While last month’s case showed the balancing test that courts will perform in deciding when to allow government access to a patient’s medical records, a different standard applies to psychotherapy records.
In 2012, the Medical Board of California (MBC) initiated an investigation of Dr. P, a psychiatrist, following a complaint from the former husband of a patient that Dr. P had engaged in a sexual relationship with the patient as well as “overprescribing, unprofessional conduct, and substandard care.” When the woman spoke with an MBC investigator, she said she was no longer a patient and she denied having had a sexual relationship with Dr. P. She also denied Dr. P had ever engaged in inappropriate conduct as her therapist and refused the MBC’s request to obtain her treatment records from Dr. P.
The MBC investigator subpoenaed Dr. P’s treatment records of the patient; Dr. P objected and refused to produce the documents. When the MBC filed a petition to compel the production of documents, the patient filed an objection with the court, asserting the psychotherapistpatient privilege and her constitutional right of privacy.
When the trial court judge reviewed the medical records behind closed doors, he concluded that the patient’s privacy interest in the documents outweighed the MBC’s interest in their disclosure and denied the petition.
On its review of the trial court judge’s decision, the Court of Appeal in Kirchmeyer v. [P] noted that a physician’s engagement in sexual relations with a patient constitutes unprofessional conduct and that “sexual exploitation” of a patient by specified healthcare providers is a criminal offense. (The Court of Appeal’s analysis dealt only with the dispute over compelling the production of records and did not attempt to ascertain the truthfulness of any underlying allegations.)
At the outset of its discussion, the appellate court cited established case law: “When the Medical Board seeks judicial enforcement of a subpoena for a physician’s medical records, it cannot delve into an area of reasonably expected privacy simply because it wants assurance the law is not violated or a doctor is not negligent in treatment of his or her patient.”
The appellate court went on to explain that the showing required to overcome a privacy right depends on the nature of the privacy right asserted. “In some cases, a compelling state interest must be shown, while a simple balancing act is used in other situations.”
In denying the MBC’s bid for the medical records of Dr. P, the Court of Appeal compared the facts to those in the recent case of Fett v. Medical Board of California. In Fett, the Court of Appeal backed an administrative subpoena for patient records in an investigation of an ophthalmic plastic surgeon after balancing the state’s interests in the quality of medical care rendered in California versus Dr. Fett’s patients’ competing privacy interests.
“Although the Fett court used a simple balancing test, we use the compelling state interest analysis because we are dealing with records protected by the psychotherapistpatient privilege, which was not asserted in Fett,” the court stated. “The psychotherapist-patient privilege is a kind of privacy that may be overcome only on a showing of a compelling state interest.”
In finding that the state did not meet its burden of asserting a compelling interest in the protected patient treatment records, the Court of Appeal noted that the MBC could attempt to make its case that Dr. P engaged in an improper relationship using other evidence. The appellate court added, as the patient had argued in opposing the subpoena, “It is unlikely any such relationship would have been documented in the patient notes.”
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com.