Petition for Writ of Certiorari — Dr. K v. State Board of Physician Quality Assurance

Supreme Court brief1994

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Court, U.S.

Buprene

pe FILED

-/ 983195 6 JUN -7 19%

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

DR. K, etal.,

Petitioner,

STATE BOARD OF PHYSICIAN

QUALITY ASSURANCE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

Petition for Writ of Certiorari

WILLIAM A. EHRMANTRAUT *

DAVID A. ROLING

WHARTON, LEVIN, EHRMANTRAUT,

KLEIN & NASH

104 West Street, P.O. Box 55!

Annapolis, MD 21404-0551

(410) 263-5900

Counsel for Petitioner

(*Counsel of Record)

Ca a eeE——EEE————E—————E——E7*IXx-_—

LS Re Re

(i)

T P T

DOES THE CONSTITUTIONAL RIGHT OF

PRIVACY QUELL THE DISCLOSURE OF

A PATIENT'S MENTAL HEALTH

RECORDS TO THE BOARD OF

PHYSICIAN QUALITY ASSURANCE

WHICH IS INVESTIGATING A PATIENT’S

PSYCHIATRIST WHEN THE PATIENT

HAS NOT AUTHORIZED THE

DISCLOSURE OR HAS NEVER MADE

ANY COMPLAINT ABOUT THE

PSYCHIATRIST?

(ii)

LIST OF PARTIES

Petitioner, designated as

Patient A for confidentiality

reasons, was once the

patient of Dr. K.

Dr. K. Not a party to this

appeal, but was a party to

the action below. Dr. K is

a psychiatrist whose

identity has been withheld

for confidentiality reasons.

Respondent, the Board of

Physician Quality

Assurance for the State of

Maryland. The Board is

seeking access to

Petitioner's records.

(iii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED (i)

LIST OF THE PARTIES (ii)

TABLE OF AUTHORITIES (v)

OPINIONS BELOW 1

STATEMENT OF JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THE

CASE 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING WRIT 8

CONCLUSION 51

APPENDICES

APPENDIX A la

Order of the Circuit Court

for Montgomery County dated

December 22, 1992

APPENDIX B 2a

Opinion of Court of Special

Appeals of Maryiand

(iv)

APPENDIX C 47a

Denial of Certiorari by the

Court of Appeals of Maryland

(v)

TABLE OF AUTHORITIES

Cases Page

rv , 542 F.2d

1064 (9th Cir. 1976)cert. denied,

420 tM Ue ER 44, 15,

Vv i j my

431 U.S. 678, 684 (1977) 10, 12, 31,

98 Md. App. 103, 632 A.2d 453

(1993), cert. denied, Mad.

- A.2d >. 3 mae i, Fe

Vv. i , 405 U.S.

438 (1972) is achedee ie ea

Ww A ist.

Vv. i, 481

F.Supp. 1028 (Hawaii 1979) ... 15,

In Re B, 482 Pa. 217, 394 A.2d

439 (2976) °°. SS OPPS E.gg ee,

» 2 Cal. 26 435.

85 Cal Rotr. 829, 467 P.2da

557 (1970) FER hay ale eae

W F

810 F.2d 67 (3rd Cir.)

cert. denied, 483 U.S.

1007 (1987) aa, aa, a4, 25, 26, aie

v ion,

74 F.R.D. 565 (E.D. N.Y. 1977)14, 15,

Loving v. Virginia, 388 U.S. 1 (1967)

(vi)

, 451 F.Supp.

1355, 1380-81 (D.N.J. 1978),

aff’d., 601 F.2d 575

(3rd Cir. 1979) (Table)

_Examiners, 509 N.W.2d 754 (Iowa 19

mee ee

390 (1923) ae ee

Qinatead—1.—United States, 277 U.S.

438, 478, (1928) ...

268 U.S. 510 (1925)

» S7S F.2d 1119,

93)

1131 (Sth Cir. 1978), cert. denied,

493 U.S. 1129 (1979)

Prince v.-Massachusetts, 321 U.S.

158 (1944) j;

&kinnex vy. Oklahoma, 316 U.S.

S35 (1942) .°. .

, 95 U.S.

App. D.C. 373, 222 F.2d 398 (1955)

, 476 U.S. 747, 772

(1986) o os te se ie Gebbs eel

. ;

, 638 F.2d 570,

577 (3rd. Cir. 1980)

27,

—_— “a a ililalaaaaiaalllldalldlldll

(vii)

Vv , 429 U.S. 589

sg ys ey peepee aa; 45, 18, 19, 20, Yo oe

Other Authorities

Guttmacher and Weinhofer,

Psychiatry and the Law, 272 (1952) 14, 38

Ruebhausen & Brim,

» 65 Colum.

L. Rev. 1184 (1965) 15

Slovenko, Psychiatry & a Second

ivi , 6 Wayne

L. Rev. 175 (1960) 14

Statement of the American Psychiatric

Association before the Subcommittee

On Government Information & Individual

Rights, (April 9, 1979) 13

No.

In The

Supreme Court of the United States

October Term, 1994

DR. K, et al.,

Petitioner,

Vv.

STATE BOARD OF PHYSICIAN

QUALITY ASSURANCE,

Respondent.

Petition for Writ of Certiorari

to the Court of Appeals of Maryland

PETITICN FOR WRIT OF CERTIORARI

Petitioner, Patient A, respectfully

requests that this Court grant this

Petition for Writ of Certiorari.

OPINION BELOW

+: a Sa Ss ea Fak

ici , 98 Md. App.

Physician Quality Assurance

103, 632 A.2d 453 (1993), cert. denied,

Md. . A.2d (1994).

STATEMENT OF JURISDICTION

On March 9, 1994, the Court of

Appeals of Maryland denied this

Petitioner’s Writ of Certiorari. The

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THE CASE

Constitution of the United States,

Amendment XIV Section 1: All persons born

or naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

Liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws. (Emphasis added.)

STATEMENT OF THE CASE

This case concerns whether a patient

has the right to keep sacrosanct mental

health records as maintained by a

psychiatrist when that psychiatrist has

been served with a subpoena duces tecum by

the Board of Physician Quality Assurance

of Maryland ("Board"). The Circuit Court

for Montgomery County, Maryland ruled

that the patient did not have such a

right.

This case had its genesis in a

subpoena duces tecum issued by the Board

to Re. K, a psychiatrist. Upon

information and belief, as well as

statements made at the oral argument on

the original motion, the Board was

investigating two complaints against Dr.

K. The complaints alleged that information

was received from Dr. K’s then-wife --

whom Dr. K was in the process of divorcing

-- that Dr. K was having a romantic

relationship with a former patient and

that Dr. K had alcohol and emotional

problems. Upon these hearsay complaints,

the Board issued the subpoena duces tecum

for the records of Patient A -- the

alleged former patient of Dr. kK.

The subpoena duces tecum requested

the mental health records of Patient A.

Upon being served with this subpoena duces

tecum, Dr. K requested authorization from

Patient A to disclose the records.

Patient A exprésely Yefased to grant that

authorization.

The Board, however, persisted in its

attempt to obtain Patient A’s records. As

a result of this persistence and Patient

A's non-authorization, Dr. K sought

guidance from the Circuit Court for

Montgomery County, Maryland on June 16,

1992. Guidance was requested via Dr. K’s

Motion for Protective Order or, in the

Alternative, to Quash Subpoena Duces

Tecum. On June 18, 1992, Judge Ruben of

the Circuit Court for Montgomery County,

Maryland granted Dr. kK’s motion and

quashed the subpoena duces tecum. Due to

the fact that the Board had not had an

opportunity to respond to Dr. K’s Motion,

the Board filed a Motion to Rescind the

June 18, 1992 Order. On July 17, 1992,

Judge Ruben granted that Motion and

likewise sealed this case.

Thereafter, the Board filed its

Opposition to Dr. K’s Motion and Dr. K

filed a response thereto. On November 19,

1992, a hearing was held on this matter

before the Circuit Court for Montgomery

County, Maryland which then took this

Matter sub curia. On November 24, 1992,

the Circuit Court denied Dr. K’s Motion.

The Circuit Court concomitantly stayed its

Order provided Dr. K or Patient A noted an

appeal to the Court of Special Appeals of

Maryland.

Upon receipt of this Order, Patient A

inquired as to whether constitutional

rights could be asserted to protect the

disclosure of the mental health records.

Patient A was alerted that Md. Health-

General Code Ann. Section 4-307(h) (4)

provided for the assertion of such rights.

Consequently, Patient A requested that

such rights be asserted.

On or about ‘December 22, 1992,

Patient A had filed with the Circuit Court

for Montgomery County, Maryland a motion

to reconsider the November 24, 1992

disclosure order. That motion asserted

Patient A’s Federal Constitutional Privacy

Right to those records and it was further

contended that the Board had presented no

"compelling interest" for the disclosure

of those records. On December 22, 1992,

the Circuit Court for Montgomery County,

Maryland denied Patient A’s_ privacy

assertion. Consequently, on December 24,

1992, Patient A and Dr. K noted an appeal

to the Court of Special Appeals from the

November 24, 1992 and December 22, 1992

Orders.

