Md. State Bd. of Physicians v. Eist (Full Text)

IN THE COURT OF APPEALS OF MARYLAND

No . 110
Sep tember Term, 2007
_________________________________________

MARYLAND STATE BOARD OF PHYSICIANS

v .

HAROLD I . EIST

__________________________________________

Bell , C . J .
Harre ll
Battaglia
Greene
E ldr idge , John C . (Re t ired , Spec ia l ly
Ass igned)
Raker , Irma S . (Re t ired , Spec ia l ly
Assigned)
Cathell , Dale R . (Retired , Specially
Assigned)

JJ .
__________________________________________

Opinion by Eldridge , J .
Be ll , C .J . , Raker and Ca the ll , JJ . , dissen t .
_________________________________________

Filed: January 21 , 2011

Th is is an ac t ion under the jud ic ia l rev iew sec t ion of the Mary land

Admin is tra t ive Procedure Ac t1 to rev iew a repr imand and f ine , imposed on a l icensed

phys ic ian by the Mary land S ta te Board of Phys ic ians , based upon the Board’s

conc lus ion tha t the phys ic ian had fa i led to coopera te w i th a lawfu l inves t iga t ion

conduc ted by the Board .2 The bas is for the Board’s conc lus ion was the fa i lure by the

phys ic ian , responden t Dr . Haro ld I . E is t , to obey , t ime ly , a subpoena for the produc t ion

of cer ta in pa t ien ts’ med ica l records in h is possess ion . The C ircu i t Cour t for

Mon tgomery Coun ty reversed the Board’s dec is ion , and the Cour t of Spec ia l Appea ls

aff irmed the judgmen t of the C ircu i t Cour t . The in termed ia te appe l la te cour t he ld tha t

the Board was no t en t i t led to the records and tha t , therefore , Dr . E is t d id no t fa i l to

coopera te w i th a lawfu l inves t iga t ion .

We sha l l ho ld tha t , because ne i ther Dr . E is t nor the pa t ien ts took any appropr ia te

ac t ion to cha l lenge the subpoena , such as f i l ing in the C ircu i t Cour t a mot ion to quash

or a mot ion for a pro tec t ive order , as requ ired by the app l icab le s ta tu tes , and because

Dr . E is t c lear ly fa i led to comply w i th the subpoena in a t ime ly manner , the Board’s

dec is ion was lega l ly correc t . Consequen t ly , we sha l l reverse the judgmen ts of bo th

cour ts be low and d irec t tha t the Board’s dec is ion be aff irmed .

1 Maryland Code (1984, 2009 Repl. Vol.), § 10-222 of the State Government Article.

2 At the time the initial complaint was received, the Maryland State Board of Physicians was
named the Board of Physicians Quality Assurance. Pursuant to Ch. 252 of the Acts of 2003,
effective July 1, 2003, during the pendency of this case, the name of the agency was changed to the
Maryland State Board of Physicians. The agency will usually be referred to as “the Board” in this
opinion.

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I .

In a le t ter da ted February 19 , 2001 , the pe t i t ioner , the Mary land S ta te Board of

Phys ic ians , rece ived a comp la in t from the es tranged husband of a pa t ien t of

Dr . Haro ld I . E is t . Dr . E is t , a psych ia tr is t l icensed to prac t ice med ic ine in Mary land ,

had prac t iced for th ir ty-seven years a t the t ime the compla in t was f i led . The compla in t

a l leged tha t Dr . E is t had “over-med ica ted my w ife and my sons” and de ta i led an

inc iden t in wh ich Dr . E is t had “s tar ted ca l l ing [ the compla inan t] a l iar and ye l l ing a t

[ the compla inan t].” The le t ter fur ther a l leged tha t Dr . E is t had “ los t any ab i l i ty to

prac t ice med ic ine in a tru ly ob jec t ive and profess iona l manner .”

On March 15 , 2001 , Haro ld Rose , a “Comp l iance Ana lys t” for the Board , wro te

to Dr . E is t , no t ify ing h im tha t a compla in t had been f i led aga ins t h im and a t tach ing a

copy of the compla in t . The Board reques ted a wr i t ten response w i th in 21 days , and

asked Dr . E is t to ind ica te whe ther h is response cou ld be re leased to the compla inan t .

A long w i th the le t ter , the Board issued a subpoena duces tecum wh ich s ta ted :

“Pursuan t to Sec t ions 14-206(a) and 14-401(g) of the Hea l th
Occupa t ion[s] Ar t ic le of the Anno ta ted Code of Mary land , YOU
ARE HEREBY SUMMONED and COMMANDED by the BOARD
OF PHYSICIAN QUALITY ASSURANCE OF MARYLAND to
de l iver IMMEDIATELY UPON SERVICE OF PROCESS a copy
of all med ical records of patients [names the wife and two sons of
the compla inan t] trea ted a t your fac i l i ty ; wh ich ma ter ia ls are in
your custody , possession or control .

“And by v ir tue of the au thor i ty of the sa id BOARD OF
PHYSICIAN QUALITY ASSURANCE , such informa t ion is
thereby made re turnab le within 10 (ten) days . . . .

“FOR FAILURE TO OBEY th is summons on pe t i t ion of the

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Board a cour t of compe ten t jur isd ic t ion may pun ish the person as
for con temp t of cour t , pursuan t to the prov is ions of the Hea l th
Occupa t ions Ar t ic le of the Anno ta ted Code of Mary land Sec t ion
14-206(b) .”

The le t ter to Dr . E is t from the Board and the subpoena were da ted March 15 , 2001 , bu t

they were de l ivered to the wrong address . The same le t ter and subpoena were

d ispa tched aga in by the Board on Apr i l 18 , 2001 , and were rece ived by Dr . E is t on

Apr i l 19 , 2001 . The Board agreed tha t the subpoenaed records were due ten days from

Apr i l 19 , 2001 , the da te when Dr . E is t ac tua l ly rece ived the subpoena .

Dr . E is t responded to the Board on Apr i l 20 , 2001 . H is le t ter informed the Board

tha t the comp la inan t was no t one of h is pa t ien ts , and tha t Dr . E is t had trea ted on ly the

compla inan t’s “es tranged w ife and , a t t imes , three of the ir ch i ldren .” Dr . E is t reasoned

that the complaint might have been motivated by the compla inan t’s “b i t ter ly con tes ted”

d ivorce l i t iga t ion w i th Dr . E is t’s pa t ien t , in wh ich Dr . E is t had been ca l led as a w i tness

“concern ing the ch i ldren of the marr iage .” Dr . E is t s ta ted to the Board as fo l lows :

“I am no t cer ta in wha t I w i l l be asked to respond to in the
course of your inves t iga t ion , nor wha t informa t ion rece ived in
conf idence from [my pa t ien ts] migh t come in to the record . I t is my
be l ief tha t they are requ ired to be no t if ied of th is ma t ter and any
reques t for informa t ion wh ich you migh t make of me concern ing
the ir trea tmen t and the ir conf iden t ia l commun ica t ions to me . I w i l l
be pleased to cooperate fully with any investigator with the consent
of the pa t ien ts ( inc lud ing any guard ian necessary to wa ive the
ch i ldren’s pr iv i lege) , or , if the pa t ien ts ob jec t and take s teps to
pro tec t the ir commun ica t ions w i th any appropr ia te dec is ion
overru l ing the ir ob jec t ions and requ ir ing tha t I furn ish the
informa t ion . A t th is po in t , they have no t f i led a compla in t nor in
any o ther way consen ted to re lease of informa t ion to BPQA so far
as I know .”

