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“Patient confidentiality” provides cover for doctor charged with Rx abuses

September/October 2010 The state medical board was legitimately denied access to patient records of a board-certified psychiatrist who specializes in pain management, because of state law governing psychotherapist-patient privilege, the Supreme Judicial Court of Massachusetts ruled September 2

(Board of Registration in Medicine v. John Doe).

The case began in 2007, when the state medical board received a report from a physician expressing concern about the psychiatrist John Doe and his possible impairment. The board began an investigation.

Doe’s practice is cash-only, with no insurance accepted; he only accepts patients referred by other patients, and he holds open hours rather than scheduling appointments. A board investigation of prescription records for 205 of Doe’s patients showed that 81% had been prescribed oxycodone, 78% had been prescribed diazepam (Valium), and 77% had been prescribed both.

In 2008, the investigator requested an interview with Doe seeking the medical records of Patient A and 23 other patients. Doe appeared for the interview with only one patient’s records, saying he could disclose it because the patient violated a pain management agreement with him. Patient confidentiality prohibited him from disclosing the other records, he claimed.

The board served Doe with a subpoena demanding the production of the 24 patients’ records. Doe refused, arguing that the records are protected by the psychotherapist-patient privilege and state common law of privacy. He also countered with a subpoena directed at the investigator and seeking all records relating to the board’s investigation.

Doe contended that he qualified as a psychotherapist because pain management is a subspecialty of psychiatry. And under Massachusetts law, a statutory privilege protects certain communications between psychotherapists and their patients; it applies “in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings.”

A trial court ruled against Doe, but on appeal the Massachusetts Supreme Jujdicial Court confirmed that Doe did qualify as a psychotherapist. It is the legislature’s duty, the court said, to carve out exceptions to the psychtherapist/patient privilege when they are warranted. Turning down the board’s request that the privilege be waived in the case of Doe, the court concluded that under the law as it stood, the privilege was not outweighed by a strong public interest in disclosure.