[ Monday, September 17, 2007 ]


Maryland Court Notes Federal Right to Privacy: in this case, a state physician licensing board was reviewing the care provided by a particular doctor, and subpoenaed the records of the doctor's patients. The doctor refused to provide them, claiming for the patient a federal constitutional right to privacy. (Hey, today's Constitution Day, so I'll reprint in full the text of the constitution dealing with privacy: _____________________. There ya go!)

The state board has a statutory right to the records without patient consent; the court did not overrule the statute as unconstititional, but ruled that in this case the patient's constitutional rights outweighed the state's interest. Should every physician in Maryland now refuse to hand over records to the state board until a court determines whether, in that case, the patient's constitutional rights outweigh the state's need to conduct oversight over physicians?

Case via Jim Pyles.

UPDATE: OK, that's a goofy-arsed case. The psychiatrist's records were subpoenaed by the State Board in a complaint brought by the husband and father of 3 of the doctor's patients (guess what -- there was an "acrimonious" divorce going on), who claimed the doctor over-medicated them. He notified the patients and they said don't disclose, so he and the patients' counsel all responded that the patients were asserting their federal constitutional privacy rights and he wouldn't give up the records. The state did not try to enforce the subpoena, and the psychiatrist and patients' counsel did not move to quash it: it just sat there. 11 months later, the board brought a case against the doctor for failing to cooperate in an investigation, since he hadn't produced the subpoenaed info. Upon that threat, he re-asked the patients and their counsel if they were still standing behind their constitutional right to privacy; if he didn't hear from them, he'd assume they were willing to let the info go. They either said OK or didn't respond (the divorce was probably settled by then), so he sent the info on and the State Board said he did not over-medicate them, and dismissed the complaint. BUT, the State Board still wanted to harangue the doctor over his failure to cooperate in the first place (which failure should've been mooted by the later cooperation).

That's not all. An administrative law judge ruled on summary motion that the doctor didn't fail to cooperate, since he had good reason not to. But the board didn't buy it, and still found him guilty. An appellate court from that case overruled the board's guilty determination and sent it back to the ALJ for a full case. The ALJ again decided there was no crime, but again the Board rejected that finding and found him guilty. Again it went to an appellate court, which again overruled the Board and said he shouldn't be found guilty.

SO, the records were produced, but the Board wanted to beat up on the doctor anyway. So the Maryland Supreme Court had to step in, and we get an excellent example of the way bad facts make for bad law.


Jeff [10:57 AM]

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