JOHN C. ELDRIDGE (Retired, Specially Assigned), J.
This is an action under the judicial review section of the Maryland Administrative Procedure Act
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.
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:
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.
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:
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."
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.
On July 11, 2001, Dr. Eist's attorney sent to the Board a letter stating that
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 outright dishonest 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
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
A similar message was given to the representative of the children. None of the parties responded to these requests.
Dr. Eist turned over the patients' records to the Board on March 20, 2002. Dr. Eist's attorney wrote to both the Assistant Attorney General for the Department of Health and Mental Hygiene and the "Compliance Analyst" for the Board, stating that, in turning over the records, "we do not concede that Dr. Eist in any way refused in the past to cooperate with an `investigation.'"
On October 31, 2002, the Board forwarded the files, including the original complaint and the patient records produced by Dr. Eist, to the Maryland Psychiatric Society's Peer Review Committee. Dr. Eist appeared before the Peer Review Committee on August 26, 2003. The report of the Maryland Psychiatric Society Peer Review Committee, dated November 30, 2003, ultimately determined that Dr. Eist had "prescribed medications appropriately" and that there was "no evidence that he over prescribed any medication or induced psychotic symptoms." The Committee also found that Dr. Eist "behaved in a professional manner" when interacting with the complainant and that there had been "no breach in any applicable standard of care in his treatment or conduct with the patients."
On December 1, 2003, the Board received the report of the Peer Review Committee, and, on February 5, 2004, the Board decided not to charge Dr. Eist based on the complaint of the patient's estranged husband. The husband's complaint was dismissed. Nevertheless, the Board pointed out that the matter "of failing to cooperate with a lawful investigation conducted by the Board ... remains open."
While the above-reviewed events were taking place, the Board's charge, that Dr. Eist failed to cooperate with a lawful investigation by the Board, was being processed by the Maryland Office of Administrative Hearings. Numerous motions, memoranda and exhibits were filed with that Office, by both sides, between February 4, 2002, and July 15, 2002. A hearing took place before an Administrative Law Judge (ALJ) of the Office of Administrative Hearings on July 15, 2002.
Both sides agreed that there were no disputes as to the material facts, and both sides filed motions for summary decision pursuant to COMAR 28.02.01.12D.
The ALJ indicated that the "independent factfinder" with regard to the patient's assertion of privilege should be a judge, that the Board had the obligation of seeking judicial enforcement of the subpoena, and that "the Board's failure to seek enforcement of the subpoena does not place the onus of seeking judicial intervention on the Respondent [Dr. Eist]." The ALJ concluded "that the Respondent followed the only ethical course of action available to him under the circumstances" and that the "Respondent did not fail to cooperate; rather he attempted to cooperate while preserving the integrity of the confidential relationship with his patients." The ALJ granted the Respondent's Motion for Summary Decision, denied the Board's Motion for Summary Decision, and recommended that the charges be dismissed.
The "Administrative Prosecutor" filed with the Board exceptions to the ALJ's recommended decision. After a hearing before the Board, the Board on January 28, 2003, rejected the ALJ's recommended decision and found that Dr. Eist had failed to cooperate with a lawful investigation. In a fourteen page opinion, the Board reviewed the undisputed facts as well as the applicable law. The Board pointed out that the plain wording of the applicable statute requires a health care provider, in accordance with a subpoena, to disclose to the Board a particular patient's medical records, regardless of the patient's consent, for purpose of an investigation into the alleged improper practice of a health professional. See Maryland Code (2000, 2009 Repl.Vol.), §§ 4-306 and 4-307(k)(1)(v)(1) of the Health-General Article. The Board recognized the role of a court, in ruling upon a motion to quash or a motion for a protective order, to weigh a patient's constitutional privacy interests in the records against the Board's need for the records. The Board, however, disagreed with the ALJ's view that "the Board must petition a court in each and every instance" a subpoena is issued. According to the Board, the "party who wishes to present a constitutional claim has the burden of presenting it to a court."
Dr. Eist filed in the Circuit Court for Montgomery County an action for judicial review of the Board's decision reprimanding him and imposing a $5,000 fine.
