OF PHYSICIAN QUALITY ASSURANCE, such information is thereby made returnable within 10 (ten) days....

"FOR FAILURE TO OBEY this summons on petition of theBoard a court of competent jurisdiction may punish the person as for contempt of court, pursuant to the provisions of the Health Occupations Article of the Annotated Code of Maryland Section 14-206(b)."

The letter to Dr. Eist from the Board and the subpoena were dated March 15, 2001, but they were delivered to the wrong address. The same letter and subpoena were dispatched again by the Board on April 18, 2001, and were received by Dr. Eist on April 19, 2001. The Board agreed that the subpoenaed records were due ten days from April 19, 2001, the date when Dr. Eist actually received the subpoena.

Dr. Eist responded to the Board on April 20, 2001. His letter informed the Board that the complainant was not one of his patients, and that Dr. Eist had treated only the complainant's "estranged wife and, at times, three of their children." Dr. Eist reasoned that the complaint might have been motivated by the complainant's "bitterly contested" divorce litigation with Dr. Eist's patient, in which Dr. Eist had been called as a witness "concerning the children of the marriage." Dr. Eist stated to the Board as follows:

"I am not certain what I will be asked to respond to in the course of your investigation, nor what information received in confidence from [my patients] might come into the record. It is my belief that they are required to be notified of this matter and any request for information which you might make of me concerning their treatment and their confidential communications to me. I will be pleased to cooperate fully with any investigator with the consent of the patients (including any guardian necessary to waive the children's privilege), or, if the patients object and take steps to protect their communications with any appropriate decision overruling their objections and requiring that I furnish the information. At this point, they have not filed a complaint nor in any other way consented to release of information to BPQA so far as I know."

On May 1, 2001, Dr. Eist forwarded a copy of the subpoena to his patient, the wife of the complainant, and requested that she inform him "as soon as you can, whether you, or your attorney, are taking any action to oppose my compliance with this subpoena." Dr. Eist concluded his letter by stating that, if he had not heard from her "within one week, I will forward the records to the Board." Dr. Eist sent a copy of this letter to Mr. Rose of the Board.

On May 4, 2001, Dr. Eist received a copy of a report filed by the children's court-appointed attorney. The report, filed with the Circuit Court for Montgomery County, stated that the court-appointed attorney refused to waive the "privilege" that existed between the children of the complainant and Dr. Eist, or "any mental health professional."³ Dr. Eist sent this report to the Board, along with a letter in which he set forth a transcription of a telephone message which he had received from his patient, the wife of the complainant. In her message, his patient stated: "I refuse to allow you to release my medical record to the medical board." Additionally, his patient's attorney sent a letter, dated May 14, 2001, to Mr. Rose of the Board, noting that the patient "does not waive her privilege with Dr. Eist and has asked that he not release her records in response to the request." The letter went on to state that the patient wanted the Board to know that "she has absolutely no complaints about Dr. Eist" and that "he hasalways conducted himself in a professional manner."

The Board responded to Dr. Eist in a letter dated June 27, 2001, from Frank Bubczyk, another "Compliance Analyst" with the Board. The letter informed Dr. Eist that, based on the complaint received, the Board had opened an investigation. The letter also included another request for the medical records covered by the subpoena. Moreover, the letter informed Dr. Eist that, "[f]or your information, receipt of those medical records is not contingent on the consent of the patient/s." The letter cautioned Dr. Eist that failure to produce the requested records "may be grounds for disciplinary action pursuant to Md. Code Ann. Health Occ. § 14-404 (a)(33) for fail[ure] to cooperate with a lawful investigation conducted by the Board."

On July 11, 2001, Dr. Eist's attorney sent to the Board a letter stating that

"Dr. Eist is under the impression that he does not have his patients' permission to reveal their confidences, and that no court has weighed the necessity for violating their confidences based upon the unsupported allegations of someone with a clear conflict of interest, and a desire to violate those confidences."

The letter reiterated that "Dr. Eist does not dispute the authority of the [Board] to examine these matters," and if a court agreed that the records could be examined, "Dr. Eist certainly will comply." The letter also discussed the patients' privacy interests.

In a subsequent letter to the Board dated July 16, 2001, Dr. Eist detailed his relationship with the complainant, informed the Board that the complainant "has never been my patient," and stated that the complainant "is either confused or outrightdishonest in his assertions." Dr. Eist also submitted to the Board supplemental documents concerning his relationship with the complainant and a letter from the complainant's wife praising the care that she and her children had received from Dr. Eist.

During the entire process, neither Dr. Eist nor his patients instituted any judicial proceedings to quash the subpoena issued by the Board or to obtain a protective order.

On December 19, 2001, the Board voted to charge Dr. Eist with a violation under Maryland Code (1981, 2009 Repl. Vol.), § 14-404(a)(33) of the Health Occupations Article. That provision authorizes the Board to

"reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee: * * * (33) Fails to cooperate with a lawful investigation conducted by the Board......"⁴

The charge was officially issued by the Board on February 4, 2002. The February 4, 2002, document stated that a "resolution conference" had been scheduled for April 3, 2002, at the Board's Office, and a "prehearing conference in this matter" had been scheduled for June 6, 2002, in the Office of Administrative Hearings.

After the Board had formally instituted charges against Dr. Eist, he again wrote to his patient's attorney informing the attorney that

"to try and bring this matter to a close, we are hereby giving you and your client notice that unless we hear from you within one week that (1)

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