COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. No P DR. JOHN DOE, Appellant

Transcription

1 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT No P 0207 DR. JOHN DOE, Appellant v. COMMONWEALTH OF MASSACHUSETTS, BOARD OF REGISTRATION IN MEDICINE, Appellee APPEAL FROM JUDGMENT BY THE SUPERIOR COURT BRIEF OF THE APPELLANT DR. JOHN DOE Respectfully submitted by: Paul Cirel (BBO No ) Ingrid Martin (BBO No ) Azure Abuirmeileh (BBO No ) Dwyer & Collora, LLP 600 Atlantic Avenue Boston, MA

2 ISSUES PRESENTED (1) Whether the patient treatment records subpoenaed by the Board of Registration in Medicine ( Board ) from Dr. John Doe, a board-certified psychiatrist, are protected from disclosure by the psychotherapist-patient privilege under G.L. c. 233, 20B and by Massachusetts privacy law. (a) Whether the Superior Court erred as a matter of law when it looked beyond the fact that Dr. Doe is a board-certified psychiatrist practicing in a recognized subspecialty of psychiatry when it determined that he is not a psychotherapist under G.L. c. 233, 20B. (b) Whether the Superior Court erred when it did not allow Dr. Doe an evidentiary hearing to establish the nature of his practice. (2) Whether Dr. Doe is entitled to an evidentiary hearing to examine whether the subpoena issued by the Board lacked a factual, rational basis and should not be enforced. STATEMENT OF THE CASE Dr. John Doe challenges a subpoena served on him by the Board that sought the records of twenty-four of his patients. (A ). Dr. Doe is a 1

3 psychiatrist certified by the American Board of Psychiatry and Neurology. (A ). Dr. Doe refused to comply with the subpoena because the records sought are protected by the psychotherapistpatient privilege, G.L. c. 233, 20B, and by Massachusetts privacy law. In these circumstances, a psychiatrist may assert the privilege on his patients behalf. See Commonwealth v. Kobrin, 395 Mass. 284, 287 n.8 (1985). Dr. Doe further challenges the subpoena as unreasonable, arbitrary, and capricious, absent any assertion by the Board of a consistent, rational basis for seeking the records of twenty-three patients, none of whom provided releases to the Board. After Dr. Doe notified the Board that he could not honor its subpoena, the Board filed a complaint in the Superior Court to enforce the subpoena. (A. 6-30). The complaint attached an affidavit of a Board investigator which purported to set out a factual basis to deny Dr. Doe s patients the protection of the psychotherapist-patient privilege. (A ). Dr. Doe requested an evidentiary hearing to challenge the assertions made in the affidavit, to demonstrate the nature of his practice, and to show the subpoena s 2

4 lack of a proper basis. (A ). The judge (Charles Spurlock, J.) refused to hold an evidentiary hearing and heard the case on the papers. He also quashed the subpoenas issued on behalf of Dr. Doe for production of records and testimony. (A ). Without the benefit of an evidentiary hearing, on April 23, 2008, the Court issued a Memorandum and Order, ruling, as the Board had argued, that Dr. Doe is not a psychotherapist within the meaning of G.L. c. 233, 20B, and thus that his patients are not entitled to the benefit of the psychotherapist-patient privilege. The judge ordered that Dr. Doe turn over the records of all of the patients identified in the Board s subpoena. (A ). After moving unsuccessfully for reconsideration and a new trial, arguing that he had been denied the opportunity to challenge the Board s factual basis for characterizing his practice, final judgment was entered on July 2, 2008, commanding Dr. Doe to produce the records of the twenty-three patients within five days. (A ). A notice of appeal was timely filed on July 7, (A. 275). The Superior Court has stayed the execution of the judgment pending this appeal. (A. 277). 3

5 STATEMENT OF FACTS Dr. Doe is licensed to practice medicine in Massachusetts and is board-certified in psychiatry and forensic psychiatry. (A ). He specializes in the treatment of patients suffering from chronic pain. (A. 252). Psychiatry recognizes that chronic pain often has a mental health component, and the treatment of chronic pain is a subspecialty within the practice of medicine. Pain Disorder is a recognized diagnosis in the American Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders (commonly referred to as the DSM-IV ). (A ). Dr. Doe treats his pain patients in the standard manner of modern psychiatry with talk therapy, prescription medication, and instruction on relaxation and stress reduction techniques. On January 2, 2008, Board Investigator Anne Vacca sent Dr. Doe a letter requesting an interview and the records of twenty-four of Dr. Doe s patients. (A ). The letter states that Investigator Vacca is investigating whether Dr. Doe had prescribed Percocet to Patient A for no legitimate medical purpose. (A. 87). Patient A was one of the twenty-four patients whose records were requested. (Id.). 4