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On May 1 , 2001 , Dr . E is t forwarded a copy of the subpoena to h is pa t ien t , the

w ife of the comp la inan t , and reques ted tha t she inform h im “as soon as you can ,

whe ther you , or your a t torney , are tak ing any ac t ion to oppose my compl iance w i th th is

subpoena .” Dr . E is t conc luded h is le t ter by s ta t ing tha t , if he had no t heard from her

“w i th in one week , I w i l l forward the records to the Board .” Dr . E is t sen t a copy of th is

le t ter to Mr . Rose of the Board .

On May 4 , 2001 , Dr . E is t rece ived a copy of a repor t f i led by the ch i ldren’s

cour t-appo in ted a t torney . The repor t , f i led w i th the C ircu i t Cour t for Mon tgomery

Coun ty , s ta ted tha t the cour t-appo in ted a t torney refused to wa ive the “pr iv i lege” tha t

ex is ted be tween the ch i ldren of the comp la inan t and Dr . E is t , or “any men ta l hea l th

profess iona l .”3 Dr . E is t sen t th is repor t to the Board , a long w i th a le t ter in wh ich he se t

for th a transcr ip t ion of a te lephone message wh ich he had rece ived from h is pa t ien t , the

w ife of the compla inan t . In her message , h is pa t ien t s ta ted : “I refuse to a l low you to

re lease my med ica l record to the med ica l board .” Add i t iona l ly , h is pa t ien t’s a t torney

sen t a le t ter , da ted May 14 , 2001 , to Mr . Rose of the Board , no t ing tha t the pa t ien t

“does no t wa ive her pr iv i lege w i th Dr . E is t and has asked tha t he no t re lease her records

in response to the reques t .” The le t ter wen t on to s ta te tha t the pa t ien t wan ted the

Board to know tha t “she has abso lu te ly no compla in ts abou t Dr . E is t” and tha t “he has

The report failed to indicate precisely the privilege which the attorney refused to waive.
3
Presumably, the attorney was referring to the statutory psychiatrist-patient privilege set forth in
Maryland Code (1974, 2006 Repl. Vol., 2010 Supp.), § 9-109(b) of the Courts and Judicial
Proceedings Article.

a lways conduc ted h imse lf in a profess iona l manner .”

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The Board responded to Dr . E is t in a le t ter da ted June 27 , 2001 , from Frank

Bubczyk , ano ther “Comp l iance Ana lys t” w i th the Board . The le t ter informed Dr . E is t

tha t , based on the comp la in t rece ived , the Board had opened an inves t iga t ion . The

le t ter a lso inc luded ano ther reques t for the med ica l records covered by the subpoena .

Moreover , the le t ter informed Dr . E is t tha t, “[f]or your informa t ion , rece ip t of those

med ica l records is no t con t ingen t on the consen t of the pa t ien t /s .” The le t ter cau t ioned

Dr . E is t tha t fa i lure to produce the reques ted records “may be grounds for d isc ip l inary

ac t ion pursuan t to Md . Code Ann . Hea l th Occ . § 14-404 (a)(33) for fa i l[ure] to

coopera te w i th a lawfu l inves t iga t ion conduc ted by the Board .”

On Ju ly 11 , 2001 , Dr . E is t’s a t torney sen t to the Board a le t ter s ta t ing tha t

“Dr . E is t is under the impress ion tha t he does no t have h is pa t ien ts’
permiss ion to revea l the ir conf idences , and tha t no cour t has
we ighed the necess i ty for v io la t ing the ir conf idences based upon
the unsuppor ted a l lega t ions of someone w i th a c lear conf l ic t of
in teres t , and a des ire to v io la te those conf idences .”

The le t ter re i tera ted tha t “Dr . E is t does no t d ispu te the au thor i ty of the [Board] to

examine these ma t ters ,” and if a cour t agreed tha t the records cou ld be examined ,

“Dr . E is t cer ta in ly w i l l comply .” The le t ter a lso d iscussed the pa t ien ts’ pr ivacy

interes ts .

In a subsequen t le t ter to the Board da ted Ju ly 16 , 2001 , Dr . E is t de ta i led h is

re la t ionsh ip w i th the comp la inan t , informed the Board tha t the compla inan t “has never

been my pa t ien t ,” and s ta ted tha t the compla inan t “ is e i ther confused or ou tr igh t

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d ishones t in h is asser t ions .” Dr . E is t a lso submi t ted to the Board supp lemen ta l

documen ts concern ing h is re la t ionsh ip w i th the compla inan t and a le t ter from the

compla inan t’s w ife pra is ing the care tha t she and her ch i ldren had rece ived from

Dr . Eis t .

During the en t ire process , ne ither Dr . Eist nor his patients instituted any judicia l

proceedings to quash the subpoena issued by the Board or to obtain a protective order .

On December 19 , 2001 , the Board voted to charge Dr . Eist with a violation under

Mary land Code (1981 , 2009 Rep l . Vo l .) , § 14-404(a)(33) of the Hea l th Occupa t ions

Ar t ic le . Tha t prov is ion au thor izes the Board to

“repr imand any l icensee , p lace any l icensee on proba t ion , or
suspend or revoke a l icense if the l icensee : * * * (33) Fa i ls to
coopera te w i th a lawfu l inves t iga t ion conduc ted by the Board
. . . .”4

The charge was off ic ia l ly issued by the Board on February 4 , 2002 . The February 4 ,

2002 , documen t s ta ted tha t a “reso lu t ion conference” had been schedu led for Apr i l 3 ,

2002 , a t the Board’s Off ice , and a “prehear ing conference in th is ma t ter” had been

schedu led for June 6 , 2002 , in the Off ice of Admin is tra t ive Hear ings .

Af ter the Board had forma l ly ins t i tu ted charges aga ins t Dr . E is t , he aga in wro te

to h is pa t ien t’s a t torney informing the a t torney tha t

4 While the Health Occupations Article, as well as the Health-General Article, of the Code have
undergone some changes between the year 2001 and the present, none of the provisions applicable
to this case and cited in this opinion have been changed in substance. Consequently, we shall in this
opinion cite the current provisions of both Articles.

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“to try and bring this ma tter to a close , we are hereby giving you
and your c l ien t no t ice tha t un less we hear from you w i th in one
week tha t (1) as a resu l t of your effor ts , the Board has ceased to ask
for these documen ts ; (2) you have ob ta ined a cour t order en jo in ing
Dr . E is t from send ing the documen ts to the [Board]; or (3) an
ac t ion has been
f i led seek ing such an
in junc t ion , bu t
no tw i ths tand ing good fa i th effor ts , i t has no t been comple ted ,
Dr . E is t in tends to make your c l ien t’s en t ire f i le ava i lab le to the
[Board] .”

A s imi lar message was g iven to the represen ta t ive of the ch i ldren . None of the par t ies

responded to these reques ts .

Dr . E is t turned over the pa t ien ts’ records to the Board on March 20 , 2002 .

Dr . E is t’s a t torney wro te to bo th the Ass is tan t A t torney Genera l for the Depar tmen t of

Hea l th and Men ta l Hyg iene and the “Comp l iance Ana lys t” for the Board , s ta t ing tha t ,

in turn ing over the records , “we do no t concede tha t Dr . E is t in any way refused in the

pas t to coopera te w i th an ‘ inves t iga t ion .’”

