St. Luke Institute, Inc. v. Andre Jones , No. 3331, Sept. Term, 2018

Opinion by Shaw Geter, J. Civil

– Confidentiality of Medical Records Act

– Mental Health Records

– Production to Third Party

– In
- Camera Review When ordering a medical provider to produce a patient’s confidential medical health records, the party seeking the records must show some connection between the records sought, the issue before the court, and the likelihood that information relevant to the trial would be discovered. Circuit court did not err or abuse its discretion in ordering medical provider to produce deceased patient’s mental health records for a civil action against patient’s former employers alleging n egligent supervision and/or hiring of patient, where party seeking records provided evaluation reports performed by medical provider and sent to patient’s former employers that may have indicated patient was at a greater risk of sexually abusing children. Circuit court did not err or abuse its discretion in ordering medical provider to produce patient’s confidential medical health records to foreign court. However, pursuant to the Confidentiality of Medical Records Act, the circuit court was required to perform an in

- camera review of the records to order the production of only that portion of the records the court deemed relevant to the reason for which they were sought. Any records determined by the court to be relevant to a claim or defense in the unde rlying action should be produced, while that portion of the records “not even arguably relevant and usable” should remain confidential and not subject to discovery.Circuit Court for Prince George’s County

Case No. CAL18

- 40657 REPORTED IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No. 3331 September Term, 2018

__________________________________________ ST. LUKE INSTITUTE, INC.

v. ANDRE JONES

_________________________________________ Meredith , Shaw Get er, Salmon, James P. (Retired Judge, Specially Assigned) ,

JJ.

___________________________________________

Opinion by Shaw Geter, J.

___________________________________________ Fil ed: September 12, 2019This appeal arises from an order of the Circuit Co urt for Prince George’s County

requiring that St. Luke Institute, Inc., appellant, produce the mental health records of
Brother Edward Anthony Holmes to the Superior Court of the Commonwealth of
Massachusetts

. In 2017, Andre Jones , appellee, brought a civil lawsuit, currently pending in the Commonwealth of Massachusetts, naming the Roman Catholic Archbishop of
Boston and the Congregation of Sacred Hearts as defendants . The suit alleged that Jones, as a minor, was repeatedly sexually assaulte d and sexually abused by Brother Holmes
between 1978 and 1982 . The allegations include causes of action for negligent hiring and negligent supervision of Holmes. During discovery in that lawsuit, it became known that Brother Holmes underwent psychotherap y at St. Luke Institute in the early 1990’s. Jones filed with the circuit court a motion requesting the court order St. Luke Institute to produce Brother Holmes’ mental health records. St. Luke Institute filed a motion in opposition . The circuit court issued a memorandum opinion and order directing
St. Luke Institute to transfer Brother Holmes’ entire mental health record under seal to the Clerk of the Massachusetts Superior Court.
St. Luke Institute then moved the circuit court to reconsider its ruli ng and vacate the order or, alternatively, to stay the order pending appeal. The circuit court denied St. Luke Institute’s motion. St. Luke Institute noted this appeal, and presents the following questions for our review, which we have rephrased and cons olidated for convenience : 1

1 St. Luke Institute original ly presented the following questions for our review: 1. What does the Confidentiality of Medical Records Act require when the production of mental health records are requested? 2. When is there a compelling State interest to o vercome the right of privacy in medical (here mental health ) records? 3. How does a2

1) Did the circuit court err or abuse its discretion in ordering St. Luke Institute to produce Brother Holmes’ mental health records ? 2) Did the circuit court err in ordering Brother Holmes’ entire mental health record be filed under seal to the Superior Court of the Commonwealth of Massachusetts? 3) How does a Maryland trial court determine what confidential information is to be released wh en requested in discovery ?

BACKGROUND
A. The Underlying Massachusetts Action

. In 2017, Andre Jones filed a civil lawsuit (the “Massachusetts Action”) , as lead plaintiff, in the Massachusetts Superior Court, Trial Division (the “Massachusetts Court”), naming as defendant s the Roman Catholic Archbishop of Boston and the Congregation of
Sacred Hearts

. 2 The Massachusetts Action alleges, in part, that Jones , as a minor, after having been removed from the custody of his parents and placed by the Commonwealth of
Massachusetts in the Nazareth Child Care Center in Jamaica Plain, Massachusetts (“Nazareth”) and while a Nazareth resident, suffered repeated sexual assault and abuse by

Maryland trial court determine what information is to be released when records that are made confidential by statute (here, mental health records) are to be produced? 4. Wh o makes the release decision

– can a Maryland trial court delegate its responsibilities under the Confidentiality of Medical Records Act and the standards for production mandated by the Court of Appeals for confidential material to a foreign court simply b ecause the request is initiated from a foreign court?

