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The Onus of Petitioning for the Judicial Review of Subpoenas is on the Recipient, not the Sender
(January 2011) By Gregory L. Arbogast, Associate
For more information, contact Paul Farquharson.
Md. State Bd. of Physicians v. Eist,
No. 110 (Md. January 21, 2011) |
View pdf
In Md. State Bd. of Physicians v.
Eist, the Court of Appeals held that the onus of petitioning for the
judicial review of a subpoena for medical records is on the doctor receiving the
subpoena or the affected patient, not the serving party. The Court held that the
doctor and/or the patient must file a Motion to Quash if they believe that the
interest of doctor-patient confidentiality outweighs an interest in
investigating a doctor.
This case arose out of a disciplinary action against Harold
I. Eist, M.D. Petitioner, whose identity remained confidential, filed a
Complaint with the Maryland State Board of Physicians (the “Board”), which
alleged that Dr. Eist over-medicated Petitioner’s estranged wife and children.
The Board subpoenaed Petitioner’s wife’s and children’s mental health file from
Dr. Eist for review. Dr. Eist wrote to his patients, explaining the situation
and asking for permission to disclose their medical files to the Board. Dr.
Eist’s patients all refused permission and Dr. Eist relayed that information to
the Board. Dr. Eist also informed the Board that he believed the Petitioner was
attempting to extract confidential mental health information from his patients
after a bitter divorce. Despite this information, the Board initiated an action
against Dr. Eist for failure to comply with a lawful investigation.
This case has a lengthy and complex procedural history.
It has been before an Administrative Law Judge twice, the Board twice, the
Circuit Court twice, the Court of Special Appeals and now the Court of
Appeals. The issue before the Court of Appeals was essentially whether the
recipient of a subpoena duces tecum bears the
burden of seeking judicial intervention, or whether the party propounding
the subpoena bears the burden of seeking judicial intervention when a
dispute over a subpoena arises.
The Court of Appeals held that the recipient of a
subpoena bears the burden of seeking judicial intervention and must file a
Motion to Quash the subpoena. The Court acknowledged that a subpoena for
medical records can be quashed in the event that the patients’ interest in
confidentiality outweighs the Board’s interest in pursuing an investigation.
However, the Court found that it is for an independent judicial body to make
that determination. Md. Rules 2-403 & 2-510 state that if the healthcare
provider and/or the patient believe that a subpoena should be quashed, then
the healthcare provider and/or the patient “must” file a Motion to Quash.
The rules place no such onus on the Board. Therefore, the law is clear that
the recipient of a subpoena bears the burden of seeking judicial
intervention in the production of medical records.
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