On Oc tobe r 31 , 2002 , the Boa rd fo rwa rded the f i les , inc lud ing the o r ig ina l

comp la in t and the pa t ien t records produced by Dr . E is t , to the Mary land Psych ia tr ic

Soc ie ty’s Peer Rev iew Commi t tee . Dr . E is t appeared before the Peer Rev iew

Commi t tee on Augus t 26 , 2003 . The repor t of the Mary land Psych ia tr ic Soc ie ty Peer

Rev iew Commi t tee , da ted November 30 , 2003 , u l t ima te ly de termined tha t Dr . E is t had

“prescr ibed med ica t ions appropr ia te ly” and tha t there was “no ev idence tha t he over

prescribed any medication or induced psychotic symptoms.” The Committee also found

tha t Dr . E is t “behaved in a profess iona l manner” when interac ting with the compla inant

and tha t there had been “no breach in any app l icab le s tandard of care in h is trea tmen t

or conduc t w i th the pa t ien ts .”

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On December 1 , 2003 , the Board rece ived the repor t of the Peer Rev iew

Commi t tee , and , on February 5 , 2004 , the Board dec ided no t to charge Dr . E is t based

on the compla in t of the pa t ien t’s es tranged husband . The husband’s compla in t was

d ismissed . Never the less , the Board po in ted ou t tha t the ma t ter “of fa i l ing to coopera te

w i th a lawfu l inves t iga t ion conduc ted by the Board . . . rema ins open .”

Wh i le the above-rev iewed even ts were tak ing p lace , the Board’s charge , tha t Dr .

E is t fa i led to coopera te w i th a lawfu l inves t iga t ion by the Board , was be ing processed

by the Mary land Off ice of Admin is tra t ive Hear ings . Numerous mot ions , memoranda

and exh ib i ts were f i led w i th tha t Off ice , by bo th s ides , be tween February 4 , 2002 , and

Ju ly 15 , 2002 . A hear ing took p lace before an Admin is tra t ive Law Judge (ALJ) of the

Off ice of Admin is tra t ive Hear ings on Ju ly 15 , 2002 .

Bo th s ides agreed tha t there were no d ispu tes as to the ma ter ia l fac ts , and bo th

s ides f i led mo t ions for summary dec is ion pursuan t to COMAR 28 .02 .01 .12D .5 On

COMAR 28.02.01.12D provides as follows:

“D. Motion for Summary Decision.

“(1) Any party may file a motion for summary decision on all or part of an action,
at any time, on the ground that there is no genuine dispute as to any material fact and
that the party is entitled to judgment as a matter of law. Motions for summary
decision shall be supported by affidavits.

“(2) The response to a motion for summary decision shall identify the material facts
that are disputed.

“(3) An affidavit supporting or opposing a motion for summary decision shall be
made upon personal knowledge, shall set forth the facts that would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
(continued…)

Augus t 14 , 2002 , the ALJ issued a recommended dec is ion in favor of Dr . E is t . The ALJ

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in i t ia l ly he ld tha t

“ the Board’s r igh t to ob ta in the men ta l hea l th records of pa t ien ts or
conf iden t ia l informa t ion regard ing the trea tmen t of a men ta l hea l th
pa t ien t is no t abso lu te where the pa t ien t ob jec ts to the d isc losure of
tha t informa t ion . Any reques t for a subpoena for men ta l hea l th
records where an ob jec t ion has been ra ised by the ho lder of tha t
pr iv i lege shou ld be sub jec t to the scru t iny of an independen t
fac tf inder .”

The ALJ ind ica ted tha t the “ independen t fac tf inder” w i th regard to the pa t ien t’s

asser t ion of pr iv i lege shou ld be a judge , tha t the Board had the ob l iga t ion of seek ing

judicial enforcement of the subpoena , and that “the Board’s failure to seek enforcement

of the subpoena does no t p lace the onus of seek ing jud ic ia l in terven t ion on the

Responden t [Dr . E is t] .” The ALJ conc luded “ tha t the Responden t fo l lowed the on ly

e th ica l course of ac t ion ava i lab le to h im under the c ircums tances” and tha t the

“Responden t d id no t fa i l to coopera te ; ra ther he a t tempted to coopera te wh i le

preserv ing the in tegr i ty of the conf iden t ial re la t ionsh ip w i th h is pa t ien ts .” The ALJ

gran ted the Responden t’s Mo t ion for Summary Dec is ion , den ied the Board’s Mo t ion

for Summary Dec is ion , and recommended tha t the charges be d ismissed .

The “Admin is tra t ive Prosecu tor” f i led w i th the Board excep t ions to the ALJ’s

(…continued)
matters stated in the affidavit.

“(4) The judge may issue a proposed or final decision in favor of or against the
moving party if the motion and response show that there is no genuine dispute as to
any material fact and that the party in whose favor judgment is entered is entitled to
judgment as a matter of law.”

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recommended dec is ion . Af ter a hear ing before the Board , the Board on January 28 ,

2003 , re jec ted the ALJ’s recommended dec is ion and found tha t Dr . E is t had fa i led to

coopera te w i th a lawfu l inves t iga t ion . In a four teen page op in ion , the Board rev iewed

the und ispu ted fac ts as we l l as the app l icab le law . The Board po in ted ou t tha t the p la in

word ing of the app l icab le s ta tu te requ ires a hea l th care prov ider , in accordance w i th a

subpoena , to d isc lose to the Board a par t icu lar pa t ien t’s med ica l records , regard less of

the pa t ien t’s consen t , for purpose of an inves t iga t ion in to the a l leged improper prac t ice

of a hea l th profess iona l . See Mary land Code (2000 , 2009 Rep l . Vo l .) , §§ 4-306 and 4-

307(k)(1)(v)(1) of the Hea l th-Genera l Ar t ic le . The Board recogn ized the ro le of a

cour t , in ru l ing upon a mo t ion to quash or a motion for a protective order , to weigh a

pat ient’s const itu tional privacy interests in the records against the Board’s need for the

records . The Board , however , d isagreed w i th the ALJ’s v iew tha t “ the Board mus t

pe t i t ion a cour t in each and every ins tance” a subpoena is issued . Accord ing to the

Board , the “par ty who w ishes to presen t a cons t i tu t iona l c la im has the burden of

presen t ing i t to a cour t .”6 The Board issued a f ina l order repr imand ing Dr . E is t and

impos ing a $5 ,000 f ine .

Dr . E is t f i led in the C ircu i t Cour t for Mon tgomery Coun ty an ac t ion for jud ic ia l

rev iew of the Board’s dec is ion repr imand ing h im and impos ing a $5 ,000 f ine .7 Af ter

The opinion pointed out that the Board’s Annual Report for the year 2000 lists the number of
6
investigations at 1,252 for that year.

7 As earlier noted, Dr. Eist’s action for judicial review was pursuant to the judicial review section
of the Maryland Administrative Procedure Act, Maryland Code (1984, 2009 Rep. Vol.), § 10-222
of the State Government Article. That section provides in relevant part as follows:

(continued…)

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hear ing argumen ts from the par t ies , the C ircu i t Cour t issued an ora l ru l ing in wh ich the

cour t de termined tha t , a l though the Board was en t i t led to sanc t ion Dr . E is t , the Board

had made an error of law . The C ircu i t Cour t s ta ted tha t i t agreed w i th the Board tha t ,

“[w]hen dealing with a party , [the statu te] does no t requ ire the Board to seek

in terven t ion of the cour t before the subpoena can be enforced” and tha t “ the par ty fa i ls

to respond to the subpoena a t i ts own r isk if they fa i l to f i le a mot ion to quash and /or

a mot ion for a pro tec t ive order .”