6 The Board has not disclosed the precise origin of its investigation. However, in the previous summer Dr. Doe received a call from someone working for the Faulkner Hospital s Addiction Clinic ( Faulkner Clinic ) who informed Dr. Doe that Patient A had appeared at the Faulkner Clinic claiming that he needed help with an addiction to prescription pain killers. (A. 114, 116). Patient A had been prescribed oxycodone by Dr. Doe for treatment of his chronic pain. (A ). Patient A apparently informed the Faulkner Clinic that he also was taking additional pain medication, fentanyl, which he had received from a source other than Dr. Doe. (A. 116). Patient A s conduct violated his pain treatment contract with Dr. Doe, which required Patient A to limit his use of pain medications to the drug, dosage, and amounts prescribed by Dr. Doe. (A. 91). Such a contract is a tool used in the treatment of chronic pain to ensure that patients do not consume pain medications in excess of what the treating doctor has prescribed. Under the contract, the patient agrees not to obtain pain medications from any other source. (A. 90). The patient further agrees that violation of the contract may result in a termination of the 5

7 doctor-patient relationship, and authorizes Dr. Doe to cooperate fully with any government investigation that results from the patient s non-compliance. (Id.). Dr. Doe terminated his relationship with Patient A shortly after confirming Patient A s violation, and long before the Board requested an interview. (A. 115). That termination is documented in Patient A s records. (Id.). In response to Investigator Vacca s request, Dr. Doe met with her and a Board prosecutor in January (A. 13). At that meeting, he answered their questions regarding Patient A and produced Patient A s medical records since Patient A s violation of his pain management agreement allowed Dr. Doe to cooperate fully with the Board. (A ). However, Dr. Doe refused to violate his obligation to preserve the confidentiality of the other twenty-three patients psychiatric treatment and declined to produce his records for those individuals. As produced to the Board on January 28, 2008, Patient A s medical records reflect that -- contrary to the allegations set forth in Investigator Vacca s January 2, letter -- Dr. Doe never prescribed Percocet to Patient A. Instead, the records reflect that Dr. 6

8 Doe specifically prescribed oxycodone to Patient A because he is allergic to acetaminophen, which, along with oxycodone, is one of the two components of Percocet. (A ). The Board has provided no evidence, nor does it allege that the frequency and amount of those prescriptions for oxycodone were not within the accepted therapeutic range. Although the Board s allegation that Dr. Doe had been improperly prescribing Percocet to Patient A found no support in Patient A s medical records, on January 30, 2008, the Board issued a subpoena duces tecum to Dr. Doe that demanded production of the medical records of the remaining twenty-three patients identified in Investigator Vacca s letter. (A ). Dr. Doe refused to provide the subpoenaed records and the Board then filed this action in Superior Court under G.L. c. 233, 10 described in Section II.B above. In the order entered on April 23, 2008, the Superior Court granted the Board s Application for Relief finding that Dr. Doe did not meet the definition of psychotherapist in G.L. c. 233, 20B. (A ). The Superior Court s order took no position as to whether the Board s subpoena had a 7

9 rational basis, commenting only that the Board has the statutory authority to issue subpoenas. (A. 213). SUMMARY OF ARGUMENT Dr. Doe properly refused to comply with the Board s subpoena because his patient records are protected by the psychotherapist-patient privilege. Dr. Doe meets the definition of psychotherapist under G.L. c. 233, 20B because he is a licensed physician who devotes a substantial portion of his time to the practice of psychiatry. Infra. pp , 24. The Superior Court erred as a matter of law when it determined that the definition of psychotherapist required it to dissect the nature of Dr. Doe s practice in psychiatry. It is evident from both the text of the statute and applicable precedent that so long as a physician makes psychological assessments, forms clinical impressions regarding his patients mental health, and holds himself out to his patients as providing psychiatry, this is sufficient to meet the definition of psychotherapist. Infra. pp

10 A board-certified psychiatrist meets the definition of psychotherapist. Infra. pp To the extent that a board-certified psychiatrist provides other types of medical services, G.L. c. 233, 20B s definition of what constitutes a privileged communication ensures that communications relative to those other services are not covered by the psychotherapist-patient privilege. Infra. pp Dr. Doe s specialization in chronic pain patients does not alter the conclusion that he is a psychotherapist. Infra. p. 18. Treatment of chronic pain is a recognized subspecialty of psychiatry, and the evidence demonstrates that Dr. Doe s treatment focuses on the psychological components of his patient s pain. Infra. pp Any doubt as to whether Dr. Doe qualifies as a psychotherapist should have been resolved through an evidentiary hearing. The Superior Court abused its discretion when it quashed Dr. Doe s subpoenas and denied his written request for an evidentiary hearing. Infra. pp Dr. Doe s records are also barred from disclosure by privacy law. Massachusetts decisional law recognizes that patient records are highly confidential and should not be disclosed. Infra. pp. 9

11 The Board has not presented any convincing reasons why this confidentiality should be breached in this case. Infra. pp Finally, if this Court finds that the requested records are not protected by privilege or Massachusetts privacy law, it should nevertheless remand this matter for an evidentiary hearing to determine whether the Board s subpoena is arbitrary and capricious. The Board has never set forth the purpose of its subpoena and the minimal explanations that it has provided are inconsistent and are contradicted by the available evidence. Infra. pp Lacking a rational basis, the subpoena is unlawful. Infra. pp Accordingly, Dr. Doe is entitled to an evidentiary hearing at which he may cross-examine the Board s investigator to demonstrate that the subpoena does not have a proper basis. Infra. pp ARGUMENT I. The Records Sought by the Board Are Protected From Disclosure Because Dr. Doe Is a Psychotherapist. A. Standard of Review The Appeals Court should review the Superior Court s determination that Dr. Doe does not meet the 10