The Circuit Court went on to point out that "a patient's right to privacy" may be "outweighed by a board's need for information when conducting a lawful investigation under its statutory authority." The court continued:
Turning to the applicable statute,
Nevertheless, the Circuit Court found that an "error of law" was committed in the administrative proceedings. The court found that, because the ALJ had decided the case on cross motions for summary decisions, the record had not been sufficiently developed to decide whether there would be a violation of the statute
The court remanded the case to the Board for the Board to decide whether Dr. Eist acted "reasonably and in good faith." The Circuit Court also stated:
On remand, the Board again referred the case to an ALJ for an evidentiary hearing on the issues set forth in the Circuit Court's remand order. After hearing from several witnesses and developing an extensive record, the ALJ again decided the matter in Dr. Eist's favor. The ALJ determined that the subpoena was not lawfully issued because the Board had failed to correctly weigh the patients' privacy rights against the Board's interest in obtaining their records. The ALJ also found that Dr. Eist had acted in good faith because he relied upon the advice of counsel. Based on these determinations, the ALJ concluded that Dr. Eist had not violated § 14-404(a)(33) of the Health Occupations Article. The ALJ's Proposed Decision recommended that the charges against Dr. Eist be dismissed. The Administrative Prosecutor again filed exceptions to the Proposed Decision of the ALJ. After a hearing, the Board declined to adopt the Proposed Decision and instead issued a Final Decision sanctioning Dr. Eist with a reprimand and a fine of $5,000.
The present action for judicial review was then filed in the Circuit Court. The court, in a brief order, reversed the Board's decision and ordered the Board to dismiss the charges against Dr. Eist. The Board appealed to the Court of Special Appeals, and that court, in an extensive opinion, affirmed the judgment of the trial court. Board of Physicians v. Eist, 176 Md.App. 82, 932 A.2d 783 (2007). The Court of Special Appeals, like the ALJ but contrary to the first circuit court decision, held that "the burden [was] on the Board to obtain a ruling from a court on the [patients'] privacy issue" with respect to the subpoenaed records. Board of Physicians v. Eist, supra, 176 Md.App. at 135, 932 A.2d at 814. The intermediate appellate court further held that, until the Board does obtain a judicial ruling (176 Md.App. at 134, 932 A.2d at 814),
At other places in its opinion, however, the Court of Special Appeals seemed to view the "governmental interest/privacy interest" issue as one which could properly be resolved in this judicial review action, and the intermediate appellate court held (176 Md.App. at 120, 932 A.2d at 805-806):
In the final paragraph of its opinion, the Court of Special Appeals concluded as follows (176 Md.App. at 135, 932 A.2d at 814-815):
The Board filed in this Court a petition for a writ of certiorari which was granted. Board of Physicians v. Eist, 402 Md. 355, 936 A.2d 852 (2007). Dr. Eist did not file a cross-petition for a writ of certiorari. The Board's petition presented the following two questions (citations to the Maryland Code omitted):
We shall answer the first question in the affirmative. Therefore, we need not, and shall not, reach the second question.
A major premise underlying the recommended decisions of the ALJ and the decision of the Court of Special Appeals is that the Board bears the burden of instituting a judicial proceeding to enforce the subpoena. At such proceeding, a court would weigh the patients' privacy interests in the subpoenaed records against the Board's need for those records. The Court of Special Appeals held that, in the absence of a judicial proceeding to enforce the subpoena, Dr. Eist, acting in good faith, could not be guilty of failing to cooperate with the Board's investigation. The intermediate appellate court also seemed to hold that the issue of weighing the Board's need for the records against the patients' privacy rights could properly be reached in the present administrative/judicial review action, and that, on this record, the patients' privacy rights outweighed the Board's need. Consequently, according to the Court of Special Appeals, Dr. Eist did not fail to cooperate by refusing to turn over the records.
The premise, that the Board had the burden of instituting a judicial action to enforce the subpoena, is inconsistent with the applicable statutes and is not supported by the Maryland cases relied on by the ALJ and the Court of Special Appeals. Moreover, the issue of weighing the patients' privacy rights against the Board's need for the records should have been resolved in an action by the patients
Turning first to the applicable statutes, §§ 14-401 et seq. of the Health Occupations Article of the Code comprehensively authorize the Board to take disciplinary action against health care providers, to investigate allegations of conduct warranting disciplinary action, to hold hearings, etc. Section 14-401(i) provides that the "Board may issue subpoenas ... in connection with any investigation...." Section 14-206(a) of the Health Occupations Article reiterates that "the Board may issue subpoenas ... in connection with any investigation under this title...." As earlier noted, supra n. 4, § 14-404(a)(33) of the Health Occupations Article 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." Section 14-405.1 of the Health Occupations Article provides that, if the Board finds grounds to suspend or revoke a physician's license, or to reprimand a physician, the Board may also impose a fine upon the physician.