The Circu it Cour t went on to point out tha t “a pa t ien t’s r igh t to pr ivacy” may be

“ou twe ighed by a board’s need for informa t ion when conduc t ing a lawfu l inves t iga t ion

under i ts s ta tu tory au thor i ty .” The cour t con t inued :

(…continued)
“§ 10-222 Judicial review.
“(a) Review of final decision. – (1) Except as provided in subsection (b) of
this section, a party who is aggrieved by the final decision in a contested case is
entitled to judicial review of the decision as provided in this section.
(2) An agency, including an agency that has delegated a contested
case to the Office, is entitled to judicial review of a decision as provided in this
section if the agency was a party before the agency or the Office.

***

“(h) Decision. – In a proceeding under this section, the court may:
(1) remand the case for further proceedings;
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of the
petitioner may have been prejudiced because a finding, conclusion, or
decision:

(i) is unconstitutional;
(ii) exceeds the statutory authority or jurisdiction of
the final decision maker;
(iii) results from an unlawful procedure;
(iv) is affected by any other error of law;
(v) is unsupported by competent, material, and
substantial evidence in light of the entire record as submitted; or
(vi) is arbitrary or capricious.”

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“The doc tor has the r igh t under the s ta tu te . . . to f i le a mot ion to
quash or a mot ion for a pro tec t ive order , as does the par ty . Fur ther ,
the doc tor . . . wou ld have the r igh t to do ne i ther , bu t then the
doc tor accep ts the r isk tha t if i t is la ter de termined tha t the
subpoena was lawfu l . . . of perhaps be ing sanc t ioned for h is fa i lure
to turn over those records .”

Turn ing to the app l icab le s ta tu te ,8 the C ircu i t Cour t acknow ledged tha t

“ the s ta tu te imposes the burden of asser t ing tha t [pr ivacy] r igh t on
the doc tor or the pa t ien t . The s ta tu te does no t requ ire the Board ,
even when faced w i th an ob jec t ion , to go to the cour t and seek
in terven t ion of the cour t to enforce the subpoena . Ra ther , the
s ta tu te requ ires tha t the par ty who seeks to asser t the r igh t of
pr ivacy app ly to the cour t and seek the in terven t ion of the cour t .
And tha t the s ta tu te is no t cons t i tu t iona l ly inf irm by v ir tue of
p lac ing tha t ob l iga t ion on the par ty asser t ing the r igh t , and because
the s ta tu te never the less ensures to the par ty w i th the pr ivacy
in teres t an ab i l i ty to seek the in terven t ion of the cour t to pro tec t
tha t r igh t , tha t the s ta tu te is no t cons t i tu t iona l ly inf irm.”

Never the less , the C ircu i t Cour t found tha t an “error of law” was commi t ted in

the admin is tra t ive proceed ings . The cour t found tha t , because the ALJ had dec ided the

case on cross mot ions for summary dec is ions , the record had no t been suff ic ien t ly

deve loped to dec ide whe ther there wou ld be a v io la t ion of the s ta tu te

“ if a doc tor fa i ls to coopera te because of . . . a good fa i th
and reasonab le be l ief tha t [he] had the r igh t to w i thho ld the
documen ts , par t icu lar ly upon the adv ice of counse l , as i t
appears tha t the doc tor ac ted in th is case .”9

8 Maryland Code (2000, 2009 Repl. Vol.), § 4-307(k)(6) of the Health-General Article.

In this connection, see Giant of Md. v. State’s Attorney, 274 Md. 158, 179, 334 A.2d 107, 119
(continued…)

-13-

The cour t remanded the case to the Board for the Board to dec ide whe ther Dr . E is t

ac ted “reasonab ly and in good fa i th .” The C ircu i t Cour t a lso s ta ted :

“If , upon an ana lys is by the admin is tra t ive law judge , they found
in th is par t icu lar ins tance tha t * * * the Board’s in teres t d id no t
ou twe igh the pr ivacy in teres ts of the ind iv idua l pa t ien ts * * *
[ then ,] in th is ins tance , those subpoenas were no t lawfu l . . . . In
which case , then [Dr . Eist] would not have been in violation of [the
s ta tu te] because he d idn’ t fa i l to respond to a lawfu l subpoena .”

On remand , the Board aga in referred the case to an ALJ for an ev iden t iary

hear ing on the issues se t for th in the C ircu i t Cour t’s remand order . Af ter hear ing from

several witnesses and developing an extensive record , the ALJ again decided the ma tter

in Dr . E is t’s favor . The ALJ de termined tha t the subpoena was no t lawfu l ly issued

because the Board had fa i led to correc t ly we igh the pa t ien ts’ pr ivacy r igh ts aga ins t the

Board’s in teres t in ob ta in ing the ir records . The ALJ a lso found tha t Dr . E is t had ac ted

in good fa i th because he re l ied upon the adv ice of counse l . Based on these

de termina t ions , the ALJ conc luded tha t Dr . E is t had no t v io la ted § 14-404(a)(33) of the

Hea l th Occupa t ions Ar t ic le . The ALJ’s Proposed Dec is ion recommended tha t the

charges aga ins t Dr . E is t be d ismissed . The Admin is tra t ive Prosecu tor aga in f i led

excep t ions to the Proposed Dec is ion of the ALJ . Af ter a hear ing , the Board dec l ined to

adop t the Proposed Dec is ion and ins tead issued a F ina l Dec is ion sanc t ion ing Dr . E is t

(…continued)
9
(1975) (“‘[T]he fact that failure to comply with the [order] . . . was based on the advice of counsel
is generally held to be no justification,’” quoting Weaver v. State, 244 Md. 640, 644, 224 A.2d 684,
687 (1966)).

w i th a repr imand and a f ine of $5 ,000 .

-14-

The presen t ac t ion for jud ic ia l rev iew was then f i led in the C ircu i t Cour t . The

cour t , in a br ief order , reversed the Board’s dec is ion and ordered the Board to d ismiss

the charges aga ins t Dr . E is t . The Board appea led to the Cour t of Spec ia l Appea ls , and

tha t cour t , in an ex tens ive op in ion , aff irmed the judgmen t of the tr ia l cour t . Board o f

Phys ic ians v . E is t , 176 Md . App . 82 , 932 A .2d 783 (2007) . The Cour t of Spec ia l

Appea ls , l ike the ALJ bu t con trary to the f irs t c ircu i t cour t dec is ion , he ld tha t “ the

burden [was] on the Board to obtain a ruling from a court on the [patients’] privacy

issue” w i th respec t to the subpoenaed records . Board of Physicians v . Eist , supra , 176

Md . App . at 135 , 932 A .2d at 814 . The intermediate appe l la te cour t fur ther he ld tha t ,

un t i l the Board does ob ta in a jud ic ia l ru l ing (176 Md . App . a t 134 , 932 A .2d a t 814) ,

“so long as a doc tor is ac t ing in good fa i th in w i thho ld ing the
subpoenaed records un t i l the pa t ien t w i thdraws h is pr ivacy r igh t
ob jec t ion or a governmen ta l in teres t /pr ivacy in teres t we igh ing
assessmen t is made by a cour t , the phys ic ian is no t fa i l ing to
coopera te w i th a lawfu l inves t iga t ion of the Board .”