12 statutory definition of a psychotherapist de novo because the Superior Court made an error of law in applying the statutory definition. See Devine v. Board of Health of Westport, 66 Mass. App. Ct. 128, 131 (2006). To the extent that the Appeals Court reviews the Superior Court s factual determination that Dr. Doe does not spend a substantial portion of his time practicing psychiatry, that determination also should be reviewed de novo. When such findings are based solely on documentary evidence as they are here an appellate court does not accord them any special deference. Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302 (2009). See also Meschi v. Iverson, 60 Mass. App. Ct. 678, 682 n. 7 (2004) (where the evidence before the motion judge consisted entirely of affidavits and other documentary material, this Court is free to assess the evidence anew ). B. Under G.L. c. 233, 20B, a Board-Certified Psychiatrist Is a Psychotherapist. In its Application for Relief, the Board launched a frontal attack on the psychotherapist-patient privilege, which protects a patient s deeply private communications with his mental health care provider. 11

13 The Board seeks to weaken the privilege by encouraging the adoption of an improper and unworkable test to determine whether the patients of a board-certified psychiatrist are entitled to the protection afforded by G.L. c. 233, 20B. Specifically, the Board urges and the Superior Court accepted that to determine whether a physician who is a board-certified psychiatrist qualifies as a psychotherapist, the Court must dissect and quantify the various elements of an otherwise integrated treatment regimen to determine that a sufficient percentage constitutes psychiatry. Such an approach runs counter to the text of the statute and to case law interpreting the privilege. The statutory definition of psychotherapist seeks to protect communications a patient makes to a person qualified to diagnose and to treat conditions that affect mental health. The definition reads: Psychotherapist, a person licensed to practice medicine, who devotes a substantial portion of his time to the practice of psychiatry. Psychotherapist shall also include a person who is licensed as a psychologist by the board of registration of psychologists; a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution as that term is defined in section 118, who is working under the 12

14 supervision of a licensed psychologist; or a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist, pursuant to the provisions of section eighty B of chapter one hundred and twelve. G.L. c. 233, 20B. This definition grants psychotherapist status on a categorical basis to a number of qualified mental health professionals, such as any one who is licensed as a psychologist by the board of registration of psychologists. A licensed psychologist is not required to make any further showing before the privilege applies to communications he has with his patients regarding their diagnosis or treatment. 1 The definition s inclusion of any person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry is readily understood in the context of medical licensure. A medical license authorizes a physician to practice in any branch of medicine. 1 Categorical status is also conferred on certified psychiatric nurses, and on graduate students pursuing a doctorate degree and working under the supervision of a licensed psychologist. 13

15 Thus, the statute could not fairly limit its protection to board-certified psychiatrists. However, including all physicians in the statutory definition of psychotherapist would risk creating a blanket privilege for all medical care. This requirement that a physician devote a substantial portion of his practice to psychiatry is met by board-certification. Moreover, it would be absurd to put patients of a board-certified psychiatrist in a privilege limbo that does not exist for those patients who are treated by licensed psychologists and certified nurses. The foregoing construction of the definition of psychotherapist is protected from potential abuse by the framework of the statute as a whole. The definition of what constitutes a privileged communication ensures that if a board-certified psychiatrist also practiced in other branches of medicine, the privilege would not encompass such nonpsychiatric care. The privilege created by G.L. c. 233, 20B only applies to communications relative to the diagnoses or treatments of the patient s mental or emotional condition. Accordingly, if a boardcertified psychiatrist provided other types of medical services, such as oncology or surgery, communications 14

16 relative to such diagnoses or treatments would not fall within the psychotherapist-patient privilege. The decision by the Supreme Judicial Court in Robinson v. Commonwealth, 399 Mass. 131 (1987) also demonstrates that the Superior Court erred when it split Dr. Doe s practice into psychiatry on the one hand and pain management on the other. In Robinson, the defendant was indicted for manslaughter in connection with the death of her eleven month old son. The defendant moved to suppress a report of a consultation she had with a physician at the Children s Hospital after she brought her son to the hospital for treatment. The defendant contended that the report was barred from disclosure by the psychotherapist-patient privilege. The Commonwealth countered, in part, that the doctor did not qualify as a psychotherapist under G.L. c. 233, 20B. The SJC held that the privilege applied to this report even though the doctor s board certification was in pediatrics. Specifically, the SJC pointed out that at the outset of her meeting with the defendant, Dr. Burr introduced herself as a psychiatrist. Id. at 132. It also highlighted that Dr. Burr had evaluated the defendant s mental status, that she had formed a 15