The pertinent statutory provisions governing the confidentiality and disclosure by health care providers of medical records, including mental health medical records, are set forth in Maryland Code (2000, 2009 Repl.Vol.), Title 4, Subtitle 3, §§ 4-301 through 4-309 of the Health-General Article. The basic section dealing with investigations and the disclosures of medical records "without [the] authorization of [the] person in interest" is § 4-306. That section provides in relevant part as follows (emphasis added):
Section 4-307, concerning mental health medical records, reiterates that, in connection with a Board investigation, records must be provided to the Board regardless of a patient's authorization, and that the appropriate procedure for weighing a patient's privacy interests against the Board's need for the records is for the patient or the health care provider to file a
With respect to a health care provider's or patient's remedy, § 4-307(k)(6) states (emphasis added):
Thus the statute grants standing to the health care provider, as well as others opposed to disclosure, to raise the patient's constitutional rights or other grounds for nondisclosure, by filing in court a motion to quash or a motion for a protective order.
Consequently, the above-reviewed statutory provisions make it clear that, when the Board is investigating a complaint against a health care provider and subpoenas certain medical records in his or her possession, the health care provider is required to provide the medical records to the Board regardless of the patient's authorization. Contrary to a criticism expressed by the ALJ and the Court of Special Appeals, however, neither the statutes nor the Board treat the health care provider's obligation to provide the records as an "absolute" one. If the patient and/or the health care provider believe that there are grounds for not producing the records, the patient or the health care provider must file a motion to quash the subpoena or a motion for a protective order pursuant to Maryland Rules 2-403 or 2-510. This is the route chosen by the General Assembly for the resolution of constitutional or other objections to the subpoena. The General Assembly did not provide for an action by the Board to enforce the subpoena.
The Court of Special Appeals and the ALJ, in weighing the patients' privacy rights against the Board's need for the medical records in Dr. Eist's possession, extensively relied upon this Court's opinion in Doe v. Maryland Board of Social Work Examiners, 384 Md. 161, 862 A.2d 996 (2004), and upon the Court of Special Appeals' earlier opinion in Dr. K. v. State Board of Physician Quality Assurance, 98 Md.App. 103, 632 A.2d 453 (1993), cert. denied, 334 Md. 18, 637 A.2d 1191, cert. denied, 513 U.S. 817, 115 S.Ct. 75, 130 L.Ed.2d 29 (1994). The Doe case involved a subpoena for records of a social worker concerning two of the social worker's clients. Dr. K, like the present case, involved a subpoena for a psychiatrist's medical records relating to one of the psychiatrist's patients. In both of these cases, the appellate courts, inter alia, weighed the agencies' need for the subpoenaed records against the clients' and patient's privacy rights in the records. The Court of Appeals in Doe and the Court of Special Appeals in Dr. K. held that the agencies' need for the records outweighed the privacy interests of the clients in Doe and the patient in Dr. K. What is significant for purposes of the present case, and what was overlooked by the ALJ and the Court of Special Appeals in the present case, is that both Doe and Dr. K. were judicial actions to quash the subpoenas issued by the administrative agencies during the agencies' investigations. In both cases, the trial courts denied motions to quash the subpoenas, and these decisions were affirmed on appeal. Doe and Dr. K. were not, like the present case, actions for judicial review of final adjudicatory decisions by the administrative agencies.
Other cases in this Court illustrate that a motion to quash, or a motion for a protective order, or a motion for enforcement of the subpoena if provided for by statute, are the appropriate routes for raising challenges to administrative subpoenas. See, e.g., Unnamed Attorney v. Attorney Grievance Commission, 409 Md. 509, 976 A.2d 267 (2009); Lubin v. Agora, 389 Md. 1, 882 A.2d 833 (2005); State Commission v. Freedom Express, 375 Md. 2, 825 A.2d 354 (2003); Dep't of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992); Unnamed Atty. v. Attorney Griev. Comm'n, 303 Md. 473, 494 A.2d 940 (1985); Fred W. Allnutt, Inc. v. Comm'r, Lab. & Ind., 289 Md. 35, 421 A.2d 1360 (1980); Banach v. State Comm'n On Human Relations, 277 Md. 502, 356 A.2d 242 (1976). The parties have not called to our attention any opinion of this Court, involving
Under § 4-306 and 4-307 of the Health-General Article of the Maryland Code, Dr. Eist's exclusive judicial remedy was to file, in the Circuit Court for Montgomery County, a motion to quash the subpoena or a motion for a protective order. He was not entitled to refuse timely compliance with the subpoena, refrain from filing a motion to quash or a motion for a protective order, and later, in this collateral contested case administrative proceeding, challenge the subpoena.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT WITH DIRECTIONS TO AFFIRM THE DECISION OF THE MARYLAND STATE BOARD OF PHYSICIANS.
