SJC to Weigh Patient Privilege: Records of Psychiatrist Sought by Medical Panel
By Jack Dew
Published: Massachusetts Lawyers Weekly, May 3, 2010
The Supreme Judicial Court will hear oral arguments on May 3 in a case that could alter the definition of the psychotherapist-patient privilege.
The case pits the Board of Registration in Medicine against a Revere psychiatrist. The board argues that it has reason to suspect the doctor is abusing his prescribing privileges and giving patients inappropriate amounts of powerful painkillers and has sought patient records from a random sample of his clients.
The doctor responds that he specializes in the psychiatric treatment of patients who suffer chronic pain and says his patient records are protected by the psychotherapist-patient privilege contained in G.L.c. 233, §20B.
In 2008, a Superior Court judge sided with the board and ordered the doctor - identified in court papers only as John Doe - to turn over the records. The doctor appealed to the Appeals Court, and the SJC took the case on its own initiative. Meanwhile, the Superior Court order has been stayed pending the appeal.
The briefs in Board of Registration in Medicine v. Doe can be found by clicking here.
Privilege at stake
On the defendant's side, lawyers argue that a crucial privilege is at stake in the case. The Legislature has granted specific protections to psychotherapist-patient communications, they say, in order to foster strong therapeutic relationships.
Dean P. Nicastro of Pierce & Mandell in Boston is not involved in the case but often defends doctors. He said the board should tread carefully when it seeks to pierce the privilege that exists between any caregiver and a patient.
"The patient-physician confidentiality relationship is an extremely important one in the practice of medicine," he said. "There are important principles at stake not just to the physician, but to the practice of medicine generally."
He called the question of whether the board is entitled to view a psychiatrist's patient records a "gray area," but one that the doctor's lawyer "has an obligation to defend zealously."
Paul R. Cirel of Dwyer & Collora in Boston represents the defendant doctor. He told Lawyers Weekly that Massachusetts is a state of few privileges, protecting only communications between clients and their attorneys, the penitent and their clergy, and patients and their psychotherapist.
"Clearly, the idea behind the privilege is to create a place for people who are in need of a safe haven, a place where they can unload their darkest and deepest secrets without fear that someone else will be looking at them," he said. "We think this is so important in Massachusetts that we made it one of the few privileges that we have, and it seems to me that if it were to be eroded or undermined, it would have to be by an act of the Legislature and not the Board of Registration in Medicine."
Ellen J. Messing of Messing, Rudavsky & Weliky in Boston called the case "scary, because the board seems to be taking the position that they can micromanage the characterization of a psychiatrist's practice." Patients' rights, she said, could be trampled in the process.
"If you go to a psychiatrist ... it may be that someone could do a microanalysis of that doctor's caseload five years later and say, ‘Gee whiz, this guy wasn't a psychiatrist,'" she said. "People who are suffering from emotional difficulties should be free to unburden themselves to learned professionals. Sometimes that learned professional isn't so learned, but that little oasis needs to be protected or people will start being so guarded with their therapists to dramatically diminish the benefit of therapy."
Obligation to investigate
But the Board of Registration in Medicine argues that it is obligated to investigate potential medical misconduct and can only do that with access to medical records. Further, it claims that the doctor in the case was acting as a physician and not as a psychiatrist, thus the therapist privilege should not apply.
In an amicus brief submitted on behalf of the Federation of State Medical Boards, Timothy C. Miller, a Dallas attorney, argues that "the protection of the public requires that the Board have timely, unfettered access to patient medical records of the physician under investigation."
While the psychotherapist-patient privilege "provides confidentiality for statements patients make for the purpose of diagnosis or treatment," he wrote, it "is not an absolute privilege; instead, it is a qualified privilege that gives way for other stronger public policy concerns."
"The allegations in this case are very serious," he added. "If the allegations are true, the physician is a danger to society. The citizens of Massachusetts created the Board for this very possibility. Courts must balance public policies, but this maxim remains true - ‘The protective privilege ends where the public peril begins.'"