17 clinical impression of the defendant, and that Dr. Burr had been assigned exclusively to the psychiatric services department for approximately eight months. Id. at 133, 136. The SJC did not attempt to evaluate the type, quality, or substance of the mental health treatment Dr. Burr provided. It did not even discuss whether Dr. Burr provided any psychotherapy for the defendant. Instead, the SJC simply examined how the doctor introduced herself to the defendant, whether she made a mental status evaluation, and what her specialty was at the time she spoke to the patient. See also Commonwealth v. McDonough, 400 Mass. 639, 645 (1987) (doctor qualifies as a psychotherapist for purposes of the privilege where she had completed two years of a fellowship in child psychiatry and was a resident in adult psychiatry during the relevant time). Under the analysis in Robinson, a board-certified psychiatrist must qualify as a psychotherapist under G.L. c. 233, 20B. A psychiatrist holds himself out to his patients as providing psychiatry, he makes mental status evaluations, and forms a clinical impression regarding each of his patients. The fact that psychiatrists also may devote a portion of their 16

18 time to prescribing medication and ascertaining their patients response to that medication does not alter the psychiatric nature of their work. Finally, inclusion of board-certified psychiatrists within the definition of psychotherapist is necessary because of both the nature and the purpose of the privilege. The privilege exclusively belongs to the patient. The general policy of c. 233, 20B is to protect the justifiable expectations of confidentiality that most individuals seeking psychotherapeutic treatment harbor. Petitions of the Dept. of Social Services, 399 Mass. 279, 287 (1987) (citations and quotations omitted). If the Court were to accept the approach advocated by the Board, a patient could never safely assume that communications with a board-certified psychiatrist are privileged. It cannot be that the law expects a patient to await a subsequent judicial evaluation of the tone, nature, and quality of his board-certified psychiatrist s practice before he can be confident that their communications will be privileged. Such an approach is antithetical to any expectation of confidentiality and would result in unacceptable uncertainty. The Board s approach would 17

19 fundamentally undermine the psychotherapist-patient privilege which seeks to create an environment of confidentiality of treatment [that] is vitally important to the successful operation of psychotherapy. Usen v. Usen, 359 Mass. 453, 457 (1971). C. Dr. Doe s Specialization In Chronic Pain Patients Constitutes the Practice of Psychiatry. Dr. Doe s specialization in treating chronic pain constitutes the practice of psychiatry under G.L. c. 233, 20B. The Superior Court erred when it accepted the Board s legal contention that Dr. Doe does not spend a substantial amount of time practicing psychiatry because he spends the majority of his time in pain management. This assertion creates a false distinction between pain management and psychiatry that does not exist under the governing statute. Indeed, the Board is acutely aware that when Dr. Doe says that he practices pain management, he is referring to his subspecialty in the psychiatric treatment of chronic pain. The management of chronic pain is an accepted field of psychiatry. Pain disorders are recognized by the American Psychiatric Association ( APA ) as a 18

20 type of mental disorder. (A ). As the APA s Diagnostic and Statistical Manual of Mental Disorders sets forth, psychological factors can play a significant role in the onset, severity, exacerbation, or maintenance of the pain. (A. 81). As a result, pain management is a recognized psychiatric specialty. The Board is well aware that Dr. Doe provides legitimate psychiatric treatment for chronic pain. That very question was adjudicated adversely to the Board by an independent Administrative Magistrate at the Division of Administrative Law Appeals ( DALA ). (A ). As detailed in the DALA Magistrate s recommended decision, in 2003, the Board issued a Statement of Allegations against Dr. Doe claiming he had improperly prescribed prescription pain medication. (A. 122). 2 The Board made these allegations after two undercover state troopers made a series of office visits to Dr. Doe complaining of chronic pain. (A. 123). After a psychological assessment, Dr. Doe prescribed pain medications to each of the troopers. (A ). On the basis of 2 A Statement of Allegations is the Board s equivalent of an order to show cause within the meaning of the Standard Rules of Administrative Procedure. 243 C.M.R. 1.01(2). 19

21 reports made by the troopers, the Board contended that Dr. Doe was prescribing medications without a legitimate medical purpose. (A. 126). However, the Magistrate reviewing the charges found that the evidence did not support the Board s allegations. (Id.). To the contrary, the DALA Magistrate specifically found that Dr. Doe s psychiatric practice includes a practice in pain management. (A.123). She continued and held that, Pain disorder is acknowledged as a psychiatric diagnosis in the DSM- IV. (A. 123). She further found that there is no evidence that Dr. Doe was indiscriminately dispensing Percocet and Valium with no legitimate medical purpose. (A. 126). The dosages and strengths of the pills were appropriate. (Id.). In sum, the Magistrate found that Dr. Doe was legitimately engaged in psychiatric treatment of chronic pain and that the Board had taken action against Dr. Doe without reasonable cause. (Id.). Moreover, the Board s own expert in that proceeding testified that chronic pain is a psychiatric diagnosis and that psychiatrists treat chronic pain. (A ). 3 3 The Board evaded the precedential effect of the DALA 20

22 The medical records of Patient A also demonstrate that Dr. Doe treats his patient s perceived physical pain through psychiatry. (A , ). The records reflect that Dr. Doe performed multiple mental status assessments of Patient A and that he explored various potential psychological sources for the physical pain that Patient A was suffering, such as stress, family problems, and disappointments. (Id.). As is typical in modern psychiatry, Dr. Doe combined both talk therapy and prescription medication to treat his patient. Dr. Doe s treatment notes reflect that each time Patient A visited Dr. Doe he received both pain management and psychotherapy. (A ). The Board s claim that Dr. Doe himself has made a distinction between psychiatry and pain management when describing his practice to the Board is, at best, disingenuous. While it is true that Dr. Doe reported in his Physician Registration Renewal Application that he practices psychiatry nine hours per week and pain management for eleven hours per week, (A. 11), this is because under the Board s Renewal Instructions and Magistrate s Recommended Decision by simply declining to adopt it. (A. 128). Nevertheless, it dismissed the case against Dr. Doe. (Id.). 21