BELL, C.J., RAKER and CATHELL, JJ., dissent.
RAKER, J., dissenting, joined by BELL, C.J. and CATHELL, J.
The Circuit Court for Montgomery County reversed the decision of the Maryland State Board of Physicians on April 5, 2006, and remanded the matter to the Board with instructions to dismiss the charge against Dr. Eist. Earlier, in August of 2005, the same court ruled, from the bench, that the Board had committed an error of law when it determined, inter alia, that a doctor who fails to produce records in response to a Board-issued subpoena necessarily violates Maryland Code (1981, 2009 Repl.Vol.) § 14-404(a)(33) of the Health Occupations Article, even if he acted in good faith and in reliance upon the advice of counsel. The court then remanded the matter to the Board for a full contested case hearing before the ALJ. I would affirm the Circuit Court for Montgomery County on the grounds that Dr. Eist, in relying upon the advice of his counsel, did not fail to cooperate with a lawful investigation conducted by the Board.
Dr. Eist was represented on this issue by a highly respected and competent attorney, Armin U. Kuder. It is clear from the facts that Mr. Kuder was advising Dr. Eist throughout these proceedings. Under the circumstances presented herein, and whether a doctor must file a motion to quash a subpoena or simply may decline to provide the medical records, it seems to me that a physician should be able to rely upon and follow the advice of his attorney.
I gleaned the following facts related to this representation from the opinion of the Court of Special Appeals, which noted as follows:
Board of Physicians v. Eist, 176 Md.App. 82, 104-06, 932 A.2d 783, 796-97 (2007).
I would affirm the judgment of the Court of Special Appeals, albeit on different grounds than that court held. I would hold that Dr. Eist relied in good faith upon
I am authorized to state that Chief Judge ROBERT M. BELL and Judge DALE CATHELL join in the views expressed in this dissenting opinion.
Whether the Board, in its discretion, could bring a judicial action to enforce the subpoena is an issue which was not raised before us. The General Assembly's use of the word "MUST" in § 4-306(b)(6) of the Health Occupations Article may suggest that a motion to quash or a motion for a protective order are the exclusive methods to resolve challenges to the subpoenas. On the other hand, § 4-306(b)(6) relates just to recipients of a subpoena. Because the issue was not raised, we shall not explore it further. We hold only that, in light of the statutory provisions, the Board is not required to bring a judicial action to enforce the subpoena.
It should be pointed out that the above-discussed principle would not apply in cases involving subpoenas issued by federal grand juries or federal agencies. The reason for this is that denial of a motion to quash by a federal trial court is not appealable even though the denial of the motion terminates the proceeding in the trial court. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). If the recipient of a federal subpoena desires to continue challenging it after the trial court denies a motion to quash, the recipient must disobey the subpoena and challenge it in a collateral proceeding such as a contempt action. This Court, however, has consistently refused to follow the non-appealability rule adopted by the Supreme Court in Alexander, Cobbledick, and Ryan. When a Maryland trial court denies a motion to quash or a motion for a protective order, and that action terminates the proceedings in the court, the trial court's denial is appealable even though administrative proceedings, or investigative proceedings, or separate court proceedings where the recipient of the subpoena was not a party, are ongoing. See, e.g., Unnamed Attorney v. Attorney Grievance Commission, 409 Md. 509, 513-514 n. 2, 976 A.2d 267, 270 n. 2 (2009); St. Joseph Medical Center, Inc. v. Cardiac Surgery, 392 Md. 75, 88-91, 896 A.2d 304, 312-313 (2006); Dep't of Social Services v. Stein, 328 Md. 1, 20-22, 612 A.2d 880, 885-886 (1992); Unnamed Atty. v. Attorney Griev. Comm'n, 303 Md. 473, 480-483, 494 A.2d 940, 943-945 (1985); In Re: Special Investigation No. 244, 296 Md. 80, 83-86, 459 A.2d 1111, 1114 (1983).