2 Brother Holmes was not named in the lawsuit, a s he was deceased at the time the complaint was filed.3

Brother Holmes, a Nazareth counselor. 3 The complai nt included causes of action for negligent hiring and negligent supervision of Holmes. Documents produced in discovery by the Congregation of Sacred Hearts noted that
Brother Holmes had underwent psychotherapy at St. Luke Institute , Inc. (“SLI”) in the

e arly 1990’s. SLI , located in Maryland, is a “Catholic organization with 40 years of experience treating Catholic clergy” and “offers a full range of psychological screening, treatment and education services for catholic clergy.” According to the document s produced by the Congregation of Sacred Hearts, two psychiatric evaluation reports on Brother Holmes were written by SLI employees , respectively dated Jun e 28, 1991 and November 8, 1993

. The produced documents highlighted and summarized a “caution” contained in the 1993 report generated by SLI , stating, “There are no reported signs that [Brother Holmes] has been sexually inappropriate. However, we would caution [Holmes] and his order: the re are many signs of risk that should not be lightly di smissed.” The report also noted that Holmes “[h]a[d] not worked through his experience of being molested as a child.” After the existence of the 1991 and 1993 reports became known to Jones, he
reques ted that the reports and associated records be produced by the named parties. Jones was informed that the mental health evaluation reports had been destroyed by the Roman Catholic Archbishop of Boston and the Congregation of Sacred Hearts in the early 200 0’s.

3 There are three other consolidated companion cases pending along with Jones’ case in the Massachusetts Court . Each plaintiff alleges similar child sexual assault and abuse perpetrated upon them by Brother Holmes while each was a minor and resident of Nazareth.4

In 2006, Brother Holmes’ abuse of minors at N azareth became public knowledge.
H e was arrested, charged, and pled guilty to seventeen counts involving sexual assault of
minors while they were residents at Nazareth. On April 6, 2011, Brother Holmes died.
B. The Action in the Circuit Court. Jones, pursuant to a Letter of Rogatory of the Massachusetts Court , sought a subpoena from the Circuit Court for Prince George’s County requesting SLI produce
Broth er Holmes’ mental health records

. SLI opposed the motion, arguing that the subpoena was improperly before the court pursuant to Md. Code (2000, 2009 Repl. Vol.) , Health
General (“H. G.”) , § 4

- 307.
Jones then filed with the circuit court a request for an Order to Produce Mental
Health Records. SLI filed a motion opposing the request, arguing that the circuit court would need to examine the pleadings in the Massachusetts Action to properly determine whether Brother Holmes’ mental condition had been raised and whether such evidence was
relevant. In a memorandum opinion, dated January 23, 2019, the circuit court wrote: This court does not believe that two separate courts are required to review what are likely extensive pleadings in order to adjudicate this discovery request. To do so is contrary to the interests of judicial economy, especially as the [Massachusetts Cour t] can and will be the ultimate gatekeeper of evidence at trial. Furthermore, given the evidence that has already been provided to this court, evidence of whether Brother Holmes’ propensity towards sexual assault was known to his employer is likely within the records sought. In balancing the factors considered in determining whether a patient’s right to privacy in their health records could be overcome, there is a compelling state interest in aiding [Jones] to obtain the requested records. This case is o ne of5

the predatory sexual assault of minors, and there are multiple alleged victims, at least one of whom was sent to this institution by the state itself. [Jones] in this instant case was taken from the custody of his parents by the Commonwealth of Mass achusetts, and place[d] in the care of Brother Holmes. Lastly, the records requested do not at this time injure or embarrass Brother Holmes, who is now deceased and who previously admitted to rape and sexual assault of minors. There are thus compelling f actors towards ordering the release of this requested information, with the [Massachusetts Court] as gatekeeper and safeguard for [ SLI ]. In an order accompanying the memorandum opinion, the circuit court directed SLI to produce, under seal, Broth er Holmes ’ mental health record s to the Clerk of the
Massachusetts Court

. SLI filed with the circuit court a motion for reconsideration and request to vacate the January 23, 2019 order or, alternatively, to stay the order pending appeal. The circuit
court denied t he motion in total. SLI timely appealed the circuit court’s decision and filed with this Court a motion to stay the production of the mental health records pending the appeal, which this Court granted. STANDARD OF REVIEW Ordinarily we review a trial court’s ruling on a motion to quash a subpoena for an abuse of discretion. See Doe v. Maryland Bd. of Social Workers , 154 Md. App. 520, 527