23 Requirements, a physician does not have the option of listing his specialty as psychiatry with a subspecialty in pain management. Instead, the Application only offers psychiatry and pain management as separate categories, and it required Dr. Doe to list the one or two specialties in which you spend the most time. (A. 227, 239). Dr. Doe did not intend his answers to reflect that he was not practicing psychiatry with all of his patients. Instead, he set forth that he spends nine hours per week in psychiatry to reflect that those hours are spent treating psychiatric problems that do not have a physical pain component. 4 It is evident from the Board s own Physician Profile database that the Board fully understood that Dr. Doe is a psychiatrist specializing in the psychiatric treatment of pain. (A. 250). If a prospective patient searches for Dr. Doe on the Board s own website, his summary profile indicates that his practice specialty is Psychiatry. (A. 250). If the prospective patient then requests a more 4 Nor does the total of twenty hours suggest that Dr. Doe devotes additional time practicing other medical specialties. Dr. Doe is 72 years old and practices an average of twenty hours per week. 22

24 detailed profile, the Board s records state that his area of specialty is Psychiatry, Pain Management. (A. 252). In sum, even if it were appropriate for the Superior Court to consider anything beyond Dr. Doe s status as a board certified psychiatrist, the documentary evidence Dr. Doe submitted to the Court clearly establishes his qualifications as a psychotherapist under the criteria set forth by the SJC in Robinson. See Robinson, 399 Mass. at 136. Like the physician in Robinson, Dr. Doe holds himself out to his patients as a psychiatrist, he conducts mental status evaluations, forms clinical impressions of his patients, and devotes his practice to psychiatry. Going even further than what the SJC found to be sufficient in Robinson, the evidence presented below demonstrates that Dr. Doe makes psychiatric diagnoses and provides his patients with both talk therapy and medication for their conditions. 23

25 II. The Records the Board Seeks Are Protected From Disclosure from the Psychotherapist-Patient Privilege and Massachusetts Privacy Law. A. The Psychotherapist-Patient Privilege Forbids Disclosure of the Requested Records to the Board. Once this Court finds that Dr. Doe qualifies as a psychotherapist under G.L. c. 233, 20B, the records sought by the Board are protected by the psychotherapist-patient privilege. Under G.L. c. 233, 20B, information conveyed to a psychotherapist is protected from disclosure in the course of any legal or administrative proceeding. The law provides that: [I]n any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient s mental or emotional condition. The law makes exception to this prohibition against the disclosure of psychotherapy records only in a small, expressly enumerated set of circumstances. None of the exceptions enumerated in G.L. c. 233, 20B permit the Board access to the treatment records of Dr. Doe s patients. The only exception that conceivably could bear on this case is exception (f), which permits use of psychotherapy records: 24

26 In any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist. G.L. c. 233, 20B(f). However, it is plain that the Board s subpoena does not fall within this exception. First, the exception only applies to matters before the Board once they have progressed to the stage of an adjudicatory hearing or license revocation proceeding. Here, the matter is still in the early investigatory stage, and no formal adjudicatory proceeding has begun. See 243 C.M.R (investigatory stage); 243 C.M.R (adjudicatory hearing). See also Beth Israel Hosp. Ass n v. Board of Registration in Medicine, 401 Mass. 172, 180 (1987) (finding that powers available to Board during adjudicatory proceeding are not available to Board during investigatory stage); Commonwealth v. Choate- Symmes Health Services, 406 Mass. 27, 29 (1989) (same). Second, the exception only allows use of the records by the psychotherapist; there is no exception carved out for use of privileged materials by the Board as evidence against the psychotherapist. See also Petition of Catholic Charitable Bureau, 392 Mass. 25

27 738, 742 (1984) (the Court may not expand the legislatively enacted exceptions to the psychotherapist-patient privilege). The SJC has specifically held that the psychotherapist privilege bars the use of psychotherapy records during Board proceedings. In Herridge v. Board of Registration in Medicine, 420 Mass. 154 (1995), a physician was seeking to obtain psychiatric hospital records to defend against the patient s complaint against him before the Board. These records reflected psychiatric treatment that the patient received before and after she was treated by the physician facing disciplinary action. Id. at The SJC found that the psychotherapist privilege barred the doctor from using or even seeing the records without the patient s agreement to waive confidentiality. Id. at 157. Moreover, the SJC held that the exception to the privilege allowing the use of records by a defendant in a criminal proceeding did not apply in the context of a Board disciplinary proceeding. Id. In sum, the psychotherapist privilege held without exception in this context even though the records might have contained information 26

28 that would have helped the doctor challenge his accuser s credibility. B. The Board Has Not Offered Any Rationale for Producing Any Portion of the Requested Records Of Other Patients. The Board argued below that if the Superior Court determined that the psychotherapist privilege applies to Dr. Doe s records, the Superior Court nevertheless should review the records of the individuals identified in the subpoena to determine which portions of the records are privileged and which portions can be released. (A. 38). In support of this argument, the Board cited Commonwealth v. Kobrin, 395 Mass. 284 (1985) in which the SJC determined that the psychotherapist-patient privilege barred the production of patient records in response to a grand jury subpoena issued to a psychiatrist in a Medicaid fraud investigation. In Kobrin, the SJC determined that the only portions of the patient s records that could be disclosed to the grand jury were those that reflected times and lengths of patient appointments, fees, patient diagnoses, treatment plans and recommendations, and somatic therapies. Id. at 294. The SJC reasoned that such a limited disclosure was appropriate, in part, because Medicaid regulations 27

29 required the defendant to maintain records of treatment sufficient to support the reimbursement claims he was submitting to Medicaid. Id. at In contrast, the records the Board is seeking here are not being maintained for the express purpose of demonstrating to a government agency that Dr. Doe is providing treatment to his patients. Additionally, this is a civil investigation by a regulatory agency, not a criminal grand jury investigation. Even if the Court believed that it was appropriate to conduct the type of examination of patient records outlined in Kobrin in response to a Board subpoena, this is an impossible exercise for the Court in this case because the Board has never identified what it is seeking. The SJC made clear in Kobrin that when a Court reviews psychiatric records to determine whether portions can be released, it may not release information beyond what is necessary. Kobrin, 395 Mass. at Such an analysis is impossible here where the Board has never defined what it is looking for in the records. To the extent that the Board s prior, failed attempt to question Dr. Doe s practice is any guide, it would appear that the Board wants to examine the 28

30 records of these twenty-three patients to question the legitimate medical basis for Dr. Doe s prescriptions. This is precisely the type of information that the psychotherapist-patient privilege is designed to protect and that Kobrin found could not be released in response to a subpoena. As the Appeals Court recently summarized in Adoption of Saul, 60 Mass. App. Ct. 546, 550 (2004), the psychotherapist privilege protects communications between the patient and her psychotherapist that were made relative to the diagnosis or treatment of the patient s mental or emotional condition. Stated another way, the privilege protects records that reflect patients thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue. Kobrin, 395 Mass. at 294. The Board does not need access to these patient records in order to identify the drugs Dr. Doe prescribed, or the length and dosage of those prescriptions. It is undisputed that the Board already has access to that information through its ability to review Massachusetts pharmacy records. Thus, it seems clear that the Board is seeking to examine the substance of those most intimate 29

31 psychiatrist-patient conversations in order to allege some impropriety in the nature of his treatment. In short, the records the Board seeks are clearly protected by the psychotherapist privilege under G.L. c. 233, 20B, and the Board s attempt to examine these records does not fall into any of the statutorily created exceptions. The Board also has not sufficiently explained the purpose of its subpoena to make the kind of review and segregation of patient records outlined in Kobrin possible. To the extent that the Board s goals are ascertainable, the privilege bars disclosure of the information it seeks. III. The Superior Court Should Have Permitted Dr. Doe to Cross-Examine the Board s Witness and to Present Evidence On His Own Behalf Through an Evidentiary Hearing. A. If There Is Any Doubt As to Whether the Psychotherapist-Patient Privilege Applies to the Requested Records, Dr. Doe Is Entitled to an Evidentiary Hearing to Present Evidence and to Challenge the Board s Assertions. If this Court were to accept the Superior Court s approach of trying to dissect Dr. Doe s psychiatric practice into psychiatric and non-psychiatric components, Dr. Doe should have an opportunity to present evidence to establish the extent to which his practice consists of psychiatry. It was an abuse of 30

32 discretion by the Superior Court to simply accept the assertions in Investigator Vacca s affidavit without giving Dr. Doe an opportunity to cross-examine her or to present countervailing testimony. See C.O. v. M.M., 442 Mass. 648, 657 (2004) (it was abuse of discretion to deny defendant an opportunity to crossexamine plaintiff s witness). In his written opposition to the Board s application for relief, Dr. Doe challenged Investigator Vacca s affidavit as biased and replete with misleading and incomplete information. (A ). Accordingly, Dr. Doe included a written request for an evidentiary hearing at the conclusion of his opposition. (A ). He reinforced this request by issuing two subpoenas to the Board, one seeking the records of Investigator Vacca s investigation which formed the basis of her affidavit - and the other requesting her appearance, so that she could be crossexamined about the assertions in her affidavit. (A ). The Superior Court s decision to deny Dr. Doe s request for an evidentiary hearing and to quash Dr. Doe s subpoenas deprived Dr. Doe of his right to seek and to present evidence on his own behalf. As a party 31

33 in a civil matter, Dr. Doe has a right to obtain and to present evidence. Under the principles of due process, the Rules of Civil Procedure, as well as the Rules of the Superior Court, Dr. Doe should have been permitted to gather relevant information, to participate in an evidentiary hearing, and to crossexamine and challenge the credibility of the Board s sole witness. See Mass. R. Civ. P. 26(b) ( Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ); Mass. R. Civ. P. 45 (parties may issue subpoenas and, at any party s request, subpoenas for attendance at a hearing or trial shall be issued ); Superior Court Rule 9A(c)(3) (a party has a presumptive right to a hearing on a motion for injunctive relief). See also, Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 615 (1993) ( Generally, discovery is permissible of any nonprivileged material which is relevant to the pending action and is reasonably calculated to lead to the discovery or admissible evidence. ). The Superior 32

34 Court improperly eliminated Dr. Doe s right to obtain discovery and to challenge the evidence put forth by the Board when it denied his request for an evidentiary hearing and quashed his subpoenas. See Roche v. Mass. Bay Transp. Authority, 400 Mass. 217, 222 (1987) (holding that a defendant s right of crossexamination has long been recognized in both civil and criminal cases and reversing the Superior Court s grant of a motion to quash a witness subpoena). B. By Initiating a Superior Court Action to Compel the Production of Records, the Board Lost the Ability to Keep All Information Regarding Its Investigation of Dr. Doe Secret. The Superior Court erred when it precluded Dr. Doe from obtaining relevant records or testimony because the Board s action against Dr. Doe is still in the investigatory stage. In opposition to Dr. Doe s subpoenas, the Board argued that under G.L. c. 112, 5, so long as it was still in the investigatory, rather than the adjudicatory stage of its proceeding against Dr. Doe, he was not entitled to any discovery from the Board. (A ). The Board s argument ignores the fact that once the Board initiated an action in Superior Court, it subjected itself to the standard obligations of a party engaged in a civil 33

35 litigation. The Board s approach is also manifestly unjust; according to the Board s argument, it can pick and choose facts or allegations to disclose in support of its request for an order to compel, but the defendant cannot mount a challenge to those factual allegations. The Superior Court wrongly abdicated its statutory function as a check against the otherwise unfettered subpoena power by the Board. At the investigatory stage of the proceeding, the Board has the power to issue subpoenas, see G.L. c. 112, 5, but its investigatory subpoenas are subject to both enforcement and oversight by the Superior Court in the manner prescribed by G.L. c. 233, 10. The SJC has repeatedly recognized that under G.L. c. 233, 10, the Superior Court has the power and the duty to decide whether to compel compliance with a subpoena even when the subpoena is issued pursuant to a valid grant of subpoena power to an agency. See Human Rights Comm. of Worcester v. Assad, 370 Mass. 482, 489 (1976) (recognizing Superior Court s power under G.L. c. 233, 10 to adjudicate whether an agency subpoena should be enforced); Mass. Comm. Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 34

36 186, 194 (1976) (remanding to Superior Court to determine under G.L. c. 233, 10 whether the subpoena is so broad, oppressive and burdensome that it should be quashed in its entirety ); Bloom v. City of Worcester, 363 Mass. 136, 161 (1973) (under G.L. c. 233, 10, the Court is to consider arguments by the defendant designed to persuade the court that as a matter of law or in its discretion no order [to enforce the subpoena] should be issued ). See also Rent Control Bd. of Cambridge v. Praught, 35 Mass. App. Ct. 290, 297 (1993) (in proceeding under G.L. c. 233, 10, defendant may attack subpoena as overbroad or improperly seeking privileged documents). Hence, the Board s recourse to the Superior Court as an enforcement authority for its subpoenas necessarily extends the procedural rules of that forum to the targets of its subpoenas. To hold otherwise would extend a policing authority to the Board of a singular nature, and would relegate the Superior Court to serving as the Board s rubber stamp. IV. The Records Requested by the Board Are Protected by Massachusetts Privacy Law. In addition to breaching the psychotherapistpatient privilege, the Board s subpoena violates 35

37 Massachusetts law that protects a patient s valid interest in preserving the confidentiality of medical facts relayed to a physician. Alberts v. Devine, 395 Mass. 59, 65 (1985), quoting Bratt v. Int l Business Machs. Corp., 392 Mass. 508, (1984). Massachusetts law protects the confidentiality of patient records because a patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled. Id. The Board s practice of seeking patient waivers of confidentiality demonstrates that the Board recognizes the applicability of confidentiality and privilege concerns to investigations and other actions taken by the Board against physicians. When a patient fills out the Complaint Form provided by the Board, the Form includes a section in which the patient must authorize the release of his confidential medical records and must agree to waive the psychotherapistpatient privilege. (A. 197). The Form states that failure to agree to this release and waiver section of the Form may prevent the investigation of the 36

38 patient s complaint. (Id.). In this case, the Board has not provided any waivers from Dr. Doe s patients, despite being fully cognizant of the fact that Massachusetts law gives patients a private right of action against physicians who disclose medical information without authorization from the patient. See Devine, 395 Mass. at 59. If Dr. Doe had provided the records of the other twenty-three patients identified in the subpoena to complaint counsel, those patients may have had a valid legal claim against Dr. Doe for violating his duty not to disclose their medical records. These privacy interests should prevail in this case because the Board has failed to assert, let alone establish, a legitimate need to examine the requested patient records. Before the Superior Court, the Board argued that Massachusetts law requires the Court to balance the twenty-three patients privacy interests against the Board s interest in protecting the public health, welfare and safety through the regulation of the practice of medicine. Whatever merit such a balancing test might have in circumstances where the Board has articulated a legitimate need to invade the patients privacy, it has no applicability here since the Board has utterly 37

39 failed to demonstrate or even to identify a need for the records. To the contrary, the Board s recognition that a balance need be struck only underscores the preciousness of the privacy right at issue. In the absence of a counterbalance, that privacy interest must prevail. The Board s demand for the psychotherapy records of these twenty-three patients also is in conflict with the Board s own record of aggressively pursuing and punishing doctors who make disclosures of patient information in connection with a subpoena. See, e.g., Hellman v. Board of Registration, 404 Mass. 800, (1989) (reviewing Board s decision to sanction a physician for gross misconduct because he discussed a patient s medical records with an attorney who had issued a subpoena for the doctor s testimony)(superseded on other grounds); Sugarman v. Board of Registration in Medicine, 422 Mass. 338 (1996) (affirming the Board s decision to suspend license of psychiatrist who disclosed confidential treatment records). Given the Board s own history of policing disclosures of confidential patient information, it is unreasonable for the Board to command Dr. Doe to turn over the privileged and 38

40 confidential records of twenty-three of his patients in the absence of a specific and compelling explanation of need. V. Dr. Doe Is Entitled to an Evidentiary Hearing to Demonstrate That the Subpoena Is Invalid Because It Is Arbitrary and Capricious. If this Court determines that the psychotherapist-patient privilege and Massachusetts privacy law do not bar disclosure of the requested patient records, Dr. Doe seeks a remand to the Superior Court to demonstrate that the Board s subpoena is invalid because it lacks a consistent, rational basis. See Sierra Club v. Comm r of Dept. of Envtl. Mgmt., 439 Mass. 738, 748 (2003). This issue was clearly raised before the Superior Court, (A. 66), but went unaddressed in the Court s order except for its recitation that the Board has the authority to investigate physicians and to issue subpoenas seeking the production of documents. (A. 213). However, the mere fact that the Board has the authority to issue subpoenas does not render the instant subpoena valid. What is at issue is whether, in this particular case, the Board engaged in a proper exercise of that authority. 39

41 Like any agency action, the Superior Court has the authority to review the Board s exercise of its investigatory powers for error of law or abuse of discretion, as measured by the arbitrary or capricious test. Yerardi s Moody Street Restaurant and Lounge v. Bd. of Selectmen of Randolph, 19 Mass. App. Ct. 296, 300 (1985). Like any other agency, the Board of Medicine may not act upon mere whim or vagary. Id. Instead, it must investigate fairly, by comprehensive but reasonable methods. Boston Police Superior Officers Fed n v. City of Boston, 414 Mass. 458, 467 (1993). While courts defer to an agency s exercise of its discretionary functions, that deference does not extend to unreasonable conduct or where an agency is found to be acting contrary to its legal duty. Judge Rotenberg Educ. Ctr., Inc. v. Comm r of the Dept. of Mental Retardation, 424 Mass. 430, 466 (1997). In his Application for Relief, Dr. Doe set forth numerous grounds to doubt the existence of a rational basis for the Board s subpoena: First, since its initial letter to Dr. Doe requesting that he provide the records of twenty-four of his patients, the Board s explanation of why it 40

42 needs these records and what it is investigating has shifted repeatedly. Second, in the affidavit attached to the Complaint, Investigator Vacca makes numerous odd insinuations that do not amount to any claims misconduct by Dr. Doe. For example, she cites that Dr. Doe issued approximately 7,772 prescriptions to 205 patients over a period of approximately eighteen months. (A. 12). But she does not (and could not) state that this is an unreasonable rate of pain prescriptions per patient. Third, as described above, the Board appears to simply be reinvestigating practices that an independent Magistrate previously found to be medically sound. In light of the highly private, confidential nature of the information sought and the deficiencies Dr. Doe identified in the Board s rationale for seeking this information, the Superior Court should have held an evidentiary hearing to examine the validity of the subpoena. In his opposition to the Board s application for relief, Dr. Doe stated that he wanted to cross-examine Investigator Vacca to explore the basis for the allegations set forth in her 41

43 affidavit, to determine why she is seeking to obtain these privileged medical records, and to learn the purpose of her investigation. (A. 74). As discussed above, Dr. Doe also issued a subpoena for the Board s records and a subpoena for Investigator Vacca s testimony. (A ). The Superior Court s decision to quash Dr. Doe s subpoenas and its refusal to hold an evidentiary hearing to explore the validity of the Board s subpoena was an abuse of discretion and was an improper abdication of the Superior Court s role under G.L. c. 233, 10 to ensure that the Board had a proper basis for seeking these highly private patient records. Thus, at the very least, this case must be remanded to the Superior Court for such an evidentiary hearing. CONCLUSION Dr. Doe respectfully asks this Court to overturn the decision below and to find that he is a psychotherapist and that the records sought by the Board are protected by the psychotherapist-patient privilege and Massachusetts privacy law. In the alternative, Dr. Doe asks that the matter be remanded to the Superior Court with instructions to permit Dr. 42