A t o ther p laces in i ts op in ion , however , the Cour t of Spec ia l Appea ls seemed to

v iew the “governmen ta l in teres t /pr ivacy in teres t” issue as one wh ich cou ld proper ly be

reso lved in th is jud ic ia l rev iew ac t ion , and the in termed ia te appe l la te cour t he ld (176

Md . a t 120 , 932 A .2d at 805-806):

“[T]he agency record leads us to conc lude that , when the Subpoena
was issued , and un til the patients’ withdrew their privacy right
assertion , the Board’s governmental interest in obtaining Dr . Eist’s
psych ia tr ic records of [the] Pa t ien ts . . . was no t a compe l l ing

-15-

in teres t tha t ou twe ighed the pa t ien ts’ pr ivacy in teres ts in those
records .”

In the f ina l paragraph of i ts op in ion , the Cour t of Spec ia l Appea ls conc luded as fo l lows

(176 Md . a t 135 , 932 A .2d a t 814-815) :

“On the fac ts found by the Board , as supported by substantia l
ev idence in the agency record , the Board’s in teres t in ob ta in ing the
pa t ien ts’ psych ia tr ic records to inves t iga te the s tandard of care
a l lega t ion leve led by Mr . S aga ins t Dr . E is t d id no t ou twe igh the
pa t ien ts’ pr ivacy in teres ts in those h igh ly persona l records . Had
e i ther the Board , Dr . E is t , or the pa t ien ts sough t cour t in terven t ion
in the per iod of t ime soon af ter the Subpoena was issued , the
proper ru l ing by the cour t wou ld have been tha t the Board was no t
en t i t led to the records in ques t ion because d isc los ing them wou ld
violate the patients’ constitutiona l rights. Accordingly, Dr. Eist did
no t , as a ma t ter of law , fa i l to coopera te w i th a lawfu l inves t iga t ion
of the Board by no t furn ish ing the pa t ien ts’ psych ia tr ic records to
the Board , in response to the Subpoena , un t i l the pa t ien ts w i thdrew
the ir pr ivacy ob jec t ion .”

The Board f i led in th is Cour t a pe t i t ion for a wr i t of cer t iorar i wh ich was gran ted .

Board o f Phys ic ians v . E is t, 402 Md . 355 , 936 A .2d 852 (2007) . Dr . Eist did not file

a cross-pe t i t ion for a wr i t of cer t iorar i . The Board’s pe t i t ion presen ted the fo l low ing

two ques t ions (c i ta t ions to the Mary land Code omi t ted) :

“1 . Where , as par t of i ts inves t iga t ion of a comp la in t
a l leg ing tha t a phys ic ian’s psych ia tr ic trea tmen t was
endanger ing pa t ien ts , a profess iona l
l icens ing and
d isc ip l inary board issued a subpoena to the phys ic ian for
pa t ien ts’ men ta l hea l th trea tmen t records and ne i ther the
phys ic ian nor the pa t ien ts moved to quash the subpoena or
to ob ta in a pro tec t ive order on cons t i tu t iona l or o ther
grounds , d id the phys ic ian’s refusa l to d isc lose the
subpoenaed records cons t i tu te a fa i lure to coopera te w i th a

-16-

lawfu l inves t iga t ion conduc ted by the Board under the terms
of the Med ica l Prac t ice Ac t . . . .”

“2 . D id the Cour t of Spec ia l Appea ls commi t revers ib le
error by revers ing an admin is tra t ive agency dec is ion
suppor ted by subs tan t ia l ev idence , fa i l ing to defer to the
agency’s au thor i ty as fac t f inder to draw inferences from the
evidence , substitu ting its judgment for the agency’s
expertise , and imposing upon the agency novel legal burdens
as obs tac les to the exerc ise of i ts s ta tu tory au thor i ty to
inves t iga te and d isc ip l ine phys ic ians?”

We sha l l answer the f irs t ques t ion in the aff irma t ive . Therefore , we need no t , and sha l l

no t , reach the second ques t ion .

II .

A ma jor premise underlying the recommended decisions of the ALJ and the

dec is ion of the Cour t of Spec ia l Appea ls is tha t the Board bears the burden of

ins t i tu t ing a jud ic ia l proceed ing to enforce the subpoena . A t such proceed ing , a cour t

wou ld we igh the pa t ien ts’ pr ivacy in teres ts in the subpoenaed records aga ins t the

Board’s need for those records . The Cour t of Spec ia l Appea ls he ld tha t , in the absence

of a jud ic ia l proceed ing to enforce the subpoena , Dr . E is t , ac t ing in good fa i th , cou ld

no t be gu i l ty of fa i l ing to coopera te w i th the Board’s inves t iga t ion . The in termed ia te

appe l la te cour t a lso seemed to ho ld tha t the issue of we igh ing the Board’s need for the

records aga ins t the pa t ien ts’ pr ivacy r igh ts cou ld proper ly be reached in the presen t

admin is tra t ive / jud ic ia l rev iew ac t ion , and tha t , on th is record , the pa t ien ts’ pr ivacy

r igh ts ou twe ighed the Board’s need . Consequen t ly , accord ing to the Cour t of Spec ia l

Appea ls , Dr . E is t d id no t fa i l to coopera te by refus ing to turn over the records .

-17-

The premise , tha t the Board had the burden of ins t i tu t ing a jud ic ia l ac t ion to

enforce the subpoena , is incons is ten t w i th the app l icab le s ta tu tes and is no t suppor ted

by the Mary land cases re l ied on by the ALJ and the Cour t of Spec ia l Appea ls .

Moreover , the issue of we igh ing the pa t ien ts’ pr ivacy r igh ts aga ins t the Board’s need

for the records shou ld have been reso lved in an ac t ion by the pa t ien ts or Dr . E is t to

quash the subpoena or for a pro tec t ive order . I t was no t an appropr ia te issue in the

presen t admin is tra t ive / jud ic ia l rev iew ac t ion . In th is ac t ion , the und ispu ted ev idence

show ing Dr . E is t’s de l ibera te refusa l to comply w i th the subpoena in a t ime ly manner

c lear ly suppor ted the Board’s dec is ion .

