Blaker v. State Board of Chiropractic Examiners

²⁴⁸ BYRNES, Judge. F. Keen Blaker, D.C. appeals a judgment of the Circuit Court for Baltimore County affirming the finding by the Board of Chiropractic Examiners (“Board”) that he violated the Maryland Chiropractic Act, Md.Code (1994 Repl.Vol.), § 3-313(9) of the Health Occupations Article (“H.O.”), by rendering “professionally incompetent” treatment to a particular patient. 1 Dr. Blaker presents the following questions for review, which we have renumbered and slightly rephrased: I. Were Dr. Blaker’s due process rights violated because H.O. § 3-313(9) is void for vagueness?

II

Was the Board’s finding of incompetence supported by substantial evidence?

III

Did the contact between Mr. Paul Goszkowski, D.C. and Ms. Roberta Gill, Esquire, and the Board constitute an ex parte communication, in violation of Md. Code, (1995 RepLVol.), State Government Article, § 10-219, which violated Dr. Blaker’s due process rights?

IV

Did the Board improperly consider evidence not relevant to the charged offenses and improperly sanction Dr. Blaker for uncharged offenses, thus denying Dr. Blaker due process of law? V. Did the Board exceed its authority by imposing conditions on Dr. Blaker’s probation?

VI

Did the Board improperly refuse to allow Dr. Blaker discovery of documents pertaining to actions taken by the Board in response to allegations of incompetence in other cases? We answer “yes” to question II and “no” to the remaining questions. Accordingly, we affirm the judgment of the circuit court. ²⁴⁹ FACTS Dr. F. Keen Blaker has been licensed to practice chiropractic in Maryland since 1968. In his practice, he employs a chiropractic technique known as Directional Non-Force Technique (“DNFT”).

DNFT involves analyzing the patient’s foot reflexes to determine whether there is nerve pressure and, if pressure is found, performing a DNFT “correction” or “adjustment” by manipulating the patient’s body. In April 1994, Patient “A” filed a complaint against Dr. Blaker with the Board. The Board investigated the complaint and on May 24, 1994, charged Dr. Blaker with “professional incompetence” under H.O. § 3-313(9), which provided: Subject to the hearing provisions of § 3-315 of this subtitle, the Board may deny a license to any applicant, reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the applicant or licensee: (9) Is professionally, physically, or mentally incompetent!)] On August 10 and September 14, 1995, the Board held an evidentiary hearing on the charges against Dr. Blaker. Patient A testified that Dr. Blaker had treated him on five occasions.

His first visit to Dr. Blaker took place in May 1989. Patient A had just tested positive for HIV (Human Immunodeficiency Virus) and sought treatment to ensure that his “body was in line and everything was where it was supposed to be and functioning properly in order to give [his] system an opportunity to better battle [the] virus and live a longer and healthier life.” Patient A testified that during the office visit, he filled out a health inventory form. Dr. Blaker did not review the information in it with him. Dr. Blaker performed a chiropractic adjustment to Patient A that day.

He did not make a record of it, however. Dr. Blaker’s notes for that visit state only “lymphy” and “HIV positive.” Patient A returned to Dr. Blaker twice in June 1990, both times complaining that his feet were turning outward. Dr. Blaker did not inquire about Patient A’s health status or about ²⁵⁰ treatments he had received in the interim from other health care professionals. He also did not update Patient A’s health inventory.

Although Dr. Blaker performed adjustments to Patient A during both visits, he made no record of them. On January 28, 1994, Patient A returned to Dr. Blaker with complaints of excruciating pain and tightness in his lower back. He told Dr. Blaker that the pain was so intense that he could not lower his left leg. During the office visit, Patient A was in so much pain that he had to grab onto the reception counter to support himself.

He had been unable to drive to Dr. Blaker’s office because he could not use his foot to operate the clutch on his car. As they were standing in the office waiting room, Dr. Blaker advised Patient A that he had slipped a disc, and had probably done so shoveling snow. Patient A denied that he had been shoveling snow; he attributed the likely cause of the pain to weight lifting. According to Patient A, Dr. Blaker then told him that his stance indicated that he had slipped a disc.

Patient A testified that he was taken into an examining room and that while he was fully clothed in winter garb, including heavy work boots, Dr. Blaker pulled on his feet and manipulated his back. Dr. Blaker did not ask Patient A about his health status, did not perform any diagnostic tests, and did not make a record of his findings, treatment, or prognosis. He told Patient A to treat his back with ice for 72 hours but did not give him any written instructions about how to do so. Instead of applying ice to his back for twenty minute intervals, as he was supposed to do, Patient A mistakenly kept ice on his back for 72 straight hours, removing it only when he needed to use the bathroom.

