[J-98-2018] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN RE: PETITION FOR ENFORCEMENT 

OF SUBPOENAS ISSUED BY THE 

HEARING EXAMINER IN A 

PROCEEDING BEFORE THE BOARD 

OF MEDICINE

APPEAL OF: M.R.

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No. 35 EAP 2016

Appeal from the Order of the 

Commonwealth Court entered on 

September 1, 2016, at No. 373 M.D. 

2016, granting the Petition to Enforce 

Subpoenas.

ARGUED: December 5, 2018

CONCURRING OPINION

JUSTICE DOUGHERTY DECIDED: August 20, 2019

I join the majority opinion and write separately to highlight the procedural vacuum 

exposed by the underlying factual scenario.

1

 In this case, Dr. DeMichele requested and 

obtained the issuance of subpoenas by the Board of Medicine hearing examiner in 

disciplinary proceedings related to her own professional conduct. These subpoenas were 

directed to individuals with an extremely attenuated connection to the Board proceedings 

— other physicians who also treated M.R. — and whose impressions or opinions, and 

records of treatment, are obviously subject to psychotherapist/patient privileges. 

Ostensibly, Dr. DeMichele sought to use testimony and confidential records from these 

physicians to defend her treatment of M.R. As M.R. did not waive the confidentiality of 

her relationship with these other physicians by authorizing their participation, they 

understandably refused to respond to the subpoenas, and Dr. DeMichele filed a “petition 

 

1 Although I respectfully disagree with the dissenting position taken by Chief Justice 

Saylor, I recognize he has nevertheless persuasively outlined some of the statutory 

inadequacies leading to the present appeal. Dissenting Op. at 4-6.
[J-98-2018] [MO: Wecht, J.] - 2

for enforcement” in Commonwealth Court. The majority opinion ably explains why this 

filing — and the Commonwealth Court’s resulting enforcement order — were improper. 

What remains unclear is whether the subpoenas should have been issued at Dr. 

DeMichele’s request in any event. See, e.g., 63 P.S. §422.9(c) (describing Board 

authority to issue subpoenas upon application of attorney representing Commonwealth

in disciplinary matters; consent of patient or court order required); 63 P.S. §2202 

(Commonwealth attorney may obtain subpoena in disciplinary proceeding with patient’s 

consent). See also Appellant’s Supplemental Reply Brief at 12 (noting Board of Medicine 

indicated its investigation did not reveal “any prior case in which a private individual . . . 

sought enforcement of a hearing subpoena issued by the Board”). The relevant statutory 

mechanisms appear to contemplate proceedings arising from a complaint by a patient, 

who would accordingly waive at least some confidentiality, rather than the report of a 

treating physician, as occurred here. And, finally, if the subpoenas should not have been 

issued in the first place, it is unclear where and by whom a challenge might have been

lodged.

2

 In my view, a motion to quash the subpoenas duly filed with the Board might

have succeeded on numerous grounds, including relevance and privilege. See, e.g., 63 

P.S. §422.9(c) (“Medical records may not be subpoenaed without consent of the patient 

or without order of a court of competent jurisdiction on a showing that the records are 

 

2 More specifically, while I recognize and generally agree with the dissent’s evaluation of 

Dr. DeMichele’s standing — or lack thereof — to file an enforcement petition in

Commonwealth Court, it begs the question who would be in the position to challenge Dr. 

DeMichele’s standing. The Commonwealth Court enforcement action was not a 

traditional adversarial proceeding where an opponent might challenge procedural 

defects. In fact, while M.R. was permitted to intervene in that enforcement action, her 

physicians, whose records and testimony were the subject of the subpoenas, were not 

named as parties, were not served with the enforcement petition, and were not provided 

notice of the related hearing. It appears there is a procedural void in the statutory regime 

currently applicable to the circumstances, which should be addressed by the General 

Assembly.
[J-98-2018] [MO: Wecht, J.] - 3

reasonably necessary for the conduct of the investigation.”); 42 Pa.C.S. §5944

(psychotherapist/patient privilege); 50 P.S. §7111(a)(1) (confidentiality of treatment 

records).3

 

3 A subsequent appeal from the hypothetical Board decision to quash or not to quash 

might then properly lie in the Commonwealth Court’s appellate jurisdiction. See, e.g., 42 

Pa.C.S. §933 (appeals from government agencies); Pa.R.A.P. 341(c) (issuing tribunal 

may designate order that does not dispose of all claims and all parties as final for 

purposes of immediate appeal). Although the General Assembly has invested the courts 

of common pleas with appellate jurisdiction over certain determinations by 

Commonwealth agencies, see 42 Pa.C.S. §933(a)(1), these courts do not have 

jurisdiction over appeals in professional licensing disciplinary matters. See also

Dissenting Op. at 4-5 n.3.