Court rebukes board for publicizing doctor’s confidential info

The Court of Special Appeals of Maryland overturned a set of sanctions and, indirectly, a default decision, against the Maryland Board of Physicians in a civil suit filed by anti-vaccine physician Mark Geier in response to a board decision to publicly release confidential medical information about Geier and his family (Maryland Board of Physicians v. Geier).

The October 1 decision did not directly overturn a default decision issued by a lower court, which assigned liability to the board, but the court did overturn a set of sanctions and remanded the case to reconsider both issues in light of the changes.

The case concerns board actions against Geier, a physician who advocates for the idea that certain vaccines cause autism, and his son, David Geier. The board brought disciplinary proceedings against Geier in May 2011, charging him with unprofessional conduct, false reporting, failing to file or keep adequate medical records, practicing medicine with an unauthorized person, gross over-utilization of health care services, and failing to meet peer-reviewed standards. At the same time, the board charged Geier’s son with practicing medicine without a license.

In 2012, after hearings and deliberation, the board revoked Geier’s license and fined Geier’s son $10,000. The Geiers appealed, ultimately without success.

During the disciplinary process, the board issued a cease and desist order, accusing Geier of practicing while his license was under a summary suspension because he had written prescriptions for himself and his family. The order, which was public, contained confidential medical information about Geier and his family, including the nature and reason for the prescriptions.

The Court of Special Appeals, declining to describe the medical problems itself, in order not to add to the breach of confidentiality, said, “We shall simply state that it was highly personal in nature and not of the sort that an ordinary person would want to have disseminated to the public.” Although the board, which maintained that it had the right to post the information, removed it, by that time others had accessed it and immortalized it via the Internet.

As a result of the disclosures, Geier, his wife, Anne, and Geier’s son filed a complaint against the board, claiming that the disclosure had violated their constitutional right to privacy and the Maryland’s Confidentiality of Medical Records Act and seeking compensatory and punitive damages.

The Geiers claimed that the board had acted intentionally in order to embarrass them through the disclosures.

As part of the suit, the Geiers sought to obtain records documenting the board’s decision to disclose their medical information in order to prove malice. The Geiers filed motions to compel discovery and, despite the board’s claims of deliberative process privilege and work-product protection for the documents, the trial court granted the request.

Although the board did not appeal that order, it then asserted attorney-client privilege, which the Geiers challenged in another motion.

After the Geiers moved for sanctions against the board, it turned up an additional 14 boxes of relevant documents. The trial court then granted both the Geiers’ second motion to compel and their motion for sanctions. Additionally, the Geiers sought and won a third motion to compel the board to provide documents related to a disciplinary case against Geier’s partner, physician John Young. After the board failed to produce the ordered documents, the Geiers filed and won another motion for sanctions.

Then, in June 2014, two days before a scheduled deposition of a representative of the board, the board moved for a protective order, claiming that the deposition questions provided by the Geiers were insufficiently specific and that the representative had “a professional scheduling conflict,” a conflict which the trial court later learned had simply involved the representative arranging to take that day off from work.

When the court declined to provide a protective order by the date of the deposition, the board representative and its legal counsel failed to show. This prompted a third motion for sanctions. Yet another sanctions motion was granted after a board representative came to a deposition unprepared to discuss the topics listed in the deposition motion.

The trial court, in a December 2014 order addressing this last motion for sanctions regarding Young’s disciplinary file, noted the board’s repeated failures in complying with the discovery process and issued a default order against it on the issue of liability, with damages to be decided later. The board appealed and the case went to the Court of Special Appeals.

Although appeals of non-final orders are normally prohibited in Maryland, the court allowed the appeal of the discovery motions under the “collateral order doctrine,” which seeks, among other things, to prevent the public harm that would accompany the disruption caused by allowing discovery into the decision-making process of high-level officials by allowing appeals of orders which are distinct from the merits of a case but which conclusively determine a disputed question and are “effectively unreviewable on appeal from a final judgment.”

The Court of Special Appeals then reversed the lower court’s decision to compel discovery of Young’s case file. Maryland law requires the consent of all parties to a discipline case in order to allow disclosure of the case file, except where the disciplined party, itself, is bringing a claim against the board. Because the board opposed the motion and because Young was not a party to the civil suit, the records in his discipline case were not discoverable.

The Court of Special Appeals also disagreed with the lower court’s decision that the deliberative privilege claimed by the board did not protect Young’s file from disclosure. In a case where a governmental party asserts the privilege, a court is required to weigh the public’s need for the confidentiality of the deliberation of public officials against the impact of nondisclosure on the parties to the case.

The lower court had not expressly weighed these factors in the matter of Young’s file, so the appellate court ruled that the lower decision was invalid. The court also overturned a decision by the trial court rejecting the board’s claim of attorney-client privilege for communications between one of its investigators and its legal counsel.

Although the appeals court held that it did not have jurisdiction to address the board’s appeal of the default order, it noted that its decision on the motion to compel discovery would have indirect implications on the lower court’s decision whether to order a default judgment against the board. The court suggested the lower court reassess its decision after reconsidering the motion to compel discovery. The Court of Special Appeals remanded the case to the lower court to reassess its decisions in light of the appeals court’s findings.