Thereafter, on February 1, 1994, he returned to work. He left work after only a few hours, however, when the numbness from the ice wore off and his pain returned. Patient A went back to Dr. Blaker’s office the next day. By then, he could not drive and was unable to walk without assistance.

Before he performed any examination, Dr. Blaker told patient A that his shoulders and pelvis were “out of line.” ²⁵¹ Patient A was again wearing winter clothes and heavy work boots. Without having Patient A disrobe, Dr. Blaker pulled on his feet and manipulated his shoulders and lower back area. Dr. Blaker made no record of his analysis, treatment plan, or prognosis. Patient A’s pain grew progressively worse over the next few days.

By February 6, 1994, the pain had become intolerable. That day, Patient A was taken by ambulance to The Johns Hopkins Hospital emergency room where he was examined by an attending trauma doctor and a neurologist. He told them that he had seen a chiropractor who had treated him for a slipped disc. Patient A was told that he was suffering from tremors related to his slipped disc, and was discharged.

Patient A’s condition worsened. Eventually, he lost control of his bowels and bladder. On February 15,1994, he returned to The Johns Hopkins Hospital emergency room. He was immediately diagnosed with acute cauda equina syndrome, a serious condition indicating that a mass is pressing on the cauda equina nerves.

Diagnostic tests revealed a fast-growing tumor on Patient A’s spinal column that was later diagnosed as an AIDS-related, non-Hodgkin’s high grade lymphoma. Patient A underwent emergency surgery to remove the mass. He then underwent chemotherapy. Only after extensive physical therapy was he able to regain the full use of his legs.

The Board called Blaise Lavorgna, D.C. to testify as an expert witness in chiropractic. Dr. Lavorgna testified that he was familiar with the DNFT technique and had used it from time to time in his practice. He explained that the objective of chiropractic is to assess the patient to obtain a diagnosis and that, while chiropractors may use a variety of treatment techniques and methods, including DNFT, there are certain uniform standards of care that apply generally to chiropractic analyses and treatment of patients. Dr. Lavorgna further testified that Dr. Blaker breached accepted standards of chiropractic care during each of Patient A’s five visits by (1) failing to take a complete health history; (2) failing to perform and document an adequate physical ²⁵² examination, including undertaking a basic visual analysis of the patient with his clothing removed and obtaining vital signs; (3) failing to perform neurological, diagnostic, and orthopedic tests; (4) fading to document properly the treatment that was performed on each visit; and (5) failing during the last two visits to diagnose that Patient A’s pain was caused by a tumor.

With respect to the charge of professional incompetence against Dr. Blaker, Dr. Lavorgna explained: I believe when a person practices for whatever reason below the minimum standards of care that are accepted in the profession that they’re practicing in an incompetent manner, so based on the fact that a lot of this stuff I stated was below what is traditionally expected and poorly documented, I have to feel that it was incompetently handled. Dr. Blaker calléd R. Tyrrell Denniston, D.C. to testify as an expert in chiropractic and DNFT analysis. Dr. Denniston opined that Dr. Blaker’s treatment of Patient A was competent and in conformity with the standard of care for chiropractors who use DNFT. He further opined that Patient A did not exhibit symptoms of a tumor, as opposed to symptoms of “disc involvement,” during his two visits to Dr. Blaker in 1994.

Dr. Denniston explained that practitioners who use DNFT rely only on the DNFT analysis to assess the patient’s condition. Because the DNFT analysis is performed each time the patient presents for treatment, there is no need to plan a course of treatment or to make a prognosis. Dr. Denniston further stated that an accurate DNFT analysis and correction may be performed with the patient fully clothed. He also opined that Dr. Blaker was not required to order an MRI or a CAT Scan for Patient A during any of the office visits and that there was no cause for Dr. Blaker to refer Patient A to a medical professional.

Dr. Blaker also called Robert Douglas Keehn, M.D., an orthopedic surgeon, as an expert witness. Dr. Keehn explained that he had reviewed Patient A’s medical records from The Johns Hopkins Hospital. He opined that, based on Patient A’s symptoms and his test results from February 6, 1994, an x-ray or MRI study was not warranted at that time. ²⁵³ Dr. Keehn further opined that Patient A had no symptoms of cauda equina syndrome on February 6, 1994. In his opinion, the first symptoms of cauda equina syndrome appeared on February 15, 1994.