– 28 , 840 A.2d 744, 749 (2004); WBAL

- TV Div., Hearst Corp. v. Stat e, 300 Md. 233, 246 , 477 A.2d 776, 783 (1984) (holding no abuse of discretion in denial of TV station’s motion, based on a qualified First Amendment privilege, to quash summons by the State to produce unbroadcast portions of a videotaped interview with a criminal defendant for possible use at trial). Generally, an abuse of discretion occurs where “ no reasonable person would take6

the view adopted by the [trial] court.” Metheny v. State , 359 Md. 576, 604 , 755 A.2d 1088,
1104 (2000) (internal quotations omitted) (brackets in original)

. However, SLI con tends the circuit erred as a matter of law by releasing Brother Holmes’ entire medical health record to the Massachusetts Court rather than limiting its release to the portion of the
record s deemed relevant to the Massachusetts Action as required by H.G. §§ 4

- 301 et seq. , the Confiden tiality of Medical Records Act (the “Act”). And, w hen the ruling “involves an interpretation and application of Maryland statutory and case law, ” as it did here, “ we must determine whether the trial court’s conclusions a re legally correct under a de novo standard of review.” Johnson v. Francis , 239 Md. App. 530, 542 , 197 A.3d 582, 590 (2018) (internal quotations omitted). DISCUSSION
I. Did the circuit court err or abuse its discretion in ordering SLI to produce Broth er Holmes’ mental health record s ? Pursuant to the Act, the medical records of a patient are confidential and, ordinarily, a health care provider may not disclose a patient’s record to a third party without the patient’s permission

. H.G. § 4

- 302(a). H owever, “[a] health care provider shall disclose a medical record without the authorization of a person in int erest . . . in accordance with

. . . a court order that appears on its face to have b een issued on lawful authority .” H.G. § 4

- 306(a) and (b)(6). Thus, t he circuit court had the authority to order SLI to produce Brother
Holmes ’ confidential mental health record s
. 4

4 No party disputes that the requirements for the unauthoriz ed disclosure of a medical record in accordance with compulsory process, i.e. a court order, set forth in H.G. § 4

- 306 (b)(6)(i)

– (ii) , were met.7

We now consider whether the circuit court abused its discretion in ordering SLI to
p roduce the mental health record s
. “In Maryland, the rules of discovery, governed by Chapter 400 of Title 2 of the Maryland Rules, ‘ were deliberately designed to be broad and comprehensive in scope. ’ ” Gallagher Evelius & Jones, LLP v. Joppa Drive

- Thru, Inc. , 195 Md. App. 583, 595 , 7 A.3d 16 0, 167 (2010) (quoting Ehrlich v. Grove , 396 Md. 550, 560 , 914 A.2d 783, 790 (2007)) (internal quotations omitted). “That broad scope of discovery is described as allowing [a] party [to] obtain discovery regarding any matter that is not privileged . . . i f the matter sought is relevant to the subject matter involved in the action,
whet her it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Id

. (quoting Fal i k v. Hornage , 413 Md. 163 , 182 , 991 A.2d 1234, 1246 (20 10) (quoting Md. Rule 2

- 402)). However, where the information sought to be discovered is confidential, as Brother Holmes’ mental health record s are here, an additional hurdle is present. In G oldsmith v.
State , 337 Md. 112 , 651 A .2d 866 (1995), the Court of Appeals stated, To be sure, a party to ongoing litigation may subpoena, without advance notification having to be given to the other party, a third party’s records for use at trial. When, however, the records sought are “confi dential,” before disclosure will be ordered, the moving party must show, usually at a hearing, some connection between the records sought, the issue before the court, and the likelihood that information relevant to the trial would be discovered.
Id

. at 127

– 28 , 651 A.2d at 874 ( quoting Zaal v. State , 326 Md. 54, 83 , 602 A.2d 1247, 1261 (1992) ) (emphasis in original ) . It is the party seeking disclosure of the confidential material that bears the burden of establishing the need for pre