In a reported opinion, the Court of

Special Appeals of Maryland affirmed the

judgment of the Circuit Court’ for

Montgomery County, Maryland. In so

affirming, the Court of Special Appeals

held “that Patient A [had] a

constitutional right to privacy in Dr. K's

records of her psychiatric treatment". 98

Md. App. 112, 632 A.2d at 457. Further,

the Court of Special Appeals agreed with

Patient A’s representation that Dr. K’s

records "are, in fact, a mirror by which

one can gaze into the reflected mind of

the patient...Patient A’s essence of being

- the conscious and subconscious mind -

{is] ensconced within the records

sought..." 98 Md. App. at 115, 632 A.2d

at 459. While so recognizing the highly

personal and private nature of these

records so as to require strict scrutiny,

the Court of Special Appeals of Maryland

nevertheless found a compelling state

interest and quelled Patient A’s privacy

rights. On March 9, 1994, the Court of

Appeals for Maryland denied this

Petitioner’s Writ of. Certiorari:.

REASONS FOR GRANTING THIS

PETITIONER’S WRIT OF CERTIORARI

I. INTRODUCTION

This case presents the classic

example of an individual’s right versus

government. That is, the issue engendered

by this case presents the struggle of the

rights of the individual vis-a-vis the

state - an Antigonene struggle that has

its genesis in the founding of earliest of

Civilizations in and around the fertile

crescent of the Tigris and Euphrates, the

city-state polis system of ancient Greece,

the Republica of Rome, the American

Revolution, and more recently the

overthrow of Communism in favor of

individual rights. For this case, Patient

A stands in the role of Antigone herself,

with the added protection not held by

Sophocles’ Antigone; to wit: the

constitutionally protected right of

privacy. It is this most important

protection that must be exalted in this

case so as to protect Patient A’s mental

health records from disclosure.

II. CONSTITUTIONAL RIGHT OF PRIVACY AND

MENTAL HEALTH RECORDS

Although the Constitution of the

United States does not explicitly mention

any right of privacy, this Court has

recognized that one aspect of . the

"liberty" protected by the Due Process

Clause of the Fourteenth Amendment is "a

right of personal privacy, or a guarantee

of certain areas or zones of privacy".

Carey v. Population Services Intern., 431

U.S. 678, 684 (1977). It is indeed clear

beyond peradventure that "the Constitution

embodies a promise that a certain private

sphere of individual liberty will be kept

largely beyond the reech of a government."

Thornburgh _v. ___ American College _of

Obstetricians, 476 U.S. 747, 772 (1986).

As stated by Justice Brandeis in Olmstead

v._ United States, 277 U.S. 438, 478,

(1928) "the right to be let alone" is "the

right most valued by civilized man". This

Constitutional right of privacy,

therefore, extends to "the individual

interest in avoiding disclosure of

personal matters". Whalen v. Roe, 429

U.S. 589, 599 (1977).

The content of the Constitutional

right of privacy has remained largely

undefined. This Court has, however,

identified at least two strands of the

privacy right.

"The cases sometimes

characterized as protecting

‘privacy’ have in fact involved

at least two different kinds of

interest. One is the individual

interest in avoiding disclosure

of personal matters, and another

is the interest in independence

in making certain kinds of

important decisions."

Whalen v. Roe, 429 U.S. at 598-600.

The issue of compulsive disclosure of

mental health records implicates both

strands.

In Whalen v. Roe, 429 U.S. 589

(1977), this Court implicitly expressed

7” wien :

the opinion that decisions regarding

medical care fall within the realm of the

right of privacy. 429 U.S. at 598-604.

See _ also, Plante v. Gonzales, 575 F.2d

1119, 1131 (Sth Cir. 1978). An

individual’s decision whether to seek the

aid of a psychiatrist, and whether to

communicate certain personal information

to that psychiatrist, falls squarely

within the bounds of this "cluster of

Constitutionally protected choices".

Carey v. Population Services Intern., 431

U.S. at 685. In so falling within this

"cluster of constitionally protected

choices", this Court has been concerned

with protecting individuals against

governmental intrusion into matters

affecting the most fundamental personal

decisions and relationships. See, Id. at

686-692. The mental health records sought

herein squarely fall within this protected

"cluster of constitutionally protected

choices". This Petitioner explains.

No area could be more deserving of

protection than communications between a

psychiatrist and a patient. The nature of

the psychotherapeutic process is such that

disclosure to the therapist of the

patient’s most intimate emotions, fears,

and fantasies is required. Many courts

and commentators have concluded that

because of the uniquely personal nature of

mental and emotional therapy, accurate

diagnosis and effective treatment require

a patient's teral willingness to reveal

the most intimate of personal matters, a

willingness that can only exist under

conditions of the strictest

confidentiality. See, Statement of the

American Psychiatric Association before

the Subcommittee on Government Information

and Individual Rights, April 9, 1979;

Slovenko, "Psychiatry and a Second Look at

the Medical Privilege", 6 Wayne L.Rev. 175

(1960); Guttmacher and Weinhofer,

Psychiatry and the Law, 272 (1952); Caesar

v._Mountanos, 542 F.2d 1064, 1067, (9th

Cir. 1976, cert. denied, 430 U.S. 954

(1977); Lora v. Board of Education, 74

F.R.D. 565 (E.D.N.Y. 1977). The patient

in psychotherapy knows that such

revelations will be expected if the

attempted cure is to be had. In laying

bare one’s entire self, however, the

Patient rightfully expects that such

revelations will remain a matter of

confidentiality exclusively between the

patient and the therapist. Caesar v.

Mountanos, 542 F.2d 1064 (9th Cir. 1976);

in Re B, 482 Pa. 471, 394 A.2d 419 (1978) ;

in Re Lifshutz, 2 Cal. 3d 415, 85 Cal

Rptr. 829, 467 P.2d 557 (1970).

Therefore, constitutionally protected

privacy must, at a minimum, include the

freedom of an individual to choose the

circumstances under which, and to whon,

certain thoughts and feelings will be

disclosed. See, Lora v. Board of

Education, 74 F.R.D. 565, 570 (E.D. N.Y.

1977) citing, Ruebhausen & Brim, "Privacy

and Behavioral Research", 65 Colum. L.Rev.

1184 (1965). Accordingly, the right of

privacy does extend to an individual’s

liberty to make decisions regarding

psychiatric care without unjustified

governmental interference. Caesar _v.

Mountanos, 542 F.2d at 1067. See also,

cine hi — Di ay

Ariyoshi, 481 F.Supp. 1028 (Hawaii 1979);

In Re B, 482 Pa. 217, 394 A.2d 419 (1978).

The second strand of the right to

privacy is the right to confidentiality -

"the individual interest in avoiding

disclosure of personal matters". Whalen

v.Roe, 429 U.S. at 599. There is little

doubt that information contained in a

psychiatrist’s patient files will include

personal matters. As a point of fact, the

records of a psychiatrist contain the

essence of a patient’s being - the

conscious and subconscious mind. Thus,

the records of a psychiatrist are the

mirror by which one can gaze into the

reflected mind of the patient. Clearly,

then, the records of a psychiatrist

relative to a patient squarely fall within

the protection of the Federal Right of

Privacy.

III. OPINION OF COURT OF SPECIAL

APPEALS OF MARYLAND

While the Court of Special Appeals of

Maryland recognized that which is set

forth above, that Court utilized an

incorrect framework of analysis in holding

that disclosure of the mental health

records was required. It is to that

incorrect analysis and the cases to which

this Petition now turns.

The Court of Special Appeals of

Maryland attempted to analogize this

matter with three factually diverse and

discordant cases. The first, Whalen v.

Roe, 429 U.S. 589 (1977), is cited for

extending the Constitutional right of

privacy to an individual’s interest in

their medical records. The Court of

Special Appeals of Maryland cited this

case as permitting the State’s interest to

negate any exercise of an individual’s

privacy interest in their medical records.

a a ee a 2 ate Board Physician

Quality Assurance, 98 Md. App. 103, 632

A.2d 453, 458 (1993), cert. denied, Md.

; A.2d, __ (1994) (emphasis added) .

In Whalen, this Court upheld a New

York statute requiring physicians to

submit duplicate prescriptions written for

Schedule II drugs to the state in response

to a concern that these drugs were being

diverted into unlawful channels. Whalen

v. Roe, 429 U.S. at 591. The information

disclosed to the state included only the

patient’s name, age and address. This

Court concluded the statute’s impact was

insufficient to "constitute invasion of

any right or liberty protected by the

Fourteenth Amendment". Whalen v. Roe, 429

U.S. at 603-604. This Court’s holding was

premised on the non-personal nature of the

information disclosed, as well as the

pre-existing authority the State possessed

in the area of drug regulation. This

Court recognized that the use of

particular Schedule II drugs could

entirely be prohibited pursuant to the

exercise of the state’s police powers.

