Patient confidentiality no defense to board's subpoena, CSA affirms

The Board of Physician Quality Assurance was within its rights to revoke the medical license of a doctor who, citing confidentiality concerns, refused to comply with its subpoena of 19 patients' records, the Court of Special Appeals has held.

In a decision dated last Friday but released by the court yesterday, the appellate panel rejected Dr. Barbara Solomon's claims that, among other things, the subpoena violated state and federal law and that a license revocation was too harsh a penalty for failing to comply with an administrative subpoena - especially since there was no open claim against her.

[E]ven assuming arguendo that revocation of Dr. Solomon's license was disproportionate to her misconduct, it surely was not so disproportionate as to be 'arbitrary or capricious,' Judge Mary Ellen Barbera wrote for the appeals court, noting that the penalty is authorized by statute.

The decision is Solomon's second loss before the appeals court arising out of the board's follow-up investigation to one patient's complaint, filed in 1997 and closed in 1998.

Six months after closing the claim, the board subpoenaed Solomon's appointment schedule for October, November and December 1998 and several other items, which it later voluntarily dropped from the subpoena.

The Baltimore County Circuit Court denied Solomon's motion to quash the February 1999 subpoena, and Solomon appealed.

In an unreported opinion in April 2000, the Court of Special Appeals affirmed the board's right to subpoena records without an open claim and rejected Solomon's claims of patient confidentiality. The case was reissued as a reported opinion that June (Solomon I), giving it value as precedent.

Meanwhile, however, Solomon's troubles with the board continued to mount. In November 1999, she handed over the appointment logs. On Dec. 2, 1999, the board issued a second subpoena. This time, it asked for the entire medical charts of 19 patients randomly selected from the entries in Solomon's appointment logs.

More importantly, in May 2000 - six months after the second subpoena was issued, and one month after the Court of Special Appeals made its decision - the board charged Solomon with unprofessional conduct and failure to cooperate with a lawful board investigation. That led to a hearing before an administrative law judge and, ultimately, the board's final order revoking Solomon's license in April 2001.

The circuit court affirmed the board's action, leading to the appeal decided last week.

Many of Solomon's arguments were the same or variations on those the court dealt with in Solomon I, including her claim that the state Confidentiality of Medical Records Act barred her from complying with the subpoena, and the court remained unconvinced.

Solomon also raised the recently adopted regulations implementing the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) - an argument the court found unavailing.

Not only were the regulations adopted after Solomon's license was revoked in April 2001, but even if the implementing regulations had been in effect at the time, the regulations are not applicable to disclosures of medical records to a licensure or disciplinary agency, such as the Board, Barbera wrote.

In addition, the court turned aside Solomon's challenge to the way in which the administrative law judge conducted the March 2001 hearing, including the ALJ's refusal to let her call the 19 patients whose records were subpoenaed.

Their testimony was not relevant to the question of whether Solomon had complied with the investigation, the court noted; moreover, this Court has made clear that patients have no veto power over subpoenas issued by the Board in the course of investigating a physician, Barbera wrote, citing a case it decided in 1993.

WHAT THE COURT HELD

Case:

Solomon v. BPQA, CSA No. 361, Sept. Term 2002. Reported. Opinion by Barbera, J., filed Dec. 19, 2003.

Issue:

Did the Board of Physician Quality Assurance properly revoke the license of a physician who failed to comply with an administrative subpoena duces tecum in the board's follow-up investigation to a closed patient complaint?

Holding:

No; affirmed. The subpoena was not overbroad and the physician's compliance was not barred by patient confidentiality laws or privilege; furthermore, license revocation is authorized by statute as a sanction for failure to cooperate with an investigation by the board.

Counsel:

John M. DiJoseph, Arlington, Va., and Mercedes C. Samborsky for appellant; Sarah E. Pendley for appellee.