Turn ing f irs t to the app l icab le s ta tu tes , §§14-401 e t seq . of the Hea l th

Occupa t ions Ar t ic le of the Code comprehens ive ly au thor ize the Board to take

d isc ip l inary ac t ion aga ins t hea l th care prov iders , to inves t iga te a l lega t ions of conduc t

warran t ing d isc ip l inary ac t ion , to ho ld hear ings , e tc . Sec t ion 14-401( i) prov ides tha t

the “Board may issue subpoenas . . . in connec t ion w i th any inves t iga t ion . . . .” Sec t ion

14-206(a) of the Hea l th Occupa t ions Ar t ic le re i tera tes tha t “ the Board may issue

subpoenas . . . in connec t ion w i th any inves t iga t ion under th is t i t le . . . .” As ear l ier

no ted , supra n . 4 , §14-404(a)(33) of the Hea l th Occupa t ions Ar t ic le au thor izes the

Board to “repr imand any l icensee , p lace any l icensee on proba t ion , or suspend or

revoke a l icense if the l icensee : * * * (33) Fa i ls to coopera te w i th a lawfu l inves t iga t ion

conduc ted by the Board .” Sec t ion 14-405 .1 of the Hea l th Occupa t ions Ar t ic le prov ides

tha t , if the Board f inds grounds to suspend or revoke a phys ic ian’s l icense , or to

-18-

repr imand a phys ic ian , the Board may a lso impose a f ine upon the phys ic ian .10

The per t inen t s ta tu tory prov is ions govern ing the conf iden t ia l i ty and d isc losure

by hea l th care prov iders of med ica l records , inc lud ing men ta l hea l th med ica l records ,

are se t for th in Mary land Code (2000 , 2009 Rep l . Vo l .) , T i t le 4 , Sub t i t le 3 , §§ 4-301

through 4-309 of the Hea l th-Genera l Ar t ic le . The bas ic sec t ion dea l ing w i th

inves t iga t ions and the d isc losures of med ica l records “w i thou t [the] au thor iza t ion of

[the] person in in teres t” is § 4-306 . Tha t sec t ion prov ides in re levan t par t as fo l lows

(emphas is added) :

“(b) . . . A hea l th care prov ider shall disclose a med ica l record
wi thout the au thor ization of a person in interest.”

* * *

“(2) Sub jec t to the add i t iona l l imi ta t ions for a med ica l record
deve loped pr imar i ly in connec t ion w i th the prov is ion of men ta l
hea l th serv ices in § 4-307 of th is sub t i t le , to health professional
licens ing and d isciplinary boards , in accordance with a subpoena
for med ical records for the so le purpose of an inves t iga t ion
regard ing :

10 Section 14-405.1 states as follows:

“§ 14.4-05.1. Penalty instead of suspension or in addition to
suspension or revocation.

(a) Imposition of penalty. – If after a hearing under § 14-405
of this subtitle the Board finds that there are grounds under § 14-404
of this subtitle to suspend or revoke a license to practice medicine or
osteopathy, or to reprimand a licensed physician or osteopath, the
Board may impose a fine subject to the Board’s regulations:
(1) Instead of suspending the license; or
(2) In addition to suspending or revoking the license
or reprimanding the licensee.
(b) Disposition of funds. – The Board shall pay any fines
collected under this section into the General Fund.”

-19-

( i) L icensure , cer t if ica t ion , or d isc ip l ine of a hea l th
profess iona l ; or
( i i) The improper prac t ice o f a hea l th pro fess ion . . . .”

* * *

Sec tion 4-306(b)(6) contains , inter alia , statutory forms of notice to accompany

subpoenas for med ical records , and each mandates in pertinent part as follows (ita lics

supplied) :

“P lease examine these papers carefu l ly . IF YOU HAVE ANY
OBJECTION TO THE PRODUCTION OF THESE DOCUMENTS,
YOU MUST FILE A MOTION FOR A PROTECTIVE ORDER OR
A MOTION TO QUASH THE SUBPOENA ISSUED FOR THESE
DOCUMENTS UNDER MARYLAND RULES 2-403 AND 2-510
NO LATER THAN FIFTEEN (15) DAYS FROM THE DATE
THIS NOTICE IS MAILED . For examp le , a pro tec t ive order may
be gran ted if the records are no t re levan t to the issues in th is case ,
the reques t undu ly invades your pr ivacy , or causes you spec if ic
harm.”

The Genera l Assemb ly , by us ing the word “mus t ,” expressed the in ten t tha t a mot ion

to quash or a mot ion for a pro tec t ive order is the exc lus ive remedy for a rec ip ien t of the

subpoena who ob jec ts to the produc t ion of the records .

Sec t ion 4-307 , concern ing men ta l hea l th med ica l records , re i tera tes tha t , in

connec t ion w i th a Board inves t iga t ion , records mus t be prov ided to the Board

regard less of a pa t ien t’s au thor iza t ion , and tha t the appropr ia te procedure for we igh ing

a pa t ien t’s pr ivacy in teres ts aga ins t the Board’s need for the records is for the pa t ien t

or the hea l th care prov ider to f i le a cour t ac t ion to quash the subpoena or for a

pro tec t ive order . Sec t ion 4-307(k)(1)(v)(1) s ta tes :

-20-

“(1) A hea l th care prov ider sha l l d isc lose a med ica l record
w i thou t the au thor iza t ion of a person in in teres t :

* * *

“(v) In accordance w i th a subpoena for med ica l records on
spec if ic rec ip ien ts :
1 . To hea l th profess iona l l icens ing and d isc ip l inary
boards for the so le purpose of an inves t iga t ion regard ing l icensure ,
cer t if ica t ion , or d isc ip l ine of a hea l th profess iona l or the improper
prac t ice of a hea l th profess ion . . . .”

W i th respec t to a hea l th care prov ider’s or pa t ien t’s remedy , § 4-307(k)(6) s ta tes

(emphas is added) :

“(6) Th is subsec t ion may no t prec lude a hea l th care prov ider ,
a rec ip ien t , or person in in teres t from asser t ing in a motion to
quash or a mo tion for a protective order any constitutional right or
o ther legal authori ty in opposition to disclosure .”

Thus the statute grants standing to the health care provider , as well as others opposed

to disclosure , to ra ise the patient’s constitutional rights or other grounds for

nond isc losure , by f i l ing in cour t a mot ion to quash or a mot ion for a pro tec t ive order .

Consequen t ly , the above-rev iewed s ta tu tory prov is ions make i t c lear tha t , when

the Board is inves t iga t ing a compla in t aga ins t a hea l th care prov ider and subpoenas

cer ta in med ica l records in h is or her possess ion , the hea l th care prov ider is requ ired to

prov ide the med ica l records to the Board regard less of the pa t ien t’s au thor iza t ion .

Con trary to a cr i t ic ism expressed by the ALJ and the Cour t of Spec ia l Appea ls ,

however , ne i ther the s ta tu tes nor the Board trea t the hea l th care prov ider’s ob l iga t ion

-21-

to prov ide the records as an “abso lu te” one . If the pa t ien t and /or the hea l th care

prov ider be l ieve tha t there are grounds for no t produc ing the records , the pa t ien t or the

hea l th care prov ider “mus t” f i le a mot ion to quash the subpoena or a mo t ion for a

pro tec t ive order pursuan t to Mary land Ru les 2-403 or 2-510 . Th is is the rou te chosen

by the Genera l Assemb ly for the reso lu t ion of cons t i tu t iona l or o ther ob jec t ions to the

subpoena . The Genera l Assemb ly d id no t prov ide for an ac t ion by the Board to enforce

the subpoena .11 Furthermore , the General Assembly did not provide that the health care

prov ider cou ld refuse to comply w i th the subpoena , fa i l to f i le a mo t ion to quash or a

mot ion for a pro tec t ive order , and la ter , in a d isc ip l inary ac t ion , defend on the ground

tha t the pa t ien t’s pr ivacy r igh ts were infr inged by the subpoena .12

The Cour t of Spec ia l Appea ls and the ALJ , in we igh ing the pa t ien ts’ pr ivacy

11 When the General Assembly intends that a state agency issuing the subpoena should bring a
court action to enforce the subpoena when there is a failure to comply, the General Assembly knows
how to provide for such a procedure. See Maryland Code (1984, 2009 Repl. Vol.), §20-1010(c) of
the State Government Article, relating to the enforcement of subpoenas issued by the Maryland
Commission on Human Relations; Maryland Code (1975, 2007 Repl. Vol.), § 11-701(c) of the
Corporations and Associations Article, providing, inter alia, that when there is a “refusal to obey
a subpoena,” the Securities Commissioner may apply to a court for enforcement of the subpoena.