Whalen v. Roe, 429 U.S. at 603.

The matter sub judice, however,

involves the compelled disclosure of an

individual’s most intimate thoughts,

emotions, as well as descriptions of

conduct that may be embarrassing and

publicly damaging. Hawaii Psychiatric

Soc. Dist. Branch v. Ariyoshi, 481 F.Supp.

at 1041, (upholding an individual’s right

to privacy in psychiatric records).

Compelled disclosure of an individual’s

entire psychiatric treatment record is

eminently personal and is not limited in

scope or nature as was the disclosure

permitted by the Whalen opinion.

Furthermore, the state’s police power

cannot regulate what a patient will or

will not disclose to a psychiatrist.

Granting the state authority to compel

disclosure of an individual’s

psychotherapy records against the

patient’s consent when neither’ the

psychiatrist/patient relationship or the

individual’s mental health has been placed

in legal issue is a blatant infringement

of the Constitutional right of privacy.

In Whalen, this Court held the New

York statute did not inhibit the personal

decisions relative to treatment as the

patient to be prescribed Schedule II drugs

still had the right to decide

independently, with the advice of the

physician, to forgo the medication.

Whalen v. Roe, 429 U.S. at 603. Knowledge,

however, that unauthorized disclosure of

psychiatric records can be mandated by the

state upon the suspicion, and with no

determination of probable Cause, that the

psychiatrist has conducted himself

unethically will have a chilling effect on

all individuals in need of psychiatric

care. A patient in a Whalen situation,

can be informed that if they decide to

take a specific medication, their name,

age and address will be released to the

State. An entirely different area of

privacy concern is engendered in

permitting disclosure of an entire

psychiatric record against the consent of

a non-complaining patient. In this case,

possible disclosure will work as an

inhibition of treatment as the patient

will not be as candid while the

psychiatrist will not be as copious in

note taking as a result of the spectre of

disclosure. Hence, this case is distinct

from Whalen in that this case involves the

mental health records of a patient who has

not placed those records at issue, has not

filed a> y complaint against the treating

psychiatrist, and the state has not

demonstrated a non-hearsay rationale for

those records.

The Whalen holding did not embrace

all issues of the right of privacy. This

Court simply held that "this [Whalen]

record [did] not establish invasion of any

right or liberty protected by the

Fourteenth Amendment". See, Whalen, 429

U.S. at 606 (emphasis added). As

discussed, supra, the disclosure of

specific information, compelled by a

specific New York statute requiring only

non-invasive information is clearly

distinct from disclosure of an entire

psychiatric record of an identified

individual patient.

The Court of Special Appeals of

Maryland likewise erroneously concluded

the facts of the matter sub judice were

analogous to the matter of In Re Search

Warrant (Sealed), 810 F.2d 67 (3rd Cir.)

pee eee De 483 U.S. 1007 (1987). In Re

Search Warrant (Sealed) involved a

criminal investigation of insurance fraud.

Following a determination of probable

cause by a U. S. Magistrate, a warrant was

issued authorizing the FBI to seize

specific property as delineated by the

warrant. The information sought consisted

almost exclusively of financial/billing

information.

n R W n

concerned the alleged fraudulent billing

for specific procedures performed on

specific dates. The patients’ names, as

well as information pertaining to the

medical procedures had previously been

voluntarily submitted to insurance

companies for payment. The information

sought by the investigators of this

alleged criminal behavior was only to

verify that the procedure had been

performed. This very specific and

limited data previously had been disclosed

to insurance companies by the individual

patients. Disclosure of such procedures

to the insurance company for reimbursement

was and is a common practice of modern

medical treatment. The patients relying

on third party compensation for the cost

of their medical treatment, although

afforded a privacy interest in their

medical decisions, had voluntarily

disclosed the identical information sought

by the government.

This case is clearly distinct from in

Re Search Warrant (Sealed) in that there

has been no voluntary disclosure of

information which forms the basis of this

investigation of Dr. K. The Board is not

looking to verify specific treatment,

dates or billing information, which had

been previously and voluntarily disclosed

by Patient A. Rather, the Board seeks to

reveal the most personal and intimate

details of a confidential relationship

between a psychiatrist and a patient.

The facts of the matter sub judice

are disparate to the In Re Search Warrant

(Sealed) case. This case concerns an

administrative investigation, not

criminal, initiated by an estranged wife

and corroborated only by hearsay

testimony. There was no neutral detached

determination of probable cause, nor

warrant expressly specifying information

sought. Moreover, the records in issue

are judicially recognized as highly

sensitive and of a personal nature, unlike

the billing information sought in the

criminal investigation of In Re Search

Warrant (Sealed). Thus, there is a grave

distinction between the consequences of

disclosing billing records and the impact

and implications of disclosing records as

highly sensitive as psychotherapy records.

The In Re Search Warrant (Sealed) Court

expressly recognized this distinction by

noting that their case "did not involve

psychotherapeutic care and [the court]

need not decide whether psychiatric

records merit a higher degree of privacy

sufficient to outweigh legitimate

government interest in acquiring the

information contained therein." See, In

Re_ Search Warrant (Sealed), 810 F.2d at

72; 2S: Hence, the Third Circuit

recognized the indisputable distinctions

between billing information and

pyschotheraputic records. Yet the Court

of Special Appeals of Maryland seeking to

justify its holding requiring the

disclosure of Patient A's records

completely ignored the Third Circuit’s

statement concerning the distinction

between billing records and

psychotherapeutic records. By relying on

the In Re Search Warrant (Sealed) holding,

the opinion of the Court of Special

Appeals of Maryland is indeed flawed by

the language of the case it purportedly

utilized as support.

In attempting to provide a further

rationale for its holding, the Court of

Special Appeals of Maryland relied on a

third factually dissimilar case. That

case, also from the Third Circuit and not

dealing with psychotherapeutic records,

was United States v. Westinghouse Elec.

Corp... 638 F.2d 570, 577 (3rd. Cir. 1980).

Because the’ Westinghouse case was decided

before the In Re Search Warrant (Sealed)

case and the In Re Search Warrant (Sealed)

case expressly did not deal with

psychotherapeutic records, the

Westinghouse case is likewise inapposite

sub _judice. This is so because the

Westinghouse case does not deal with the

issue of the higher degree of privacy to

be accorded to mental health records than

that to be accorded to physician billing

records.

The cases cited by the Court of

Special Appeals of Maryland and utilized

as support for its opinion are factually

distinct from the issue engendered by this

petition. Those cases validate disclosure

of medical billing information previously

and voluntarily disclosed by the patient

to a third party; and the results of

routine medical procedures. Furthermore,

the investigation of insurance fraud in In

Re Search Warrant (Sealed) was a criminal

investigation, the seizure of the medical

records premised on a search warrant

issued after a determination of probable

cause which is clearly distinct from the

matter sub judice. While it is true that

the state does have an interest in

protecting future patients from = an

unethical, unscrupulous physician or

psychiatrist, the state’s interest in

protecting the public must be carefully

weighed against the fundamental right of

privacy of the individual in non-

authorized disclosure of personal

information and their autonomy with regard

to psychotherapeutic care.

In sum, the Court of Special Appeals

of Maryland, attempted to adopt the

holding of the above cited cases

compelling disclosure of "medical records"

to the state without providing any

analysis demonstrative of similarities

between the facts of those cases and this

matter. The cases relied on by the Court

of Special Appeals of Maryland explicitly

addressed the heightened interest in the

highly personal psychotherapy records and

the likelihood the individual’s privacy

interest in those records would prevail

Over the interest of the state. The Court

of Special Appeals of Maryland elected to

disregard those portions of the cases and

offered no analytical guidance or

reasoning as to its determination that

the state’s interest herein compelled the

desecration of the fundamental

constitutionally protected right of

privacy.

IV. STANDARD FOR REVIEW AND PUBLIC

IMPORTANCE

Having now demonstrated that the

right of privacy does indeed attach to the

mental health records of Patient A and the

incorrect analysis of the Court of Special

Appeals of Maryland, this Petitioner shall

now discuss the appropriate standard for

review and the public importance of this

issue.

That the right of privacy does indeed

extend to decisions regarding psychiatric

care does not automatically render void

any and all regulations. Rather,

psychiatric care may be regulated in ways

that do not infringe protected individual

choices, and even a burdensome regulation

may be validated by a compelling state

interest. v. ti Services

Intern., 431 U.S. at 685-586.

"‘Compelling’ is of course the

key word; where a decision as

fundemental as whether to bear

or beget a child is involved,

regulations imposing a burden on

it may be justified only by

compelling state interests, and

must ‘be narrowly drawn to

express only those interests".

Id. at 686.

In the case sub judice, therefore,

the standard of inquiry must be that

because the disclosure of Patient A’s

mental health records burdens the

individual’s liberty to make decisions

regarding psychiatric care, then Maryland

must have demonstrated that the disclosure

represents the least restrictive means to

achieve a compelling state interest, if

any.

