Banks v. Board of Physician Quality Assurance

THIEME, Judge. Appellant, Lester H. Banks, M.D., appeals from a judgment of the Circuit Court for Carroll County, sitting as an appellate ²⁵² court, affirming the decision of appellee, the Board of Physician Quality Assurance (BPQA). In this case, we must decide whether a physician’s sexual harassment of hospital employees, which occurred while the physician was working in a hospital but not while he was treating patients, was “conduct within the practice of medicine.” We conclude that some of the doctor’s actions constituted conduct within the practice of medicine and thus were subject to disciplinary action, because they occurred during the diagnosis, treatment, or care of patients. Because the circuit court found that all misconduct was during the practice of medicine, we affirm in part and reverse in part and remand the case to the BPQA to determine the appropriate punishment.

Dr. Banks’s appeal arises under the following circumstances. Dr. Banks was and is licensed to practice medicine in Maryland. In 1986, Professional Emergency Physicians, Inc. (PEP), which provided emergency department physicians and physicians’ assistants to four Maryland hospitals, employed Dr. Banks to serve as house physician at Carroll County General Hospital (CCGH). As a house physician, Dr. Banks was expected to work 12 hour shifts and perform duties including the following: admitting patients for private attending physicians; writing histories and physicals or admitting notes; writing admitting orders to facilitate the patient’s admission to the hospital; assisting in the operating room; caring for any acute patient problems or any non-acute problems at the request of the attending physicians; and, at times of high volume, assisting in the emergency department.

Because house physicians were new to CCGH when Dr. Banks began, the hospital staff was unsure which tasks were to be delegated to the house physician. This resulted in minimal use of Dr. Banks by the medical staff and significant down time for him. As a result of the underutilization, Dr. Banks would often agree to work 24 and 36 hour shifts. When on duty, Dr. Banks was not free to leave the hospital and was expected to be available at all times.

But when he was not ²⁵³ involved in patient care, he was free to sleep, eat, watch television, use the telephone, and read in the lounge. Often, during his “down time,” he would circulate around the building and chat with hospital staff. Incidents of Sexual Harassment 1 Of the five women whom Dr. Banks admittedly harassed, three testified against him at the BPQA hearing before an Administrative Law Judge. 2 ‘Witness one” was a secretary on the east wing of CCGH. On several occasions when Dr. Banks was called to this wing, he would run his hands through witness one’s hair and rub her shoulders.

On one occasion, while she was in the kitchen with Dr. Banks, he got up and closed the kitchen door for no reason. She became very frightened and immediately left the room. To avoid conflict, and because she feared getting into trouble, witness one walked away and did not report either incident. On another occasion, Dr. Banks came up behind witness one at her work station and touched her around her waist and stomach.

She demanded that he leave her alone. She told her supervisor about the incidents and followed up with a written report describing Dr. Banks’s repeated touchings and rude, sexually suggestive comments. The report indicated that Dr. Banks’s offensive conduct often occurred in areas where patients, visitors, and other staff could observe the advances. Another victim of Dr. Banks’s harassment was a unit secretary in the emergency department (witness two).

In July ²⁵⁴ 1987, witness two was using the Addressograph 3 and Dr. Banks was waiting behind her to stamp some documents for a patient he was admitting to the hospital. Dr. Banks slapped her on her backside, causing her to jump in surprise. About four years after the first incident, witness two was going to clean herself up after spilling coffee on her pants and shoes. Dr. Banks asked her to go to the records room and retrieve a patient’s chart for him.

Witness two indicated that she would get the chart as soon as she finished cleaning herself. Dr. Banks responded, ‘Why don’t you just let me lick it off?” Witness two told him he was disgusting and retrieved the record. While witness two was working at her desk a few weeks later, Dr. Banks came over and asked when she was going out with him. At this point, witness two reported the incidents of harassment to hospital administration.

The final victim of Dr. Banks’s harassment was an emergency department registrar (witness three). The first day Dr. Banks met witness three, he asked her out for drinks. She replied that she was only 19 and that she had a boyfriend. Almost two years later to the day, as witness three was exiting a restroom, Dr. Banks grabbed her and pinned her against the wall with his hands and his knees.

They were so close together that their stomachs were touching. Dr. Banks asked, “Is it going to be your place or mine?” Witness three responded, “Neither.” Dr. Banks then asked, “When will it be?” Witness three answered, “Never.” An orderly who observed the incident restrained Dr. Banks enough to allow witness three to escape. At the request of a nursing supervisor, witness three prepared a written report of the incident. She also initiated legal action against Dr. Banks, PEP, and CCGH.

During all of these incidents, Dr. Banks was wearing scrubs. ²⁵⁵ Following this incident, an employee of PEP and the Director of the Emergency Department at CCGH counseled Dr. Banks on these incidents. At the conference, Dr. Banks stated that he did not need counseling. After being given several options on how to deal with the charges, Dr. Banks chose to take a leave of absence. As a result of Dr. Banks’s unprofessional conduct, the Board of Directors at CCGH denied his application for privileges, essentially terminating his employment at the hospital.

The hospital administration reported the action it took against Dr. Banks to the BPQA, as is required by law. 4 After receiving the information from CCGH, the BPQA voted to charge Dr. Banks with violating Md.Code Ann., Health Occ. § 14~404(a)(3) (1994 Repl.VoL). That section provides, in pertinent part: (a) In general.—Subject to the hearing provisions of § 14-405 of this subtitle, the Board, on the affirmative vote of a majority of its full authorized membership, may reprimand a licensee, place any licensee on probation, or suspend or revoke a license if the licensee: (3) Is guilty of immoral or unprofessional conduct in the practice of medicine. Public charges were issued by BPQA a short time later. Dr. Banks filed with the BPQA a Motion to Dismiss, contending that disciplinary action was outside the scope of ²⁵⁶ BPQA’s authority because the conduct in question was not within “the practice of medicine.” The case, including Dr. Banks’s Motion to Dismiss, was referred to the Office of Administrative Hearings for adjudication.

