Harold Eist, M.D.: Failing to fight the medical board "would have
a negative effect on the state of psychiatric care in Maryland and throughout
A Maryland appeals court has ruled in favor of psychiatrist Harold Eist,
M.D., in his years-long suit against the Maryland Board of Physicians in a
case that centered largely on the extent to which patients have the right to
keep their records confidential and a psychiatrist's obligations when those
records are subpoenaed in a legal case.
In its September 13 decision, the Court of Special Appeals of Maryland
upheld two rulings from a lower court that rejected arguments by the medical
board that it had the right to punish Eist for failing to cooperate with an
investigation it initiated.
The legal case began in 2001 when a woman Eist had been treating reg ularly
since 1999 entered a bitter legal battle with her estranged husband over
custody of their three sons. Two of the sons, aged 10 and 14, were also in
treatment with Eist. The husband filed a complaint with the Maryland medical
board alleging that Eist was overmedicating all three patients and described
serious mental health symptoms he ascribed to the alleged overmedication. To
investigate the charges, the board ordered Eist to turn over the wife and
children's psychiatric records (Psychiatric News, April 18,
Eist then informed the wife about the subpoena, and she, as well as
attorneys for the children, refused to waive their constitutional right to
medical-record privacy, a fact that Eist then conveyed to the medical board to
explain his decision not to comply with its order and asked how he should
proceed in light of his ethical concerns. The board did not respond,
Nearly a year after it issued its subpoena, the medical board charged Eist
with failing to cooperate with a legal investigation of medical practice. At
this point Eist told the wife and the children's attorney about the charges
and asked them if they were still insisting on exercising their privacy rights
under Maryland law. He informed them that if he had no response from them, he
would assume that they were no longer invoking these rights and would then
turn the requested records over to the board. They didn't respond, and Eist
gave the board the records its wanted.
While a peer-review committee vindicated Eist's treatment of these
patients, including the use of medication (a decision about which the board
did not inform Eist), the board took action on its claim that Eist refused to
cooperate, finding him guilty. On appeal by Eist an administrative law judge
backed his contention that the board's action was not warranted.
When the board refused to cancel its actions against Eist after the
administrative law judge's ruling, he appealed the case to the Circuit Court
for Montgomery County, which also ruled in his favor. That court stated that"
the Board had committed an error of law when it determined that it had
an absolute right to the mental health records it had subpoenaed, merely
because it is statutorily empowered to issue subpoenas, and regardless of any
constitutional or statutory right of privacy the patient has...."
Despite this decision, the medical board still refused to revisit its ruling,
which levied a financial penalty on Eist.
Eist again appealed, and again the court backed his argument, but the board
still refused to back down. It was this second ruling that the appeals court
upheld last month.
The appeals court stated that contrary to what the medical board contended,
Maryland law does provide an exception to the rules controlling privacy of
psychiatric records when an investigation of medical practice is at issue, and
that Eist was required to turn over the records even without the patient's
permission. When a patient does invoke constitutional privacy rights, however,
the government must have a "compelling interest" in obtaining the
records that "outweighs the patient's privacy interest," and the
burden of proof lies with the government agency, according to the appeals
The court's evaluation determined that the government did not prove a
compelling interest that would overrule the patients' privacy rights in this
It ruled, however, that "the evidence before the Board was legally
insufficient to support its ruling that Dr. Eist failed to cooperate with a
lawful investigation," since he acted in good faith once the patient
challenged the board's right to the medical records.
Eist hailed the ruling as "an excellent opinion after having been
under the gun for seven years and struggling with the power of the
Eist added that he decided to fight the medical board because failing to do
so "would have a negative effect on the state of psychiatric care in
Maryland and throughout the country."
Medical board officials declined to comment to Psychiatric News on
the appeals court ruling and whether the board will file another appeal.▪