This Petitioner posits that the

threat of disclosure and actual disclosure

of personal information revealed to a

psychotherapist in the course of treatment

adversely affects the freedom of

individuals to choose and to receive

adequate psychiatric care. This, of

course, affects the public-at-large. That

is, the repercussion of the Court of

Special Appeals of Maryland opinion is to

jeopardize the care and treatment of those

seeking psychotherapeutical assistance.

This Petitioner explains.

The disclosure of the mental health

records herein, if permitted to stand,

will have a chilling effect on all

treatment between patients and

psychotherapists. Namely, the disclosure

of Patient A’s records will inhibit candid

communications between the patient and the

psychiatrist. This inhibition will be

further enhanced by the psychiatrist’s

fear that the notes and diagnoses can be

reviewed by the state officials, revealing

to those state officials highly personal

and sensitive concerns of the patient.

This chilling effect has been

considered by various courts. These

ur hav t

disclosure of communications between an

i > n . * ; * ° is

Ww r_indivi care

and _impai j !

e ae , 542 F.2d 1064 (9th

Cir. 1976); Lora v. Board of Education, 74

F.R.D. 565 (E.D. N.Y. 1977); Hawaii

Ariyoshi, 481 F.Supp. 1028 (D. Hawaii

1979). See also, In Re B, 482 Pa. 217,

394 A.2d 419 (1978). As these decisions

conflict with the opinion of the Court of

Special Appeals of Maryland on this most

important issue, this alone is sufficient

to grant this petition pursuant to Supreme

Court Rule 10.1(b).

The Court of Special Appeals of

Maryland did not address this most

important issue. Rather, the Court of

Special Appeals of Maryland was drawn to

the fact that if the records of Patient A

were not disclosed, then no investigation

could be completed by the Board. (While

this Petitioner disagrees with this

statement for the reasons set forth infra,

this argument ignores the strong

presumption in favor of the constitutional

right of privacy.)

If this Petitioner were to assume

arguendo that the non-disclosure of the

records could halt the Board’s

investigation of Dr. K, this Petitioner

notes that such a result is not surprising

within the realm of constitutional law.

For example, the Exclusionary Rule of the

Fourth Amendment of the United States

Constitution works to exclude evidence

obtained in contravention to the Fourth

Amendment. The question of whether to

exclude evidence under the Fourth

Amendment does not concern itself with

whether the exclusion will work to halt

any possible criminal conviction. To the

contrary, che question is whether the

evidence was obtained in contravention to

the Fourth Amendment, thereby warranting

its exclusion so as to further the

interests and policies imbued in the

Fourth Amendment. Should the exclusion

result in a dismissal of criminal charges,

so be it as that is the price to be paid

for our Bill of Rights.

In the case sub judice, the same

analogy of the exclusionary rule needs to

be applied. That is, if the fundamental

Yight of privacy is datmnit 2 be at play,

then whether the affirmance of that right

will harm a state investigation should

have no bearing on whether the privacy

right should be affirmed. Rather, the

question should, and must, center and

focus on whether a compelling state

interest is present to quash the privacy

right. If no compelling interest is had,

then the privacy right must be upheld

notwithstanding whether the maintenance of

that right will halt a state

investigation. If that be the case, then,

again, that is the price we pay for our

Bill of Rights and the individual

liberties found therein.

Concomitant with this constitutional

exclusion is case law. The case of Taylor

v. United States, 95 U.S. App. D.C. 373,

222 F.2d 398 (1955) is an outstanding

example. In that case, the defendant was

convicted of robbery, housebreaking, and

grand larceny. At the trial, defendant

took the position that he was not of sound

mind to stand trial. During the course of

the defendant’s trial, the Distris:t Court

permitted the testimony of defendant’s

treating psychiatrist, notwithstanding a

privilege thereto. That privileged

testimony established that defendant was

of sound mind and that he was "going along

with a gag" that he was not mentally sound

to stand trial.

On appeal, the United States Court of

Appeals for the District of Columbia

reversed defendant’s conviction. That

reversal was based upon the testimony

admitted by defendant's treating

psychiatrist. In reversing, the Court

stated:

"The psychiatric patient

confides more utterly than

anyone else in the world. He

exposes to the therapist not

only what his words directly

express; he lays bare his entire

self, his dreams, his fantasies,

his sins, and his shame. Most

patients who undergo

psychotherapy know that this is

what will be expected of them,

and that they cannot get help

except on that condition... It

would be too much to expect them

to do so if they knew that all

they said - and all that they

psychiatrist learns from what

they say - may be revealed to

the whole world..."

222 F.2d at 401 (citing Guttmacher and

Weihofen, Psychiatry and The Law, p.272

(1952)). Hence, upon the principle behind

the need for confidentiality to not

inhibit treatment, the Court reversed a

criminal conviction. Therefore, based

upon the above recitation of

constitutional law as well as case law,

the Court of Special Appeals of Maryland’s

the

concern about a quelled investigation

absent Patient A’s records does not

support the Court’s rationale to order

disclosure of Patient A’s records.

The crux of the Court of Special

Appeals of Maryland opinion requiring

disclosure and hence its "compelling

interest" concerned the need for

investigation of Dr. K. That is, in its

opinion, the Court of Special Appeals of

Maryland held that Petitioner’s right of

privacy had to surrender to the public

good as the Board was investigating Dr. K.

This statement, however, requires further

review.

To begin, Petitioner was once a

patient of Dr. K. That doctor-patient

relationship concluded. - Sometime

thereafter, Petitioner and Dr. K met and

began to date. (As a point of fact,

Petitioner and Dr. K are married today.)

As a result of this, complaints were made

to the state that perhaps Dr. K was

running afoul of the American Medical

Association’s Principles of Medical

Ethics, Section 2. Therein, it is stated:

A physician shall deal honestly

with patients and colleagues,

and strive to expose those

physicians deficient in

character or competence, or who

engage in fraud or deception.

The pertinent annotation to that section

provides:

Sexual activity with a patient

is unethical. Sexual

involvement with one’s former

patients generally exploits

emotions deriving from treatment

and therefore almost always is

unethical.

With regard to the state’s investigation

of Dr. K, the annotation is the area where

the state has its concern; that is, Dr.

K’s relationship with a former patient.

For this investigation, the state asserts

that it requires access to Petitioner's

mental health records. In response,

Petitioner questions the relevance of her

records to the investigation. The answer,

submits Petitioner, to this question is

none. Rather, what is contained in the

Petitioner’s records has absolutely

nothing to do with the charge that Dr. K

has allegedly violated the Principles of

Medical Ethics. In sum, therefore, for

the state to proceed against Dr. K, the

State does not require an invasion of

Petitioner’s privacy by virtue of the

review of Petitioner’s records. Rather,

the state need only assure itself that Dr.

K has indeed violated the Principles of

Medical Ethics as set forth above. That

can be accomplished by a less invasive

method as suggested by the Supreme Court

of Iowa in McMaster v. Jowa Board of

Psychology Examiners, 509 N.W.2d 754 (Iowa

1993).

In that case, the Iowa Board was

investigating a psychiatrist. The Board

subpoenaed the records of ae second

psychiatrist treating a patient whom had

married the psychiatrist under

investigation. (This is the exact same

factual situation herein.) Therein, the

Court held that the patient’s records were

protected by the constitutional right of

privacy and the state was required to show

that its need for the records outweighed

the patient’s right to privacy. Because,

however, the Court was not satisfied with

the record as created by the trial court,

it remanded the case for a further record

determination.

Upon the remand, the Court concluded

that the patient needed to be involved in

the procedure. That is, the Iowa Board

must directly notify the patient of its

attempt to obtain the records. If the

patient, such as Patient A, objects, then

perhaps a less intrusive means could be

constructed to avoid the constitutional

problem engendered.

For example, in this case the Board

is interested - pursuant to its citation

at Section 2 of the American Medical

Association’s Principles of Medical Ethics

- with sexual activity with a patient.

Patient A could be placed under oath and

asked whether during treatment sexual

activity took place. In utilizing this

procedure, the records are protected and

the state will receive the investigatory

information it allegedly requires.

The phrase "allegedly requires" has

been utilized because the Board herein is

not investigating Dr. K for anything done

during his treatment of Patient A.

Rather, the gravamen of the investigation

concerns:

"sexual involvement with one’s

former patients {as it]

generally exploits emotions

deriving from treatment and

therefore almost always is

unethical".

Annotation to American Medical

Association's Principles of Medical

Ethics, Section 2. This is the gravamen

of the Board’s investigation because it

was after Dr. K began to date Patient A

following his treatment termination of

Patient A that the complaints to the Board

were filed. In sum, therefore, Dr. K’s

treatment itself has nothing to do with

the area of the Board’s investigation.