Whether the Board, in its discretion, could bring a judicial action to enforce the subpoena is an
issue which was not raised before us. The General Assembly’s use of the word “MUST” in § 4-
306(b)(6) of the Health Occupations Article may suggest that a motion to quash or a motion for a
protective order are the exclusive methods to resolve challenges to the subpoenas. On the other
hand, § 4-306(b)(6) relates just to recipients of a subpoena. Because the issue was not raised, we
shall not explore it further. We hold only that, in light of the statutory provisions, the Board is not
required to bring a judicial action to enforce the subpoena.

It is noteworthy that the General Assembly provided for alternative proceedings to discipline
12
a health care provider who failed to comply with a subpoena issued by the Board. In addition to the
present administrative/judicial review proceeding under § 14-404(a)(33) of the Health Occupations
Article, § 14-206(b) of the Health Occupations Article provides, inter alia, that if “a person disobeys
a subpoena from the Board,” a court “may punish the person as for contempt of court.” See also § 4-
309 of the Health-General Article, relating to a health care provider’s refusal to disclose records.

-22-

r igh ts aga ins t the Board’s need for the med ica l records in Dr . E is t’s possess ion ,

extensively relied upon this Court’s opinion in Doe v . Maryland Board of Soc ial Work

Exam iners , 384 Md . 161 , 862 A .2d 996 (2004) , and upon the Court of Special Appea ls’

earl ier op inion in Dr . K . v . S tate Board of Physic ian Quality Assurance , 98 Md .App .

103 , 632 A .2d 453 (1993) , cert . denied , 334 Md . 18 , 637 A .2d 1191 , cert . denied , 513

U .S . 817 , 115 S .Ct . 75 , 130 L .Ed .2d 29 (1994) . The Doe case invo lved a subpoena for

records of a soc ia l worker concern ing two of the soc ia l worker’s c l ien ts . Dr . K , l ike the

presen t case , invo lved a subpoena for a psych ia tr is t’s med ica l records re la t ing to one

of the psych ia tr is t’s pa t ien ts . In bo th of these cases , the appe l la te cour ts , inter a lia ,

we ighed the agenc ies’ need for the subpoenaed records aga ins t the c l ien ts’ and

pa t ien t’s pr ivacy r igh ts in the records . The Cou r t o f Appea l s in Doe and the Cou r t o f

Spec ia l Appea l s in D r . K he ld tha t the agenc ie s ’ need fo r the reco rd s outwe ighed the

pr ivacy in teres ts of the c l ien ts in Doe and the pa t ien t in Dr . K . Wha t is s ign if ican t for

purposes of the presen t case , and wha t was over looked by the ALJ and the Cour t of

Spec ia l Appea ls in the presen t case , is tha t bo th Doe and Dr . K were jud ic ia l ac t ions to

quash the subpoenas issued by the admin is tra t ive agenc ies dur ing the agenc ies’

investigations . In both cases , the trial courts denied motions to quash the subpoenas ,

and these dec is ions were aff irmed on appea l . Doe and Dr . K were no t , l ike the presen t

case , ac t ions for jud ic ia l rev iew of f inal ad jud ica tory dec is ions by the admin is tra t ive

agenc ies .13

In fact, this point was emphasized in Dr. K, 98 Md. App. at 121, 632 A.2d at 462, as follows:

(continued…)

-23-

O ther cases in th is Cour t i l lus tra te tha t a mot ion to quash , or a mot ion for a

protective order , or a motion for enforcement of the subpoena if provided for by statute ,

are the appropr ia te rou tes for ra is ing cha l lenges to admin is tra t ive subpoenas . See , e .g . ,

Unnamed A t torney v . A t torney Gr ievance Comm iss ion , 409 Md . 509 , 976 A .2d 267

(2009); Lub in v . Agora , 389 Md . 1 , 882 A .2d 833 (2005); State Commission v . Freedom

Express , 375 Md . 2 , 825 A .2d 354 (2003); Dep’t of Social Services v . Ste in , 328 Md . 1 ,

612 A .2d 880 (1992) ; Unnamed A t ty . v . A t torney Gr iev . Comm’n, 303 Md . 473 , 494

A .2d 940 (1985); Fred W . Allnu tt , Inc . v . Comm’r , Lab . & Ind . , 289 Md . 35 , 421 A .2d

1360 (1980) ; Banach v . S ta te Comm’n On Human Re la t ions , 277 Md . 502 , 356 A .2d

242 (1976) . The par t ies have no t ca l led to our a t ten t ion any op in ion of th is Cour t ,

invo lv ing cha l lenges to an admin is tra t ive subpoena , wh ich wou ld sanc t ion the

procedure requ ired by , and the dec is ions of , the ALJ and the rev iew ing cour ts in the

presen t case .14

(…continued)

“We emphasize that as yet no charges have been filed and no
disciplinary action has been taken against Dr. K. At this stage, it is
just as likely as not that the Board will agree with Dr. K’s defense to
the complaints filed against him and take no disciplinary action.
Further, there are statutory provisions protecting patient A’s records
from being used for any purpose other than this investigation of
Dr. K. Patient A may be entitled to sue for civil damages for any
unauthorized disclosure of her medical records.”

Even if §§ 4-306 and 4-307 of the Health-General Article had not expressly provided that
14
Dr. Eist’s exclusive remedy was to file in the Circuit Court a motion to quash the subpoena or a
motion for a protective order, the result would be the same. It is a settled principle of Maryland law
that, when a tribunal having jurisdiction issues to a person an order, that person may not refuse to
obey the order on the theory that it is unlawful or unwarranted and, in a later collateral proceeding
such as a contempt action or other disciplinary action like the present one, defend by attacking the
earlier order. Instead, that person is required to challenge the order directly, in a proceeding
(continued…)

-24-

Under § 4-306 and 4-307 of the Hea l th-Genera l Ar t ic le of the Mary land Code ,

Dr . E is t’s exc lus ive jud ic ia l remedy was to f i le , in the C ircu i t Cour t for Mon tgomery

Coun ty , a mot ion to quash the subpoena or a mot ion for a pro tec t ive order . He was no t

en t i t led to refuse t ime ly compl iance w i th the subpoena , refra in from f i l ing a mot ion to

quash or a mo t ion for a pro tec t ive order , and la ter , in th is co l la tera l con tes ted case

admin is tra t ive proceed ing , cha l lenge the subpoena .

(…continued)
14
available for such challenges, such as a motion to quash, an appeal, etc. See, e.g., Attorney Griev.
Comm. v. Garland, 345 Md. 383, 398-399, 692 A.2d 465, 472-473 (1997); Harford Co. Educ. Ass’n
v. Board, 281 Md. 574, 585-588, 380 A.2d 1041, 1048-1050 (1977); Shapiro v. Ryan, 233 Md. 82,
86-87, 195 A.2d 596, 598-599 (1963); Sheets v. City of Hagerstown, 204 Md. 113, 124-125, 102
A.2d 734, 738-739 (1954); Donner v. Calvert Distillers Corp., 196 Md. 475, 488-489, 77 A.2d 305,
310 (1950). See also United States v. United Mine Workers, 330 U.S. 258, 293-294, 67 S.Ct. 677,
696, 91 L.Ed. 884, 912-913 (1947). There is no reason why the same principle should not be
applicable to an administrative agency such as the Board, where the Legislature authorized the
agency to issue a subpoena and authorized a court to punish a person, “as for contempt of court,”
who disobeyed the subpoena. See § 14-206(b) of the Health Occupations Article.