- trial disclosure

. Id. at 128 , 651 A.2d

at 874

.8

Jones met his burden in establishing the need for pre

- trial disclosure of Brother Holmes’ mental health record s
. Jones informed the circuit court of the two mental health evaluations of Brother Holmes conducted by SLI in 1991 and 1993. Reports from these
evaluatio ns, which the Congregation of S a c red Heart freely disclosed to Jones, indicated that Holmes presented “many signs of risk that should not be lightly dismissed.” The report s evidence d that Holmes disclosed to SLI that he had been “molested as a child,” and
that Holmes had “not work ed through” that experience. Further notes from a treatment plan meeting with Holmes and SLI employees indicate d that he had had a “suspicious nature,” that “[his] repression [was] not a good thing,” and that he “need[ed] to continue therapy, possibly for a long time.” The mental health records are likely relevant to the Massachusetts Action. The
Massachusetts Action alleged Brother Hol m es’ former employers negligent ly hired and supervised him

. The former employers’ knowledge of Holmes’ mental state prior to his becoming a member of the Congregation of Sacred Heart and during his assignment at Nazareth are relevant to determining whether he was hired and/or supervised in a neglig ent

manner. As we see it, the circuit court did not abuse its discretion in finding that, based on the two reports and averments made by Jones, Holmes’ mental record s with SLI were likely
relevant to the Massachusetts Action and subject to discovery.
SLI argues the circuit court erred in ordering it to produce the mental health records
because the records we re privileged. In Doe v. Maryland Bd. of Social Workers , 154 Md. App. 520 , 840 A.2d 744 (2004), we addressed the distinction between ‘confidential’ and

‘ privileged ’ material:9

There is a difference between a ‘confidential’ medical record and a ‘privileged’ communication. Information can be confidential and, at the same time, non

- privileged. Privilege is the legal protection given to certain communications and relationships, i. e. , attorney

- client privilege, doctor

patient privilege , and marital privilege. Confidential is a term used to describe a type of communication or relationship. Privilege statutes must be narrowly construed.
Id. at 528 , 840 A.2d at 749 (internal quotati ons and citations omitted)

. “The burden of substantiating non

- discoverability is upon the party to whom the discovery request is directed . . . and the burden cannot be met by ‘conclusory allegations or mere assertions.’” Gallagher Evelius & Jones, LLP , 1 95 Md. App. at 598 , 7 A.3d at 168 (quoting Ashcraft &
Gerel v. Shaw , 126 Md. App. 325, 350 , 728 A.2d 798 , 811 (1999)). Maryland acknowledges t he patient

- therapist privilege. “ Unless otherwise provided, in all judicial . . . proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to preve nt a witness from disclosing [c]ommunications relating to diagnosis or t reatment of the patient; or [a]ny information that by its nature would show the existence of a me dical record of a diagnosis or treatment.” Md. Code (1973, 2013 (Repl. Vol., 2018 Supp.) , Courts & Judicial Proceedings, § 9

- 109(b)(1)

– (2). “ The privilege belong s to the patient to assert, not to the psychiatrist [or psychologist].” Eiler v. State , 63 Md. App. 439, 445 n. 6 , 492 A.2d 1320, 1322 (1985) (citing Sha w v. Glickman , 45 Md. App. 718, 415 A.2d 625, cert. denied , 288 Md. 742 (1980)); see also Ali v. State , 199 Md. App. 204, 224 , 21 A.3d 140, 152 (2011). I n this case, neither Brother Holmes nor his personal representative or other person in interest 5

5 A “person in interest ” means a n adult on whom a health care provider maintains a medic al record; a person authorized to consent to health care for an adult consistent with10

asserted the privilege to prevent the disclosure of his mental health record s with SLI

. Thus, the records were not privileged from disclosure. 6
II. Did the circuit court err in ordering Brother Holmes’ entire mental health record be filed under seal to the Massachusetts Court ? SLI argues the circuit court erred in ordering Brother Holmes’ entire mental health record be produced under seal to the Massachusetts Court for that court’s determination as to what portion of the record s were relevant to the Massachusetts Action and should then be released to the parties. It contends that, pursuant to the Act, the circuit court was required to order the release of only that portion of the mental health re cord s that it deemed relevant to the Massachusetts Action and no more. Conversely, Jones asserts the circuit
the authority granted; a duly appointed person al represen tative of a deceased person; a minor, if the medical record concerns treatment to which the minor has the right to consent and has consented; or an attorn ey appointed in writing by a person listed previously . H.G. § 4

- 301(m).