When one further considers that

Patient A and Dr. K have now married, any

worry - as expressed in the Annotation -

concerning exploiting emotions falls to

the wayside. Rather, brought to the

forefront is that the State of Maryland is

now contemplating a disciplinary action

against Dr. K for marrying a former

patient. A Constitutional concern of

privacy that is likewise implicated

herein. See e.g., Carey v. Population

Services Intern., 431 U.S. 678 (1977);

Eisenstad!. v. Baird, 405 U.S. 438 (1972);

vine wv. Vivreindes, 306... U:8« i AR96T);

Prin ‘. a » 224 U.ds: 72468

(1944); Sk} y +. Os ma, 316 U.8...335

(1942); Pier Vv. rs, 268

U.S. 510 (1925); Meyer v. Nebraska, 262

U.S. 390 (1923) (wherein this Court has

recognized an individual’s right to make

decisions free from unjustified

governmental interference on matters

relating to marriage). Therefore,

Maryland can continue its investigation

of Dr. K without a review of Patient A’s

records. Hence, not only has Maryland not

demonstrated a compelling reason for

disclosure, it has not explored other less

invasive options in gathering information

prior to attempting to invade the highly

confidential and personal mental heaith

records of Patient A.

In its opinion, the Court of Special

Appeals of Maryland attempted to provide

Patient A with solace in that the Board

officials are charged by law to keep the

mental health records confidential. This

solace is a paper tiger when examined.

This Petitioner asserts that the compelled

disclosure to and maintenance by the State

of Maryland of the personal information

revealed by a patient to a psychiatrist is

itself an impermissible intrusion into the

individual’s right of privacy,

irrespective of whether the information is

disclosed to the public. While this

Petitioner is aware of this Court’s

approval of disclosure of information in

the Whalen case, here the degree and

character of the disclosure is far more

intrusive. A pscyhiatrist’s records can

include the patient’s most intimate

thoughts and emotions, as well as

descriptions of conduct that could be

embarassing or illegal. The possibility

that these records could be disclosed to

anyone, whether it be state officials or

the public, is sufficient to constitute an

intrusion into the right of privacy. See,

McKenna v. Fargo, 451 F.Supp. 1355, 1380-

81 (D.N.J. 1978), a£ff°d., 601 F.2d $75

(3rd Cir. 1979) (Table). Thus, even if

the state officials do maintain the

records in strict confidence, the fact

that these faceless bureaucrats are

reviewing these records constitutes the

invasion of privacy to which Patient A

seeks to halt with this petition.

In sum, as noted supra, the Board

does not require Patient A’s records for

its investigation of Dr. K. Further, the

lack of that record review will not quell

any state investigation. This is because

Maryland does not need nor. require

Petitioner’s mental health records to

proceed with the investigation of Dr. kK.

This is so because the Board is

investigating whether Dr. K had had sexual

relations with a former patient. A review

of Petitioner’s records will not further

that investigation, as Dr. K was not

treating Patient A when the _ alleged

unethical activity took place. Thus, the

lack of a review of Petitioner’s records

will mot hamper that investigation.

Therefore, the state has no need for

Petitioner's records and thus no

compelling interest is presented

sufficient to quash Petitioner’s

fundamental right of privacy in those

records.

The final point to be presented

concerns why Petitioner is so adamant in

her refusal to release her records. The

Court of Special Appeals of Maryland

noted, if the records are to be disclosed

to the state, they will be kept

confidential. Petitioner’s response

thereto is that she saw Dr. K and told him

her innermost feelings and secrets

concerning herself. In sum, she bore her

"Soul" to Dr. K. Now - at no fault to her

- some faceless bureaucrats wish to invade

that privacy. Petitioner’s damage will

occur when: and if such a disclosure is

had, even if the state does maintain its

confidentiality over the records.

Therefore, once the records are released,

Petitioner’s damage will be manifested and

her right of privacy will be invaded due

to no fault of her own. This invasion of

privacy will then have the aftershock of

causing harm to the whole realm of

psychotherapy as patients will be

inhibited from being fully candid, while

physicians will take less copious records

for fear of a required records disclosure.

Therefore, the public-at-large will be

damaged by the state’s Pyrrhic victory in

its stated desire to protect the public.

Accordingly, Petitioner respectfully

requests that this Court review the

Opinion of the Court of Special Appeals of

Maryland on this most important issue.

CONCLUSION

Petitioner respectfully requests that

this Honorable Court grant her petition

for writ of certiorari on this fundamental

issue of extreme public policy.

Respectfully submitted,

WHARTON, LEVIN, EHRMANTRAUT,

KLEIN & NASH

Vpham .BunesDotT

William A. Ehrmantraut

David A. Roling © J

104 West Street

P.O. Box SSi

Annapolis, MD 21404-0551

(410) 263-5900

Counsel for Petitioner

APPENDICES

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

DR. Ke

Plaintiff

Vv. : Miscellaneous

Petition No. 8620

STATE BOARD OF :

PHYSICIAN QUALITY UNDER SEAL

ASSURANCE

Defendant

ORDER

Upon consideration of Patient A’s

Motion for Reconsideration, and any

opposition thereto, it is this day

of 5 hue

ORDERED,

(A) That a protective order be and

hereby is ENTERED stating that the mental

health records of Patient A are not to be

disclosed; or :

(B) That the subpoena duces tecum

issued by the Defendant be and hereby is

QUASHED.

Irma S. Raker, Judge

of the Circuit Court

For Montgomery County

12/22/92

Motion for Reconsideration

DENIED, Irma Raker

APPENDIX B

COURT OF SPECIAL APPEALS OF MARYLAND

No. 138, Sept. Term, 1993

Vv.

STATE BOARD OF PHYSICIAN

QUALITY ASSURANCE

Nov. 2, 1993

This is an appeal from an order of

the Circuit Court for Montgomery County

denying a Motion to Quash Subpoena or in

the Alternative for a Protective Order,

and a denial of a Motion for

Reconsideration. The State Board of

Physician Quality Assurance (the Board),

appellee, received two formal written

complaints that Dr. K (a psychiatrist

licensed to practice in Maryland) and his

former patient ("patient A"),* both

appellants here, were having a romantic

relationship, and that Dr. K was

depressed and abusing alcohol.

The Board, pursuant to its

legislative authority, initiated an

investigation and subpoenaed Dr. K’s

records relating to Patient A’s

treatment. Dr. K filed a motion in the

circuit court to quash the subpoena.

That motion was granted. The Board

thereafter moved to rescind the order and

for a hearing on the motion’s merits.

The request for a hearing was granted.

The Board filed an opposition to Dr. K’s

motion to quash and its own motion to

compel compliance with the subpoena.

*The record in this case is sealed to

protect the parties identities. We shall

refer to the parties as they have been

designated in the circuit court and in the

briefs.

Dr. K opposed that motion and the Board

responded.

A hearing was held, after which the

court denied the motion to quash the

subpoena, but stayed enforcement for

thirty days pending a possible appeal.

Patient A then entered the case, filing

a Motion for Reconsideration, raising

the constitutional issue of her right to

privacy and requesting an order further

staying the final judgment’s effect.

Both motions were denied. This

appeal followed.* Appellants raise only

*The only matter litigated in the case

was the issuance or non-issuance of the

subpoena.

In Baltimore City Dept. of Social

Services v. Stein, 328 Md. 1, 16 (1992),

the Court noted an area where the

collateral order doctrine has been applied:

We have declined to follow the

Alexander rule [a finding of contempt

before appeal permitted] at least

when, in the procedural posture of the

case, the only matter before the trial

court is the discovery order, i.e.,

the motion to quash.

one question on appeal:

Does a patient’s constitutional

right to privacy bar the disclosure

of mental health records to the

Board of Physician Quality Assurance

when the patient asserts such a

right upon patient’s physician being

subpoenaed to produce those records

to the Board of Physician Quality

Assurance?

It does not, and we shall affirm.

Appellants’ question addresses only

The Court went on to note its holding in

Unnam t Vv. Levance

Commission, 303 Md. 473, 480 (1985).

It has consistently been held in

this State that where a court

proceeding is commenced to quash or to

enforce an administrative subpoena,

summons, [or] search warrant...issued

by an administrative agency or

official, -and where the court’s

order terminates the court proceeding,

the order is final and appealable.

The fact that the administrative

proceedings may not be terminated does

not render the court order

interlocutory if nothing remains to be

done in the trial court.

See _ also, In Re Search Warrant (Sealed),

810 F.2d 67, infra.

patient A’s right to privacy under the

United States Constitution. The Board

preliminarily argues that, because the

constitutional issue was first raised in

a Motion for Reconsideration which was

summarily denied by the trial court, it

is not properly before this Court. It

cites

Dintaman Vv. Board of County

Commissioners, 17 Md. App. 345, 350-51

(1973), for the proposition that "nothing

is better settled than the rule that a

question as to the constitutionality of

a statute will not be considered on

appeal when not properly raised and

decided by the lower court." Dintaman

Supports the proposition, but deciding

this appeal on jurisdictional grounds

would likely result in additional

litigation and appeals. We shall address

the issue, because it was

in fact raised below and because we may

decide an issue if it will "avoid the

‘expense and delay of another appeal."

Maryland Rule 8-131(a).

