The opinion
| FILED & ENTERED
STATE OF MAINE | SUPERIOR COURT chprrior COURT
PENOBSCOT, SS. : Docket No. AP-03-19 :
MAR 1 1 20th AMM- PEN~ 3/11 004
pa
JAMES McDONALD, Ph.D., PENOBSCOT COUNTY
Appellant,
)
V. ) DECISION AND JUDGMENT
)
BOARD OF OSTEOPATHIC __) nee
LICENSURE, ) BU
Respondent. ) he
FACTS APE 16 20n
The facts in this matter are not in dispute. The Respondent received a report
from a psychiatrist pursuant to 24 MRSA §2506 suggesting that his female patient had
engaged in a sexual relationship with her primary care physician. Such a relationship
creates a presumption of incompetent and unprofessional conduct. See Regulations of
Board of Licensure in Medicine, 02-383 C.M.R. Chapter 10, Sexual Misconduct. The
Respondent is charged with the duty to investigate such misconduct upon the part of
licensed physicians and impose disciplinary sanctions where appropriate. 24 MRSA
§2506, 2510.
The Respondent's investigator interviewed the psychiatrist and patient regarding
these allegations. Although the patient asserted that her psychiatrist had misunderstood
her statements, the investigator learned that similar statements may have been made to
the Appellant while she was in therapy with him.
The Respondent caused Appellant to be served witha subpoena requiring him
to disclose any statement s by his patient which related to the alleged sexual
misconduct by her primary care physician. The Appellant reports that the patient has
refused to authorize him to disclose any information to any degree. He filed a Motion to
Vacate the subpoena which had been served earlier. The Respondent denied the motion
and the Appellant filed the instant appeal.
DISCUSSION
As a threshold matter, this court must determine whether the Respondent has
the authority to act upon the Appellant’s motion to vacate the subpoena. 5 MRSA
§11007(4). At the heart of this issue is the fact that health care records are entitled to
confidentiality by law and health care professionals are subject to ethical rules
regarding the disclosure of such records. In determining the validity of the subpoena,
the Respondent must necessarily consider the legal implications of these confidentiality
laws and professional regulations.
Appellant argues that these issues are beyond the authority of the Respondent to
interpret or apply. However, the Respondent's duties center upon complaints and
reports regarding patient care in almost every instance. The Respondent must consider
issues of confidentiality and privilege in virtually every occasion when it obtains health
care records by legal process. Pursuant to 5 MRSA §9060(1)(C), it must rule on motions
to quash. Needless to say, the act of quashing a subpoena based upon issues of
confidentiality and privilege requires interpretation of the legal issues raised thereby.
The court finds little difficulty in concluding that the Respondent's denial of the motion
to vacate the subpoena was well within its legal authority.
Rule 503 of the Maine Rules of Evidence creates a physician and
psychotherapist/ patient privilege. This is a rule of evidence which is applied to
administrative hearings by licensing boards pursuant to 5 MRSA §9057(1). The Rules of
Evidence concern the admissibility of evidence at hearings. They establish parameters
for the sources and availability of information to be submitted to the fact finder. They
do not affect non-judicial matters such as investigations or preliminary evaluations. An
agency or individual may acquire information which is not otherwise unavailable to
them by law which could not be used in any court or adjudicative proceeding. Rule 503
does not prohibit such.
By contrast, statutory law creates rules of confidentiality which apply across the
board to all matters. 22 MRSA §1711-C. However, these rules also create exceptions.
22 MRSA §1711-C (6)(F-2), (I) and (J). These exceptions are not taken lightly by the
Legislature or the courts ~ they allow deviations from the rules which patients believe
will render their conversations with their health care providers private and confidential.
They create, in effect, a forced breach of the relationship between patient and doctor.
One circumstance which the Legislature has recognized as justifying the
disclosure of confidential records and conversations occurs when there is cause to
believe that a physician has committed incompetent or unprofessional conduct. The
need to protect public in such instances overrides the individual’s expectation of
privacy (provided that the inquiry is limited and zealously protected from further
disclosure).
The court is satisfied that 22 MRSA §1711-C does not create an overarching,
presumptive psychotherapist / patient privilege which is not subject to exception The
statute, by its own terms, anticipates that there are times when such material must be
disclosed ~ including issues involving licensure. In the present matter, the subpoenaed
matters fall clearly within the scope of the exceptions anticipated by the statute. The
language of disclosure is not impermissibly vague. Nor is the Respondent’s authority to
issue process limited to the professionals it supervises.
Accordingly, the Appellant’s appeal is denied. The matter is remanded to the
Board of Osteopathic Licensure for further proceedings.
The Clerk may incorporate this Order upon the docket by reference.
Dated: March 11, 2004 am] m, he
Andrew M. Mead
JUSTICE, MAINE SUPERIOR COURT
Date Filed 7/31/03 PENOBSCOT Docket No. AP-2003-19
County
Action 80C APPEAL
ASSIGNED TO JUSTICE JEFFREY L. HJELM - RECUSED
RE-ASSIGNED TO JUSTICE ANDREW M. MEAD
JAMES MCDONALD, Ph.D Petitioner VS. BOARD OF OSTEOPATHIC LICENSURE Respondent
Plaintiff's Attorney Defendant’s Attorney
GROSS, MINSKY & MOGUL, P.A. OFFICE OF THE ATTORNEY GENERAL
23 WATER ST SUITE 400 - P O BOX 917 6 STATE HOUSE STATION
BANGOR, ME 04402-0917 AUGUSTA ME 04333-0006
BY: GEORGE C. SCHELLING, ESQ. BY: CARMEN COULOMBE, AAG
RENEE L. INMAN, ESQ.
Date of
Entry
7/31/03 James McDonald's Petition for Review of Final Agency Action Pursuant to
M.R.Civ.P. 80C and 5 M.R.S.A. §§ 11001, et seq. €Exhibit A, B, & C
attached) filed.
8/5/03 Notice of Assigned Justice filed. Pursuant to Administrative Order,
Single Justice Assignment of Civil Case, Docket No. SJC-323, the
above referenced case is specially assigned to Justice Jeffrey Hjelm.
Copy forwarded to attorneys for the Petitioner.
8/13/03 Entry of Appearance by Carmen L. Coulombe, AAG on behalf of the Maine
Board of Osteopathic Licensure.
8/22/03 Certification of Administrative Hearing Record (State's Exhibits.1 — 5
attached) filed by Respondent.
8/22/03 Notice and Briefing Schedule 80C Appeal of Final Agency Actions filed.
Copy forwarded to all attorneys of record.
9/5/03 Amendment to Certification of Administrative Hearing Record with Amended In
and Exhibit 6 attached.
9/26/03 James McDonald's Brief in Support of Petition for Review of Final Agency
Action Pursuant to 5 M.R.S.A. Sections 11001, et seq. and M.R.Civ.P 80C
filed by Petitioner.
10/23/03 Brief of the Maine Board of Osteopathic Licensure andAddendum Section A
and Section B attached’ filed.
11/6/03 Petitioner's Reply Brief filed.
11/6/03 Petitioner's Request for Hearing on Petition for Review of Final
Agency Action filed.