                             [J-98-2018] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


    IN RE: PETITION FOR ENFORCEMENT            :   No. 35 EAP 2016
    OF SUBPOENAS ISSUED BY THE                 :
    HEARING EXAMINER IN A                      :   Appeal from the Order of the
    PROCEEDING BEFORE THE BOARD                :   Commonwealth Court entered on
    OF MEDICINE                                :   September 1, 2016, at No. 373 M.D.
                                               :   2016, granting the Petition to Enforce
                                               :   Subpoenas.
    APPEAL OF: M.R.                            :
                                               :   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.
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.] - 2
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.


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