Appellants also argue in their

brief, as Dr. K argued below, that the

Statutes in question do not give the

Board jurisdiction to regulate Dr. K’s

behavior or to subpoena patient A’s

records.

Although not clearly raised in the

question presented on appeal, we shall

address these issues in the interest of

judicial economy. Maryland Rule

8-131(a).

Facts

The complaints to the Board resulted

from a visit to the complainants, both of

whom are physicians and colleagues of Dr.

K, by Dr. K’s estranged wife. She

alleged that Dr. K was having a romantic

relationship with a former patient and

that he was depressed and drinking

heavily. The complainants then visited

Dr. K personally and discussed his wife’s

charges. After listening to Dr. K’s

explanation of the events, which included

an admission by the doctor that he was

then maintaining a romantic relationship

with Patient A, they informed him that

they would be filing a complaint with the

Board because they felt that’ his

relationship with a former. patient

violated professional ethical standards

for a psychiatrist.

The Board is a State regulatory

agency that is legislatively empowered to

license physicians in Maryland and to

regulate the licensees. A weekly review

panel meets to consider complaints and

determine which complaints merit

investigation. After reviewing the

complaints against Dr. K, the panel

determined that an investigation was

appropriate. The Board then issued a

subpoena duces tecum, pursuant to its

Statutory authority, for all of the

records in Dr. K’s custody and control

concerning his treatment of Patient A.

Dr. K informed Patient A of the request

and asked if she wished to give her

permission to release the records.

Patient A refused. Dr. K then responded

to the complaints in a letter to the

Board, but refused to provide the

subpoenaed records.

According to the record, Dr. K has

yet to be charged with any improper or

illegal conduct. He is merely the

subject of an administrative

investigation.

The Board’s Authority Over

Dr. K’s Actions

10a

Initially, . appellants offer two

arguments as to why the Board has no

authority to investigate this matter.

They first argue that because Dr. K and

Patient A’s personal relationship began

after the doctor-patient relationship

terminated it is beyond the scope of the

doctor-patient relationship and thus the

Board’s authority "to ‘protect’ Patient

A" is suspect. In support, appellants

cite McDonnell v. Commission

Discipline, 301 Md 426 (1984).

In McDonnell, the question was

"whether a physician’s attempt to

intimidate adverse witnesses scheduled to

testify against him at a medical

malpractice trial constitutes ’ [i] mmoral

conduct of a physician in his practice as

a physician’ in violation of [the]

Maryland Code..." Id. at 428. The

commission found as a matter of law that

lla

Dr. McDonnell had violated the Code

provision by having two medical experts

contact the doctors scheduled to testify

against him at trial in order to

intimidate the doctors. Id. at 431. The

Court of Appeals disagreed, holding that

the conduct did not fall under the

Statute as it then appeared. The

Statute’s plain language restricted

disciplinary action to "[i]mmoral conduct

of a physician in his practice as a

physician." Id. at 435 (citing Md. Code

Ann. Art. 43 § 130(h)(8) (1957, 1980

Repl. Vol.)).

The legislature has since amended

the relevant statutory language,

enlarging the Board’s area of authority.

That provision was recodified in 1981 Md.

Laws, ch. 8, as Md. Health Occ. Code Ann.

§ 14-504. The language in what is now

Health Occupations article, section

12a

14-404(3), was amended in 1988 Md. Laws,

ch. 10g, to read: "(3) Is guilty of

immoral or unprofessional conduct in the

practice of medicine...." (Emphasis

added.) Further, the Board has the power

to initiate investigations upon receipt

of a signed, written complaint, Md. Code

(1991 Repl. Vol. & 1993 Cum. Supp.), §

14-205(a) (2) of the Health Occ. Article

(Health Occ.) and powers that aid in

conducting investigations, id. at §

14-401 et seg.

Both parties in their briefs

cite the American Medical Association,

The Principles of Medical Ethics, section

2, annotation 1, as a probable basis for

the Board’s belief that Dr. K’s behavior

may be unprofessional. Suspected

unprofessional conduct in his practice

would give the Board statutory authority

to investigate. The Principle of Medical

I sean rrear atari i

13a

Ethics, section 2 states:

SECTION 2

A physician shall deal

honestly with patients and

colleagues, and strive to expose

those physicians deficient in

character or competence, or who

engage in fraud or deception.

Annotation 1 states, in full:

1. The requirement that the

physician conduct himself/herself

with propriety in his/her

profession and in all the actions of

his/her life is especially

important in the case of the

psychiatrist because the patient

tends to model his/her behavior

after that of his/her therapist by

identification. Further, the

necessary intensity of the

therapeutic relationship may tend to

activate sexual and other needs and

fantasies on the part of both

patient and therapist, while

weakening the objectivity necessary

for control. Sexual activity with

a patient is unethical. Sexual

involvement with one’s former

patients generally exploits emotions

deriving from treatment and

therefore almost always is

unethical.

It is premature for us to decide

whether Dr. K's records indicate

14a

unprofessional conduct in his practice or

a violation of the statute, and thus

whether the Board has disciplinary

jurisdiction, or whether patient A’s

records are relevant to the ultimate

issue the Board might have to address.

That is the reason for the investigation.

Dr. K’s admission that he is having a

"romantic relationship" with Patient A,

coupled with the statutory language and

the statement of ethics is certainly a

basis upon which to begin an

investigation. An investigation is not

a scatacoty violation or disciplinary

action; it is used to determine if one

has occurred and the other is necessary.

We cannot say that the statute does not

give the Board the authority to begin an

investigation in this case.

Second, appellants argue that

Patient A’‘s records should not be

15a

disclosed because she has not complained

about Dr. K’s behavior.

If a pactient’s complaint were

necessary for the Board to investigate,

there would never be full investigations

in cases where the doctor was able to

persuade the patient not to complain.

The argument has no merit.

We also consider the Board’s direct

Statutory authority to view the records.

Maryland Code (1990 Repl. Vol., 1993 Cum.

Supp.) § 4-307 of the Health-Gene.al

Article (Health-Gen.) gives the Board

the right to examine Patient A’s records,

and reads, in pertinent part:

CM). 6:6 ee A health care

provider shall disclose a medical

record without the authorization of

a person in interest:

(vi) 1. In accordance with a

subpoena for medical records on

16a

specific recipients: ’

A. To health professional

licensing and disciplinary boards‘

for the sole purpose of an

investigation regarding licensure,

certification, or discipline of

a health professional or the

improper practice of a health

profession ....

Further, S 4-307(h) (4) reads:

This subsection may not

preclude a health care provider, a

recipient, or a person in interest

from asserting in a motion to quash

or a motion for a protective order

any constitutional right or other

legal authority in opposition to

disclosure.

A constitutional right to privacy,

as we have said, was asserted. We now

address that issue.

*The Board has the authority to issue

subpoenas pursuant to Health Occ. §§ 14-

and 14-401(f£).

‘The Board is both a licensing and

Gisciplinary board. See Health Occ. §§

and 14-301.

17a

Privacy Right of Patient A in her

Medical Records Under the

United States Constitution

"It is, of course, no longer open to

question that the right of privacy is

protected by the federal constitution and

that where the right is applicable,

regulation limiting it must be justified

by a ‘compelling state interest.’"

Montgomery County v. Walsh, 274 M3. 502,

S12 (1975), appeal dismissed, 424 U.S.

901 (1976). See also, Neville v. State,

290 Md. 364, 372-73 (1981); Doe v.

mm Ww oli t., 273 Md.

262, 272 (1974). "And as courts have

held, medical records are Clearly within

this constitutionally protected sphere."

in_Re Search Warrant (Sealed), 810 F.2d

67, 71, cert. denied, 483 U.S. 1007 (3rd

Cir. 1987). See also, Whalen v. Roe, 429

U.S. 589, 598 (1977); United States v.

18a

Westinghouse Elec. Corp., 638 F.2d 570,

577 (3rd Cir. 1980); Hodge v. Carroll

County Dept. of Social Services, 812 F.

Supp. 593, 600 (D. Md. 1992); Shoemaker

v. Handel, 619 F. Supp. 1089, 1105-06

(D.C.N.J. 1985).

We believe that Patient A has a

constitutional right to privacy in Dr.

K’s records of her psychiatric treatment.

Whalen, 429 U.S. 589, is often cited for

extending a constitutional privacy right

to the disclosure of highly personal

information. Whalen involved a New York

State statute that required doctors to

submit duplicates to the State of all

prescriptions written for schedule II

drugs. The State recorded the

information on computers and stored the

copies, using the records to help reveal

abuses in prescribing certain drugs. The

law was challenged as unconstitutional on

Yk Daal PST Ally So RE ee A.

SS aia eee

19a

its face by a group of doctors and

patients. Id. at 591-95. After

considering the State’s physical security

precautions in protecting the data, and

legislative prohibition against public

disclosure, the Court concluded:

Nevertheless, 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. 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.

Id. at 602 (footnote omitted). The Court

further held that the New York statute's

impact is insufficient "to constitute an

invasion of any right or _ liberty

protected by the Fourteenth Amendment."

