January 4, 2021

The Court of Appeals of Maryland (“Maryland Appellate Court”), the highest appellate court in Maryland, decided the following two questions in an opinion filed on November 20, 2020: (1) what is the legal standard to be applied under the Maryland Confidentiality of Medical Records Act, Maryland Code (2000, 2019 Repl. Vol.), Health General (“HG”) §§ 4-301 through 309 (“Confidentiality Act”), when a private party in a civil case seeks discovery of a patient’s mental health records where the patient has not authorized the disclosure, and (2) does the custodian of the records have standing to raise the patient’s privacy rights or other legal opposition to disclosure on the patient’s behalf?

The two questions arose in the context of a civil case filed in Massachusetts in which the plaintiffs alleged that they were sexually abused by a brother or member of a religious order while they were minor children residing in a children’s group home that employed the brother. The Massachusetts plaintiffs filed a proceeding in Maryland seeking discovery of the brother’s mental health records that they believe are in the custody of Saint Luke Institute, Inc. (“SLI”), a facility located in Maryland. After considering the plaintiffs’ motion for a court order to produce the records and SLI’s opposition to disclosure, the Circuit Court for Prince George’s County entered an order directing that SLI produce the brother’s mental health records under seal to a Massachusetts court. Prior to ordering the disclosure of the records, the circuit court did not review the pleadings in the Massachusetts case, nor did the court conduct an in camera review of the records. SLI appealed the order to the Court of Special Appeals, which reversed the judgment and remanded the case for further proceedings.

Maryland Appellate Court Opinion

The Court of Appeals explained that the Maryland discovery rules, the Confidentiality Act, and case law establish the framework for a trial court to apply when balancing the civil litigant’s need to obtain relevant, discoverable information against the patient’s privacy interests in the confidential mental health records. The Confidentiality Act, HG §§ 4-301 through 4-309, addresses the confidentiality of medical records in general. HG § 4-302(a) requires health care providers to keep medical records confidential, and allows disclosure only as provided by Maryland law. The Confidentiality Act contains more restrictive provisions for the disclosure of mental health records than its federal counterpart (HIPAA), and therefore is controlling.

Unlike other types of medical records that may be disclosed to a third party by subpoena, pursuant to HG § 4-307, a court order is required where the disclosure of mental health records is sought by a private litigant in a civil proceeding in which the person in interest has not authorized the disclosure. Furthermore, the Confidentiality Act provides that “[w]hen a medical record developed in connection with the provision of mental health services is disclosed without the authorization of a person in interest, only the information in the record relevant to the purpose for which disclosure is sought may be released.” HG § 4-307(c).

The Court of Appeals stated, “Taken together, where a private party litigant seeks the disclosure of mental health records and the person in interest has not authorized the disclosure, given the conditions and limitations imposed by the General Assembly in HG § 4-307: (1) the party seeking their disclosure must file a motion requesting a court order compelling their disclosure; and (2) prior to the court authorizing the disclosure pursuant to a court order, the court must undertake an examination of the documents sought to be disclosed and any other necessary information in order to make a relevancy determination and to ensure that it limits disclosure only to the information that may be relevant … In considering whether the party seeking the records has a need for access to the records, the court should consider the nature of the underlying litigation, the relationship between the records and any claim or defense, and the likelihood that review of the records would result in the discovery of relevant information … Once the movant makes a threshold proffer sufficient to enable the court to determine that there is a “need to inspect,” the court must undertake an examination of the documents sought to be disclosed to ensure that the records sought are, in fact, relevant, and that the court limits disclosure only to the information that may be relevant … The court’s role is not to determine whether the records are admissible, but rather, could the records lead the movant to the discovery of usable evidence.”

The Court of Appeals further stated, “In response to a motion seeking a court order compelling or authorizing the disclosure of mental health records, the Confidentiality Act also provides a health care provider, recipient, or person in interest with the right to object to the disclosure. HG § 4-307(k)(6). … Where a third party is seeking a patient’s confidential mental health records in the possession of a third party health care provider, the General Assembly has expressly granted standing to the “health care provider, a recipient, or person in interest” to “assert[] in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure.” HG § 4-307(k)(6). … As part of the proceeding, a health care provider custodian or person in interest may object to the disclosure by filing a motion for protective order … Accordingly, although Brother Holmes’ constitutional rights are not implicated by the discovery request, to the extent that his privacy rights are protected by statute, SLI would have standing to ensure that the statutory provisions concerning disclosure, and the protections afforded by the Confidentiality Act, are followed.”

The Maryland Appellate Court held: “The circuit court erred by failing to conduct the necessary statutory relevancy analysis required by HG 4-307(c). Remand is appropriate for the court to review the complaint filed in the Massachusetts Action, and to conduct an in camera review of the mental health records. Assuming the court determines that the records are relevant, it should enter an appropriate order transferring the relevant portions of the records under seal to the Massachusetts Court for further proceedings.”

Source Saint Luke Institute, Inc. v. Andre Jones, No. 62, September Term, 2019.

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