The board is represented by Assistant Attorney General Daniel J. Hammond, who declined to comment through a department spokesman. The Board of Registration in Medicine also declined to comment.
Odd practice
The conduct of "Dr. Doe" first came to the attention of the board when one of his patient's sought treatment from another doctor for an addiction to pain medication. That doctor contacted Doe and asked why he had prescribed the patient Percocet. He later told the board that Doe was "unable to respond satisfactorily to his questions and ‘seemed unable to comprehend'" them, leading the doctor to suspect that Doe "may be cognitively impaired," according to the board's brief.
The board reviewed Doe's prescribing practices and found that he had written prescriptions for some form of oxycodone to 81 percent of his 205 patients, and diazepam to 78 percent. It also found that he had written painkiller prescriptions for someone in his household.
The board sent a letter to the doctor, asking him to produce the patient's records and the records of 23 additional patients.
Doe provided a complete record of the one patient's care but refused to produce any of the other records, invoking the psychotherapist-patient privilege. He told the board that he required his patients to enter a contract with him agreeing not to seek medication elsewhere or to abuse painkillers. If they did, Doe was allowed to drop them as a patient and the patient would waive confidentiality.
In its brief, the board says Doe "revealed some idiosyncratic aspects of his practice" during an interview with an investigator. "He accepted payment only in cash and did not accept insurance; that he accepted only patients who were referred to him by other patients; that he scheduled no appointments, but rather conducted ‘open' office hours three days per week."
When Doe refused to turn over his records, the board sought injunctive relief in Superior Court, which Doe opposed, arguing that the records were protected by the psychotherapist-patient privilege contained in G.L.c. 233, §20B, or by Massachusetts common law regarding the right to privacy.
When the board argued that Doe was, by his own admission, spending the bulk of his practice as a physician and not a psychiatrist, Doe sought an evidentiary hearing, which Judge Charles T. Spurlock denied, ordering Doe to turn over the records.
In his appeal on Doe's behalf, Cirel argues that the Board of Registration in Medicine has mischaracterized his client's practice while ignoring the clear privilege carved out by the Legislature for Doe's patient information.
"The Board improperly seeks to brush aside a well established privilege and asks this Court to give it carte blanche to examine all patient treatment records maintained by a psychiatrist," Cirel wrote. "The privilege does not allow such disclosure and this Court may not add exclusions beyond what the Legislature has deemed appropriate."
But the board responds that the psychotherapist-patient privilege should not apply because "the Board's need for the requested records, in furtherance of its core function of protecting the health and safety of the public, would have overcome the assertion of the privilege in this case."
Regardless, the board argues that G.L.c. 233, §20B defines a psychotherapist as someone who spends a "substantial portion" of his time in that capacity, and it claims Doe does not meet that definition.
Though appellate courts in Massachusetts have had "scant opportunity to construe the ‘substantial portion' requirement," the board writes, the few courts that have have "conducted a straightforward, plain-language parsing of the statute," such as in Robinson v. Commonwealth, in which the court held that a pediatrician who had been assigned to a hospital's psychiatric department for eight months "fit the definition of a physician who devoted a substantial portion of her time to the practice of psychiatry."
But Cirel invokes the same precedent, arguing that it supports a broad interpretation of "psychotherapist." The SJC concluded in Robinson that because the doctor introduced herself as a psychiatrist - even though her board certification was in pediatrics - the privilege was intact.
"The SJC did not attempt to evaluate the type, quality, or substance of the mental health treatment [the doctor] provided. It did not even discuss whether [the doctor] provided any psychotherapy for the defendant. Instead, the SJC simply examined how the doctor introduced herself to the defendant, whether she made a mental status evaluation, and what her specialty was at the time she spoke to the patient," Cirel wrote.
Under that standard, he added, "a board-certified psychiatrist must qualify as a ‘psychotherapist' under G.L.c. 233, §20B."