Id. at 603-04 (footnote omitted). So

while the right was recognized in Whalen,

20a

the State’s interest negated any exercise

of that right.

iIn_ R earch W t » B20

F.2d 67, was decided upon facts analogous

to the instant case. In Search Warrant,

a physician was under investigation by

the Federal Bureau of Investigation for

insurance fraud. The FBI believed that

certain patient records were relevant to

its investigation. A United States

Magistrate found probable cause and

issued a warrant authorizing a search of

the physician’s office and the

seizure of certain specified records.

Id. at 69. The day of the seizure, the

physician filed a "Motion to Enjoin or,

in the Alternative, for Relief From,

Execution of Search Warrant" in federal

district court. Id. The district court

denied the motion, but ordered the record

sealed and

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2la

the information treated as confidential.

The physician then requested a stay of

the order. That request was denied also.

ia.

Throughout the proceedings’ the

physician was not under indictment, he

was only being investigated. The Third

Circuit allowed the unusual. appeal

because:

any privacy interests the patients

may have are immediately threatened

by the government having obtained

such highly sensitive personal

information as may be contained

in their medical files....

[A]ppellate review should not be

postponed - and perhaps entirely

foreclosed - by a rule which would

make such review available only if

and when the physician is indicted,

prosecuted, or convicted.

Id. ae 70.

The Court, after balancing the

recognized privacy right against the

state’s interest, held that the

"significant government interests in

22a

investigation clearly outweigh any

individual privacy interests ...." Id.

at -72. It considered, among other

things, that:

the identities of the patients

involved are already known ... and

their privacy interests are thereby

diminished. Additionally, two

separate mechanisms exist to guard

against unauthorized disclosure.

Initially, ...the district court’s

special directions operate to

Maintain the confidentiality of

these records. Thereafter,

presentation to a grand jury will

not lead to untoward dissemination.

Id. at 72-73 (citation omitted). There

was also a statute expressly authorizing

an administrative subpoena of medical

files and a demonstrated need for

government access to the records.

We agree with the Third Circuit’s

reasoning as applied to the case at bar.

Patient A has a right to privacy in her

medical records. That right, however, is

not absolute; "[t])he individual privacy

23a

interest in the patients’ medical records

must be balanced against the legitimate

interests of the state in securing the

information contained therein." Id. at

71-72. See_also, New York State

Ophthalmological Soc. v. Bowen, 854 F.2d

1379, 1389 (D.C. Cir. 1988), cert.

denied, 490 U.S: 1098 (1989) ;

Westinghouse, 638 F.2d at 578; Hodge, 812

F. Supp. at 600; Doe v. Borough of

Barrington, 729 F. Supp. 376, 382-83 (D.

N.J. 1990); v. rvices

Admin., 544 F. Supp. 530, 546 (D. Md.

1982); Walsh, 274 Md. at 512-14.

Westinghouse, 638 F.2d 570, provides

an analytical framework for balancing the

competing rights and interests. There,

the issue was whether certain employee

health records could be turned over to

the

National Institute for Occupational

24a

Safety and Health without the employees’

authorization. Id. at 572-73. The

court stated, "Generally, the reporting

requirements which have been upheld have

been those in which the government has

advanced a need to acquire the

information to develop treatment programs

or control threats to public health."

id. a> S76. In those cases where a

court has allowed an intrusion into the

privacy right in medical records "it has

usually done so only after finding that

the societal interest in disclosure

outweighs the privacy interest on the

specific facts of the case." Id. After

deciding that the employees had privacy

rights in their medical records, the

court specified several factors to

consider in the "delicate task" of

weighing the government’s competing

interest. Id. Those factors are: the

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25a

type of record requested, the information

it contains, the potential for harm in

subsequent nonconsensual disclosure,

the injury in disclosure to the

relationship for which the record was

generated, the adequacy of safeguards to

prevent unauthorized disclosure, the

government’s need for access, and

whether there is an express statutory

mandate, articulate public policy, or

other public interest militating towards

access. Id. See also Search Warrant, 810

F.2d at 72; Borough of Barrington, 729 F.

Supp. 376; Shoemaker, 619 F.Supp. at

1106; United States v. Colletta, 602 F.

Supp. 1322, 1327, aff'd., 770 F.2d 1076

(1985) (all applying the Westinghouse

factors in weighing individual privacy

rights against the government's

legitimate interests). We shall apply

these factors to the facts in the instant

atte

26a

case.

27a

Type of Record and

Information Contained Therein

The subpoena in this case directed

Dr. K to deliver "any and all medical

records" oof Patient A. Dr. K was

Patient A’s psychiatrist. Appellants

represent that che records in question

"are, in fact, a mirror by which one can

gaze into the reflected mind of the

patient.... Patient’s essence of being

- the conscious and subconscious mind -

[is] ensconced within the records sought

»% We do not dispute that

representation. We presume that the

records contain at least Dr. K’s notes

from his sessions with Patient A and any

medical information, such as a physical

and mental health history and a record of

prescribed medication.

We understand the intensely personal

and extremely delicate nature of the

28a

information contained in the records.

There is a clear difference between these

records and the prescription copies at

issue in Whalen, which were not

"meaningfully distinguishable from a host

of other unpleasant invasions of privacy

that are associated with many facets of

health care." Whalen, 429 U.S. at 602.

The Potential for Harm in

Subsequent Nonconsensual Disclosure

Accounting for the personal and

sensitive nature of psychiatric records,

the potential for harm in subsequent

disclosure is plainly apparent. Despite

great advances in public consciousness,

psychiatric treatment can still carry a

stigma in our society. The consequences

of nonconsensual public disclosure of

psychiatric records might well be harmful

to Patient A.

29a

The Injury in Disclosure to

the Relationship for Which

The Record was Generated

The disclosure in this case is

pursuant to Healtn-Gen. § 4-

307(h) (1) (vi)1.A. and Health Occ. §§

14-401(a) and (£). Under those sections

the Board is entitled to subpoena and

review Patient A’s records without her

consent solely to investigate charges

against Dr. K. The psychiatrist-patient

relationship is a very personal one,

any disclosure could conceivably

affect the relationship. 13 ee

difficult to predict what impact the

disclosure of Dr. K’s records would have

on any professional relationship with

Patient A. We note, however, that Dr.

K. and Patient A maintain that their

patient-psychiatrist relationship ended

several months before the personal

30a

relationship developed. Therefore, by

appellants’ own admissions, there would

be no injury to the patient-psychiatrist

relationship, as it is their view that it

did not exist at the time the records

were subpoenaed.

The Adequacy of Safeguards

to Prevent Unauthorized Disclosure

The unauthorized disclosure of

Patient A’s records is prohibited by

several statutes.

Health-Gen. § 4-302 et seg., address

the confidentiality of medical records in

general. Section 4-302(a) requires

heaith care providers to keep medical

records confidential, and allows

disclosure only as provided by Maryland

law. Section 4-302(b) provides

exceptions for administrative records and

disclosures

governed by other confidentiality

3la

provisions.

Section 4-302(d) reads:

Redisclosure. -- A person to

whom a medical record is disclosed

may not redisclosed the medical

record to any other person unless

the redisclosure is:

(1) Authorized by the person in

interest;

(2) Otherwise permitted by this

subtitle...

There is no other provision in this

subtitle permitting redisclosure of

mental health records by the Board. 5

Under § 4-309, disclosing a medical

record in violation of the subtitle

subjects the violator to a possible

criminal fine and to actual damages ina

Civil suit.

Health Occ. §§ 14-401 et seg., give

the Board the authority to take

disciplinary actions against physicians.

*Initial disclosure to the Board is

permitted without the patient’s

authorization by Health-Gen. §4-

307(h) (1) (vi)1l.A. See discussion infra.

32a

Section 14-410 mandates that the Board’s

records and decisions are not

discoverable in criminal or civil

proceedings unless all parties stipulate

to disclosure, a civil action is brought

by the party being

investigated, or the information is

otherwise admissible as evidence.

Section 14-411(b) provides that,

"[(e] xcept as otherwise expressly

provided in this section, the Board or

any of its investigatory bodies may not

disclose any information contained in a

record." The section goes on to list the

bases upon which the Board can disclose

information. The permitted disclosures

are those necessary for the Board to

effectuate its purpose - disciplining

physicians. They are not’ public

disclosures that could cause Patient A

significant harm.

33a

Health Occ. § 14-501, discusses

"medical review committees." Section

14-501(b) (1) defines a medical review

committee as "(a] regulatory board or

agency established by State or federal

law to license, certify, or discipline

any provider of health care..." This

definition clearly encompasses the

Board. Section 14-501(d)(l) reads:

Except as otherwise provided in this

section, the proceedings, records,

and files of a medical review

committee are not discoverable and

are not admissible in evidence in

any

Civil action arising out of matters

that are being reviewed and

evaluated by the medical review

committee.

The only exceptions are when the civil

proceeding is brought by a party who

Claims to be aggrieved by the medical

review committee’s decision and when the

records before the committee are

otherwise

subject to discovery and introduction as

evidence in a civil trial. Id. at §

14-S501(e).