After a hearing on the Motion to Dismiss was held, the Administrative Law Judge (ALJ) reserved ruling on the motion until after the entire case was heard. The ALJ later denied Dr. Banks’s request for reconsideration of her deferral of action on his motion. After a hearing, the ALJ concluded that Dr. Banks had violated [¶] § 14-404(a)(3) by committing unprofessional conduct in the practice of medicine. Specifically, the ALJ found that the following two incidents occurred within the practice of medicine: (1) when Dr. Banks slapped witness two on the buttocks while she was using the Addressograph to stamp documents in order to admit a patient and Dr. Banks was waiting to use the machine; and (2) when Dr. Banks requested that witness to allow him to lick the coffee off her pants after he had asked her to obtain a medical record for him.

The ALJ also concluded, however, that Dr. Banks was not engaged in the practice of medicine during the incidents with witnesses one and three and, therefore, was not subject to. any disciplinary action with regard to those witnesses. The ALJ recommended that Dr. Banks be reprimanded and undergo psychiatric evaluation and treatment Neither party filed exceptions and, a short time later, the BPQA convened to act on the ALJ’s recommended decision. The BPQA’s memorandum and order adopted the ALJ’s findings of fact. It agreed with the ALJ’s conclusion with regard to witness two, but disagreed with the ALJ’s conclusions with regard to witnesses one and three.

The BPQA was convinced, by clear and convincing evidence, that Dr. Banks had engaged in immoral, or unprofessional conduct in the practice of medicine by sexually harassing all three workers. It found that all of Dr. Banks’s action fell within “the practice of medicine” because his on-call status, during which he was expected to be available for admissions, treatment of patients, and for assistance in the operating and emergency rooms, ²⁵⁷ placed his activities squarely within the practice of medicine. The BPQA based this conclusion, in part, on the consideration that “a hospital environment must at all times be conducive to the practice of medicine,” requiring intensive team effort between physicians and hospital staff. The BPQA ordered that Dr. Banks be reprimanded and placed on probation, that Dr. Banks see a psychiatrist and, if the psychiatrist recommends, that Dr. Banks undergo psychotherapy with a therapist approved by the BPQA.

Dr. Banks appealed to the Circuit Court for Carroll County, which affirmed the BPQA’s order. The trial judge found that substantial evidence supported the BPQA’s findings and that his own independent review of the evidence supported the decision. On the issue of whether Dr. Banks was engaging in the practice of medicine when he harassed the other hospital employees, the trial judge concluded that Dr. Banks was “in uniform” and in the hospital for the sole purpose of practicing medicine, noting that physicians should not be able to insulate themselves from discipline “by merely declaring that they were on a coffee break.” Dr. Banks noted a timely appeal from the circuit court’s order and presents for our review a single issue, which we have rephrased slightly: Was the “immoral or unprofessional” conduct committed by Dr. Banks “conduct in the practice of medicine”? We answer this question both in the affirmative and in the negative and reverse in part and affirm in part.

Standard of Review An appellate court reviewing an administrative agency’s decision must determine if there was substantial evidence in the record to support the agency’s factual findings. Young v. Board of Physician Quality Assurance, 111 Md.App. 721, 726 , 684 A.2d 17 (1996), cert. granted, 844 Md. 568 , 688 A.2d 447 (1997). If substantial evidence exists, the court cannot substitute its judgment for that of the administrative agency. Id.

An agency’s decision must be reviewed in the light most ²⁵⁸ favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. Board of Education v. Paynter, 303 Md. 22, 35-36 , 491 A.2d 1186 (1985). When an agency makes an erroneous legal conclusion, however, an appellate court affords no deference to the administrative agency and may substitute its own judgment on the legal issue for that of the agency. Young, 111 Md.App. at 726 , 684 A.2d 17 .

Because an agency’s finding that a physician’s immoral or unprofessional conduct occurred in the practice of medicine is an application of law to facts, see Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834-39 , 490 A.2d 1296 (1985), we may substitute our own judgment for that of the agency as to the legal issue. With our standard of review in mind, we turn to a discussion of the merits of the case. Discussion BPQA charged Dr. Banks under Md.Code Ann., [¶] § 14-404(a)(3) (1994 Repl.Vol.). That section reads, in pertinent part: (a) In general.

Subject to the hearing provisions of § 14-405 of this subtitle, the Board, on the affirmative vote of a majority of its full authorized membership, may reprimand a licensee, place any licensee on probation, or suspend or revoke a license if the licensee: * * * (3) Is guilty of immoral or unprofessional conduct in the practice of medicine. Id. Dr. Banks does not challenge the finding that his conduct was immoral and unprofessional; he argues that his conduct did not occur “in the practice of medicine.” The Court of Appeals faced the issue of whether a physician’s immoral conduct occurred “in his practice as a physician” in McDonnell v. Commission on Med. Discipline, 301 Md. 426 , 483 A.2d 76 (1984).

Dr. McDonnell was sued by a former patient for ²⁵⁹ malpractice. During the trial, Dr. McDonnell contacted the mentors of the plaintiffs two expert witnesses who were to testify against him. His reason for making the call was ostensibly to make certain that the testimony of the witnesses would be honest, reasonable, and medically accurate. The real purpose of the call was to have the mentors exert pressure on their pupils not to break the “veil of silence,” which was a longstanding tradition within the medical profession that doctors should not testify against other physicians in