It should be pointed out that the above-discussed principle would not apply in cases involving
subpoenas issued by federal grand juries or federal agencies. The reason for this is that denial of
a motion to quash by a federal trial court is not appealable even though the denial of the motion
terminates the proceeding in the trial court. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580,
29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940);
Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L.Ed.686 (1906). If the recipient of a
federal subpoena desires to continue challenging it after the trial court denies a motion to quash, the
recipient must disobey the subpoena and challenge it in a collateral proceeding such as a contempt
action. This Court, however, has consistently refused to follow the non-appealability rule adopted
by the Supreme Court in Alexander, Cobbledick, and Ryan. When a Maryland trial court denies a
motion to quash or a motion for a protective order, and that action terminates the proceedings in the
court, the trial court’s denial is appealable even though administrative proceedings, or investigative
proceedings, or separate court proceedings where the recipient of the subpoena was not a party, are
ongoing. See, e.g., Unnamed Attorney v. Attorney Grievance Commission, 409 Md. 509, 513-514
n.2, 976 A.2d 267, 270 n.2 (2009); St. Joseph’s v. Cardiac Surgery, 392 Md. 75, 88-91, 896 A.2d
304, 312-313 (2006); Dep’t of Social Services v. Stein, 328 Md. 1, 20-22, 612 A.2d 880, 885-886
(1992); Unnamed Atty. v. Attorney Griev. Comm’n, 303 Md. 473, 480-483, 494 A.2d 940, 943-945
(1985); In Re: Special Investigation No. 244, 296 Md. 80, 83-86, 459 A.2d 1111, 1114 (1983).

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JUDGMENT OF THE COURT OF SPECIAL
A P P E A L S R E V E R S E D A N D C A S E
REMANDED TO THE COURT OF SPECIAL
A P P E A L S W I T H D I R E C T I O N S T O
REVERSE THE JUDGMENT OF THE
CIRCUIT COURT FOR MONTGOMERY
COUNTY AND REMAND THE CASE TO
THE CIRCUIT COURT WITH DIRECTIONS
TO AFFIRM THE DECISION OF THE
M A R Y L A N D S T A T E B O A R D O F
PHYSICIANS . RESPONDENT TO PAY THE
COSTS IN THIS COURT AND IN THE
COURT OF SPECIAL APPEALS .

IN THE COURT OF APPEALS OF MARYLAND

No . 110
Sep tember Term, 2007
_________________________________________

MARYLAND STATE BOARD OF
PHYSICIANS ,

v .

HAROLD I . EIST

__________________________________________

JJ .

__________________________________________

Dissenting Opinion by Raker , J . , which
Be ll , C .J . , and Ca the ll , J . , Join .
_________________________________________

Filed: January 21 , 2011

Raker , J . , dissen ting , joined by Bell , C .J . and Cathell , J .

The C ircuit Cour t for Montgomery County reversed the decision of the Maryland

S tate Board of Physicians on Apr il 5 , 2006 , and remanded the ma tter to the Board w ith

ins truct ions to dismiss the charge against Dr . Eist . Earlier , in August of 2005 , the same

cour t ru led , from the bench , tha t the Board had commi t ted an error of law when i t

de termined , in ter alia , tha t a doc tor who fa i ls to produce records in response to a

Board- issued subpoena necessar i ly v io la tes Mary land Code (1981 , 2009 Rep l . Vo l .) §

14-404(a)(33) of the Hea l th Occupa t ions Ar t ic le , even if he ac ted in good fa i th and in

re l iance upon the adv ice of counse l . The cour t then remanded the ma t ter to the Board

for a fu l l con tes ted case hear ing before the ALJ . I wou ld aff irm the C ircu i t Cour t for

Mon tgomery Coun ty on the grounds tha t Dr . E is t , in re ly ing upon the adv ice of h is

counse l , d id no t fa i l to coopera te w i th a lawfu l inves t iga t ion conduc ted by the Board .1

Dr . E is t was represented on this issue by a highly respected and competent a ttorney ,

Arm in U . Kuder . I t is c lear from the fac ts tha t Mr . Kuder was adv is ing Dr . E is t

throughou t these proceed ings . Under the c ircums tances presen ted here in , and whe ther

a doctor must file a mo tion to quash a subpoena or simply may decline to provide the

med ica l records , i t seems to me tha t a physic ian shou ld be ab le to re ly upon and fo l low

the adv ice of h is a t torney .

I g leaned the fo l low ing fac ts re la ted to th is represen ta t ion from the op in ion of the

1 Because the Court of Special Appeals decided the case on other grounds, i.e., that the
Board was not entitled to the records, the court did not consider whether Dr. Eist acted in
good faith and/or upon the advice of counsel in refusing to furnish the records in response
to the subpoena.

Cour t of Spec ia l Appea ls , wh ich no ted as fo l lows :

-2-

“Dr . E is t then ca l led Armin U . Kuder , Esqu ire , for adv ice .
Mr . Kuder to ld h im tha t [ the Board] was wrong and tha t i t
was essen t ia l to ob ta in the pa t ien ts’ permiss ion before
d isc los ing the ir men ta l hea l th records . . . .

Dr . E is t d id no t rece ive [ the Board’s second] le t ter un t i l Ju ly
7 , 2001 . He con tac ted Mr . Kuder , who on Ju ly 11 responded
to [ the Board] in wr i t ing . Mr . Kuder gave background
information about the Domestic Case for context , and said
tha t Dr . E is t was prepar ing , and shor t ly wou ld send , a
wr i t ten response to Mr . S’s unprofess iona l conduc t
a l lega t ion . Mr . Kuder wen t on to say tha t , to the ex ten t the
Board was cons ider ing the ‘a l lega t ions’ aga ins t Dr . E is t to
inc lude Mr . S’s compla in t abou t the propr ie ty of the
trea tmen t be ing rendered to Pa t ien ts A , B , and C ( i .e . , the
s tandard of care a l lega t ion) , ‘Dr . E is t is under the
impress ion tha t he does no t have h is pa t ien ts’ permiss ion to
revea l the ir conf idences , and tha t no cour t has we ighed the
necess i ty for v io la t ing the ir conf idences based upon the
unsuppor ted a l lega t ions of someone w i th a c lear conf l ic t of
in teres t , and a des ire to v io la te those conf idences .’”

Board o f Phys icians v . E ist , 176 Md . App . 82 , 104-06 , 932 A .2d 783 , 796-97 (2007) .

I wou ld aff irm the judgmen t of the Court of Spec ia l Appea ls , a lbe i t on d ifferen t

grounds than tha t cour t he ld . I wou ld ho ld tha t Dr . E is t re l ied in good fa i th upon the

adv ice of h is counse l and tha t he d id no t fa i l to coopera te w i th an inves t iga t ion of the

Board .

I am au thor ized to s ta te tha t Ch ief Judge Rober t M . Be l l and Judge Da le Ca the l l

join in the views expressed in this dissenting opinion .