The legislature has certainly

addressed the area of confidentiality.

Disclosure of medical records is

restricted and penalties are prescribed

for unauthorized disclosure. As our role

is not to legislate but to interpret

laws, we conclude that the legislature’s

actions in this area are adequate to

safeguard against unauthorized disclosure

The Government’s need for Access

Health Occ. § 14-205(a) (2) empowers

the Board to investigate any written

complaint that alleges violations of

Title 14 - governing the licensing and

conduct of physicians in Maryland. It

35a

may discipline a physician licensed to

practics in Maryland for a broad range of

behaviors, including “immoral or

unprofessional conduct in the practice of

medicine, " professional incompetence,

habitual intoxication, and practice below

the standard of care. Health Occ. §§

14-404 (a) (3), (4), (7)? end: (29>).

According to the Board, each behavior is

implicated in the complaints filed

against

oe.

To deny the Board access to Dr. K’s

patient records to investigate

allegations of professional misconduct is

to deny it

the ability to carry out its legislative

Mandate and make decisions based on

facts. Assuming, arguendo, that Dr. K

did engage in unprofessional conduct in

his treatment of Patient A, and that his

36a

unprofessional conduct resulted in a

post-treatment romantic relationship

with Patient A, a lack of access to

Patient A’‘s records effectively

forecloses any meaningful investigation

into that conduct and any basis for

disciplinary action. The Board's

mission, to regulate the use of

physicians’ licenses in Maryland,

requires that it have access to the

records generated directly from the use

of that license.

Whether There is an Express

Statutory. Mandate, Articulated

Public Policy, or Other Public

Interest Militating Towards Access

There is indeed an express statutory

mandate allowing the Board access _ to

Patient A’s records. Health-Gen. §

4-307, addressed earlier. Appellee, in -

its memorandum supporting its Motion to

Compel and its Opposition to Motion for

37a

a Protective Order or to Quash, in

discussing this statute, states:

The provision requiring

disclosure of the records upon

subpoena: 1) is in the menial

health record portion of the

statute, 2) is a mandatory

disclosure, 3) is a disclosure

expressly without the consent of the

patient, and 4) overrides any

privilege.... The General Assembly,

after five years of drafting cn the

legislation, consideration during

two sessions, with an intervening

summer study, obviously made a

policy choice in this area.

Early in the process of creating

this legislation, in January, 1986, the

Attorney General issued a Report to the

Governor on the Confidentiality of Mental

Health Records. The report noted the

conflicts between the then-existing

privacy provisions in the various health

records statutes and stated that the

elimination of those contradictions was

a goal of the legislation. The report

recommended that "{ildally, a balance

38a

should be reached between the patient’s

right to confidentiality and society’s

sometimes powerful need to have access to

the patient’s records." Office of the

Attorney General, Report to the Governor

Records 9 (January, 1986) (on file with

Maryland State Law Library). The report

further recommended a comprehensive

reference statute dealing with disclosure

of mental health records. Id. at 10.

One statute that ultimately resulted

from this process is Health Gen. § 4-307,

set forth in part above. It is evident

that the statute’s clear language results

from a policy decision arrived at through

the cooperation of the State’s executive

and legislative branches.

Further, the State has a significant

interest in protecting its citizens and

the public health.

39a )

(N]o person has an absolute vested

right to practice medicine, but

Only a conditional right which

is subordinate to the police

power of the State to protect and

preserve the public health. The

State, in the performance of its

duty to protect and preserve the

public health, has the power, within

constitutional limitations, to

regulate the practice of medicine

by those engaged therein. This

regulatory power is Justified by the

fact that the practice of

medicine requires special

knowledge, training, skill and

care, that health and life are

committed to the Physician’s care,

and that patients Ordinarily lack

the knowledge and ability to judge

his qualifications.

Commission on Medical Discipline Vv.

Stillman, 291 Md. 390, 405-06 (1981)

(citing Aitchison v. State, 204 Md. 538,

544, cert. led, 348 U.S. 880 (1954) )

(citation omitted). See, Pitts v. State

Board of Examiners, 222 Md. 224, 226

(1960); Cocco v. Maryland Comm'n. on

Medical Discipline, 39 md. App. 170, 173

(1978), cert. denied, 444 U.S. g68

(1979).

sperm vomrreeac crs

40a

In the case sub judice, the State,

through the Board, seeks a limited, but

nonetheless significant, invasion into

Patient A’s privacy. A weighing of all

the factors discussed above leads us

inexorably to the conclusion that the

State’s interest outweighs Patient A’s

privacy right in this instance. To give

a patient, in effect, a veto over the

Board's pcver to regulate licensed

physicians would be to eviscerate the

Board’s ability to protect the larger

public interest. This is especially true

in a case such as this - where the

patient may not object to, or may even

support, the physician’s allegedly

unprofessional or unethical behavior. A

decision in favor of Patient A would

allow those physicians who are

unscrupulous and in a position to exert

influence over their patients to stop a

4la

preliminary investigation by the Board in

its tracks.

We emphasize that as yet no charges

have been filed and no disciplinary

action has been taken against Dr. K. At

this stage, it is just as likely as not

that the Board will agree with Dr. K’s

defense to the complaints filed

against him and take no disciplinary

action. Further, there are Statutory

provisions protecting Patient A’s records

from being used for any purpose other

than this investigation of opr. K.

Patient A may be entitled to sue for

Civil damages for any unauthorized

disclosure of her medical records.

We shall briefly address appellants’

concern regarding the hearsay basis for

the initial complaints. First,

“administrative agencies are not bound to

observe the ‘technical common law rules

42a

of evidence."’ Stillman, 291 Md. at 422

(quoting Dickinson-Tidewater Vv.

Supervisor, 273 Md. 245, 253 (1974));

Hill v. Baltimore Co., 86 Md. App. 642,

658, cert. denied, 323 Md. 185 (1991);

79 Md. App. 312, 321 (1989); Tron _v.

Prince George’s County, 69 Md. App. 256,

261 (1986). See Arnold Rochvarg, Hearsay

Experience and Suggestions for Change, 21

U. Balt. L. Rev. 1, n.2, passim (1991).

Second, the same public policy

ounabdanentote. that contributed to

favoring the State’s interest over

Patient A’s constitutional privacy right

militate against our restricting the

Board’s ability to gather and utilize

information in deciding whether or not to

conduct an investigation. Hearsay

information is probably the basis for

43a

investigations in many areas of

governmental licensing, from physician’s

licenses to liquor licenses to marriage

licenses.

Furthermore, while hearsay may be

the basis for an investigation by the

Board, before any formal action is taken

against Dr. K, he is entitled to a

hearing before a hearing officer, to be

represented by counsel at that hearing,

and to have any factual finding supported

by clear and convincing evidence. Health

Occ. § 14-405.

Finally, we note that although the

initial communication to the complainant

doctors was indeed from Dr. K’s wife, who

may well have been biased, the

complainant doctors, prior to filing

their complaint, met with Dr. K. in an

attempt to get his side or his version of

what was occurring. One of the doctors,

44a

in his complaint to the Board, informed

the Board that Dr. K had himself admitted

that the relationship was ongoing and of

a romantic nature. The other complainant

doctor informed the Board that, when Dr.

K was informed that his wife had said he

was having an affair with the woman

identified in the case sub judice as

Patient A, he acknowledged that that

assertion was valid. Additionally, in

his initial response to the Board, Dr. K,

though denying an "affair, admitted that

he was even then maintaining a personal

and romantic relationship with Patient A.

Thus, in view of Dr. K‘s own admissions

to at least maintaining a romantic

relationship with Patient A, the alleged

bias of Dr. K’s wife is of little

importance.

Under the circumstances of this

case, we perceive no error in the Board’s

45a

undertaking the investigation based upon

the information it had received,

irrespective of whether the complaints

themselves were initially based upon the

hearsay information Supplied by Dr. K’s

wife, when that information, for all

intents and purposes, was validated by

appellant.

We therefore hold that Patient A’s

constitutional right to Privacy in her

medical records pertaining to her

treatment by Dr. K is outweighed by the

State’s compelling interest in obtaining

those records for the purpose of

46a

investigating possible disciplinary

action against Dr. K.

JUDGMENT AFFIRMED; COSTS

47a

IN THE COURT OF APPEALS OF MARYLAND

DR. K., et al : Petition Docket

No. 557

Vv. : September Term, 1993

STATE BOARD OF : (No. 138, Sept. Term

PHYSICIAN QUALITY 1993, Court of

ASSURANCE Special Appeals)

ORDER

Upon consideration of the petition

for a writ of certiorari to the Court of

Special Appeals, and the answer filed

thereto in the above entitled case, it is

ORDERED, by the Court of Appeals of

Maryland, that the petition be, and it is

hereby, denied as there has been no

showing that review by certiorari is

desirable and in the public interest.

Judge Raker did not participate in

the consideration of this case.

Chief Judge

Date: March 9, 1994

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