Can medical records be released without consent? Supreme Court refuses case.

The potential issue for the Supreme Court centered on a Maryland law that empowers an oversight board to demand that a doctor immediately turn over requested medical records or face sanctions.

J. Scott Applewhite/AP
The US Supreme Court building is seen in Washington on Sept. 28. On Monday, an issue for the Supreme Court centered on a Maryland law that empowers an oversight board to demand that a physician immediately turn over requested medical records or face fines.

The US Supreme Court on Monday turned aside an appeal involving the scope of privacy protections for a patient’s medical records when a state agency seeks to force a doctor to disclose those records without first obtaining a patient’s consent.

At issue was a Maryland law that empowers an oversight board to demand that a physician immediately turn over requested medical files or face fines and other disciplinary action.

The only recourse is for the objecting patient to hire a lawyer and file a lawsuit challenging the release. Short of filing such a lawsuit, the physician is required to turn over confidential doctor-patient records. The regime was upheld by Maryland’s highest court in a 4-to-3 decision.

The case was seen as an opportunity for the high court to more fully define a patient’s right to privacy.

“This case is an appropriate vehicle for the Court to define the scope of the right to privacy in medical records because it avoids the passions associated with cases involving abortion rights and religious fervor,” wrote New York lawyer David Felsher in his brief urging the Supreme Court to take up the dispute.

The justices did not explain their decision not to hear the case.

The appeal stems from the efforts of Harold Eist, a Washington-area psychiatrist and professor at George Washington University’s School of Medicine and Health Sciences, to maintain the confidentiality of doctor-patient records.

Dr. Eist received a reprimand and a $5,000 fine because he refused to immediately surrender to state authorities the private files of two of his patients until his clients agreed to their release.

The Maryland Board of Physicians cited a state law that requires immediate release of the documents regardless of whether a patient agrees. Eist failed to comply for 11 months, the board said.

The demand for the confidential files was prompted by an allegation that Eist was overmedicating the two patients. The charge was made by the husband and father of the patients, at a time when the husband and one of the patients were in the midst of a contentious divorce and custody battle.

In general, patient records are kept confidential and are not disclosed to third parties without the prior approval of the patient.

In Maryland, however, a state law bypasses any role for the patient. When the board of physicians seeks documents, a doctor is required to turn them over.

When Eist balked at turning over the records, expressing concern about his ethical responsibilities to his patients, the board responded by threatening sanctions.

Later, after the patients consented to release of the documents and the board determined that there was no substance to the allegation, it nonetheless took action against the doctor for failing to immediately comply with its demands.

A state appeals court reversed the board’s sanction, but Maryland’s highest court reinstated it. That court ruled that the statute does not permit a physician to delay production of the records. The statute indicates that the disclosure of patient records may be delayed only by filing a lawsuit. Since no lawsuit was filed, the sanctions were upheld.

Eist’s lawyer said the Maryland court should have performed a balancing test to weigh the board’s need to obtain the records against the patients’ right to keep the information private.

“[Eist] faced a Hobson’s Choice,” Mr. Felsher wrote. “He could choose to comply with the subpoena and thereby ignore his professional obligation to maintain patient confidentiality. Alternatively, [Eist] could choose to protect his patients’ privacy by objecting to or by not complying with the subpoena, but then he would run the risk of being sanctioned by the [physicians board] (which is what occurred in this case).”

The lawyer added: “In Maryland, the psychotherapeutic privilege belongs to the patients and not the psychiatrist treating those patients.”

The case was Eist v. Maryland State Board of Physicians (10-1425).

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