6 We recognize that Brother Holmes, or a party in interest, may argue against disclosure based on his constitutional right to privacy in his medical records

. See Dr. K. v. State Bd. of Physician Quality Assur. , 98 Md. App. 103, 112, 632 A.2d 453, 457 (1993) (holding patient had right to privacy in her medical psychiatric records). However, “Maryland appellate courts adhere[] to the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non

- constitutional ground.” Comptroller of the Treasury v. Zorzit , 221 Md. App. 274, 308 , 108 A.3d 581, 601 (2015) (quoting McCarter v. State , 363 Md. 705, 712, 770 A.2d 195, 199 (2001) (i nternal quotations omitted) (brackets in original). “ T he ‘strong and established policy is to decide constitutio nal issues only when necessary.’ ” Id. (quoting VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene , 406 Md. 584, 604 , 961 A.2d 557, 569 (200 8)). Accordingly, because no party with the requisite standing advances such an argument in this case, we decline to engage in any discussion on the issue. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 2134 (1992) (requiring plaintiff to have suffered an “injury in fact”

— an invasion of a legally protected interest

— to have standing to bring cause of action).11

court was correct in ord ering the mental health records be produced in full under seal to
the Massachusetts Court for its determination as to the records to be released because that court more thoroughly underst an d s the aspects of the case and, thus, the interests of judicial economy were served. The Act provides, “[w]hen a medical record developed in connection with the provision of mental health s ervices 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.” H.G. § 4

- 307(c). Thus, while SLI was required to produce the
mental health records pursuant to the circuit court’s order, because neither Brother Holmes nor his personal representative authorized the disclosure, the circuit court may only require
release of that portion of the records relevant to the Massachusetts A ction. Accordingly, it was necessary for the circuit court to review and determine what portion of the mental
health record s was relevant to the Massachusetts Action and what was not.
III. How does a Maryland trial court determine what confidential information is to be released when requested in discovery ? SLI claims the circuit court was required to conduct an in

- camera review of Brother Holmes’ mental health record s to determine what portion thereof was relevant to the Massachusetts Action and should thereby be pr oduced in discovery . We agree.
In

- camera review is a procedure often used by trial courts to review privileged or
confidential information to determine whether that information is subject to discovery by another party. Zaal v. State , 326 Md. 54 , 88 , 602 A.2d 1247, 1264 (1992) ( holding in

camera review was appropriate to determine discoverability of victim’s educational12

records); s ee also Reynolds v. State , 98 Md. App. 348, 36 8 , 633 A.2d 455, 464 (1993) (holding in

- camera review by the trial court was appr opriate to determine whether patient’s privileged hospital records were subject to discovery by defendant)

. In Zaal v. State , supra , the Court of Appeals explained the process of in

- camera review and the trial court’s role , stating: In cases in which access to confidential and/or sensitive records is sought by a [party] and which will be resolved based on credibility considerations, because of which, the trial court determines the ‘need to inspect’ threshold has been crossed, the cour t may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records’ confidentiality . . .
In any case, when the court reviews the records alone, it must approach its task cognizant of the fact that it is not an advocate and, in most instances, will not, and, indeed, cannot be expected, to discern all the nuances or subtleties which may render an innocuous bit of information relevant to [a claim or defense] . Thus the court’s review is not to determine whether, and, if so, what, is ‘directly admissible;’ rather, it is to exclude from the parties ’ review material that could not, in anyone’s imaginat ion, properly be used in [a claim or defense] or lead to the discovery of usable evidence. Only when the records are not even arguably relevant and usable should the court deny the [party] total access to the records . . . The trial court’s review shoul d not only be aimed at discovering evidence directly admissible but also that which is usable for impeachment purposes, or that which would lead to such evidence.
326 Md. at 87

– 88 , 602 A.2d at 1264

. “ It is for the trial judge, not for the patient or the health care provider, to determine what records will be reviewed.” Reynolds , 98 Md. App.
at 368

– 69 , 633 A.2d at 464

. During in

- camera review of the mental health record s , the trial court must determine what portion of the record s is relevant to the Massa chusetts Action. “The records that are13

reviewed but ‘are not even arguably relevant and usable’ shall . . . be sealed [

. ] ” Id. at 369 , 633 A.2d at 465 . Those that are determined to be ‘relevant and usable’ shall, ordinarily, be “revealed to counsel in the ir roles as officers of the court.” Id. at 3 6 7 , 633 A.2d at 465

. However, in this case, we believe it appropriate that the circuit court order the portion of Brother Holmes’ mental health record s deemed relevant to the Massachusetts Action be produced under seal to the Massachusetts Court for that court’s determination as to what
should be released to counsel. For the foregoing reasons, we reverse the decision of the circuit court and remand
this case for further proceedings consistent with this opinion. JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE.