In its opinion filed on October 1, 2015, the Court of Special Appeals of Maryland (“Appellate Court”) found in favor of the Maryland Board of Physicians (“Board”) in a discovery dispute involving a disciplined Maryland physician, stating that if the government asserts executive or deliberative privilege in a case in which the government itself is a party, or in which the government has been accused of wrongdoing, the circuit court should weigh the need for confidentiality against the litigant’s need for disclosure and the impact of nondisclosure upon the fair administration of justice.
The Deliberative Privilege
The Appellate Court stated that it is apparent from the very nature of government that legitimate necessity exists for the protection from public disclosure of certain types of official information. The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action. A fundamental part of the decisional process is the analysis of different options and alternatives. Advisory communications, from a subordinate to a governmental officer, which examine and analyze these choices, are often essential to this process. The making of candid communications by the subordinate may well be hampered if their contents are expected to become public knowledge. In general, the judiciary is not authorized to probe the mental processes of an executive or administrative officer.
The Underlying (Extensive) Facts
As stated in the Appellate Court’s October 1, 2015 opinion:
Mark Geier, M.D. (“Dr. Geier”) was a Maryland licensed physician who advocated the theory that certain vaccines cause autism in genetically susceptible children. In a case concerning the admissibility of expert testimony, the Court of Appeals had held that “Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it.”
In protracted and contentious disciplinary proceedings, the Board established that Dr. Geier committed numerous violations of the Medical Practice Act, HO §§ 14-401 et seq., in his treatment of autistic children. Dr. Geier contended that the Board acted against him out of a desire to punish him and to discredit his research.
The Board summarily suspended Dr. Geier’s right to practice medicine, asserting that the “public health, safety or welfare imperatively required emergency action.” The Board formally charged Dr. Geier with violations of the Medical Practice Act and alleged his unprofessional conduct in the practice of medicine; willfully making or filing a false report or record in the practice of medicine; willfully failing to file or record any medical record as required under law; practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine (i.e., his son, David Geier); gross over-utilization of health care services; failing to meet standards, as determined by peer review, for the delivery of quality medical care; and, failing to keep adequate medical records.
After six days of hearings, an administrative law judge (“ALJ”) issued a proposed decision upholding the summary suspension of Dr. Geier’s license. After five additional days of hearings, the ALJ recommended that Dr. Geier’s license be revoked.
Dr. Geier took exceptions to the ALJ’s recommendations but the Board nonetheless issued a final decision ordering that Dr. Geier’s license be revoked. The Circuit Court for Montgomery County affirmed the Board’s final decision and the Appellate Court subsequently affirmed as well.
While the disciplinary proceedings were pending, the Board issued a cease and desist order that accused Dr. Geier of practicing medicine at a time when his license had been summarily suspended. The order, which was posted to the Board’s website and could be viewed by the public, specifically alleged that Dr. Geier had written prescriptions for himself, his son David, and his wife Anne. The order also detailed the Geiers’ confidential medical information, identifying the specific medications that Dr. Geier had allegedly prescribed for each person and describing the medical conditions that each medication typically treated. Although the Board claimed that it had the right to post the Geiers’ confidential medical information to its website, it promptly removed the information when the Geiers protested.
While Dr. Geier was pursuing his petition for judicial review of the Board’s rulings against him, he and his wife filed a three-count complaint in the Circuit Court for Montgomery County, naming the Board and each of its members, its administrative prosecutor, and two staff members as defendants, alleging that by disclosing the Geiers’ confidential medical information, the defendants had deprived them of their constitutional right to privacy; violated the Maryland Confidentiality of Medical Records Act; and, committed the tort of invasion of privacy by giving unreasonable publicity to private facts. The complaint alleged that the defendants “acted with ill will and with the intent to injure Plaintiffs by exposing Dr. Geier’s personal medical information and that of his wife and son.” The Geiers requested compensatory damages as well as $3 million in punitive damages.
The Board moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The circuit court subsequently dismissed the Confidentiality of Medical Records Act claim, explaining that the statute does not create a private right of action, but declined to dismiss the constitutional claim and the invasion of privacy claim.
Dr. Geier sought extensive discovery from the defendants, attempting to find any evidence that might show that the Board acted out of animosity towards him. Dr. Geier did not limit his discovery requests to the specific circumstances immediately surrounding the Board’s disclosure of the Geiers’ confidential medical information but sought documents and testimony that revealed the Board’s decisional processes in the administrative proceedings against him. Dr. Geier also sought communications between the Board and its counsel that related to the Board’s proceedings. Dr. Geier filed multiple motions to compel and motions for discovery sanctions which the circuit court granted but did not specify a sanction. The circuit court also granted Dr. Geier’s motion to compel putatively privileged documents.
Dr. Geier filed a third motion to compel concerning two classes of documents: the Board’s administrative investigatory file in its disciplinary proceedings against Dr. Geier’s partner, John L. Young, M.D., and communications between the Board’s attorneys and defendant Joshua Shafer, an investigator for the Board. Dr. Geier argued that the Board had proceeded against his partner, Dr. Young, as part of its campaign to discredit their research. The Board opposed the production of the deliberations in Dr. Young’s case on a number of grounds, including the deliberative privilege, the attorney-client privilege, the work-product protection, and HO § 14-410, which states that, generally, “[t]he proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies are not discoverable and are not admissible in evidence[.]” Following a hearing, the circuit court granted Dr. Geier’s motion and compelled the disclosure of all of the requested documents. The Board appealed that order.
Source Maryland Board of Physicians, et al. v. Anne Geier, et al.
If you or a loved one suffered serious harm that may be due to medical negligence by a physician in Maryland or in another U.S. state, you should promptly find a Maryland medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case against a physician, if appropriate.
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