On February 8, 1996, the Board filed a 35 page memorandum opinion that included the following: (1) a synopsis of the case; (2) a list of exhibits; (3) a synopsis of witness testimony; (4) findings of fact; (5) conclusions of law; and (6) an order. By a majority of the quorum, the Board concluded that “in regard to the treatment and examination rendered to and notes taken for Patient A on five separate occasions, [Dr. Blaker] was professionally incompetent, in violation of § 3-313(9) of the Act.” Specifically, the Board determined that Dr. Blaker was professionally incompetent for failing to obtain a comprehensive health history of Patient A, namely, a history which would have included “the patient’s account of past, present and familial health problems, allergies, surgeries and injuries.” Dr. Blaker was also found professionally incompetent for failing to perform an adequate physical examination of Patient A, for failing to conduct appropriate orthopedic and neurological tests prior to making a diagnosis and initiating chiropractic treatment, and for failing to order pertinent diagnostic tests. The Board concluded, however, that Dr. Blaker was not professionally incompetent for failing to diagnose the non-Hodgkin’s high grade lymphoma, 2 or for failing to use codes from the International Classification of Diseases. The Board suspended Dr. Blaker’s license to practice chiropractic for six months, stayed the suspension, and placed Dr. Blaker on probation for two years with the following conditions: 1.

During the first six months of probation, [Dr. Blaker] shall complete by submitting evidence of completion to the Board, 48 hours of evaluation in physical diagnosis, in a ²⁵⁴ course pre-approved by the Board and 24 hours of education in record-keeping in a course pre-approved by the Board; 2. Within the first year of Probation [Dr. Blaker] shall take and pass the Spec examination given by the National Board of Chiropractic Examiners with a passing grade of 75%. 3. [Dr. Blaker] shall have his practice monitored by a Board-pre-approved mentor who shall, once a week for the first month, every month for the next five months and then quarterly for the rest of the probationary period, assist [Dr. Blaker] in setting up a record-keeping system and observe that full examinations of patients take place which are properly recorded. [Dr. Blaker] is to pay for all costs relating to the mentor. The mentor shall submit a written report to the Board at the conclusion of each of the periods outlined above; 4. [Dr. Blaker] shall submit his records to a random review by the Board to determine whether the standards of care in record-keeping are being met. On February 27,1996, Dr. Blaker filed a petition for judicial review of the Board’s decision and a motion to stay the Board’s order pending judicial review in the Circuit Court for Baltimore County.

On April 24, 1996, the court granted the motion to stay the Board’s order. The court held a hearing on the petition on March 11, 1997. On July 7, 1997, the court issued a memorandum opinion and order affirming the decision of the Board. Thereafter, Dr. Blaker noted a timely appeal.

STANDARD OF REVIEW Judicial review of a decision of an administrative agency is narrow. United Parcel v. People’s Counsel, 336 Md. 569, 576 , 650 A.2d 226 (1994). A court reviewing the decision of an administrative agency must determine whether there is substantial evidence in the record as a whole to support the final decision of the agency. Id. at 577 , 650 A.2d 226 ; Human Relations Comm’n v. Mayor and City Council of Baltimore, ²⁵⁵ 86 Md.App. 167, 172-73 , 586 A.2d 37 , cert. denied, 323 Md. 309 , 593 A.2d 668 (1991).

With respect to findings of fact, the reviewing court must not substitute its judgment for the expertise of the agency. Maryland State Police v. Lindsey, 318 Md. 325, 333 , 568 A.2d 29 (1990). An administrative agency’s decision “carries with it a presumption of validity; consequently, judicial review is limited to determining whether a reasoning mind could have reached the factual conclusion reached by the agency.” Liberty Nursing v. Dep’t of Health & Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993). Ordinarily, unlike an agency’s findings of fact, an agency’s conclusions of law are not given deference.

The reviewing court may substitute its rulings of law for that of the agency. Liberty Nursing, 330 Md. at 443 , 624 A.2d 941 . When the issue before the reviewing court is one of law, the scope of review is quite broad. Id.; Gray v. Anne Arundel Co., 73 Md.App. 301, 309 , 533 A.2d 1325 (1987).

In considering the decision of the circuit court in reviewing the decision of an administrative agency, our function “is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review.” Mortimer v. Howard Research, 83 Md.App. 432, 442 , 575 A.2d 750 , cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). DISCUSSION I. Dr. Blaker contends that the agency action against him violated his constitutional right to due process of law because H.O. § 3-313(9) is “void for vagueness.” Specifically, he argues that because H.O. § 3-319(9) does not define the term “professionally incompetent,” the statute fails to give proper notice of the type of conduct that will subject a chiropractor to disciplinary measures, and is thus unconstitutional. The vagueness doctrine stems from the Fourteenth Amendment’s guarantee of procedural due process. Williams v. State, 329 Md. 1, 8 , 616 A.2d 1275 (1992).

Generally, courts ²⁵⁶ use two criteria to determine whether a statute is void for vagueness. Bowers v. State, 283 Md. 115, 120-21 , 389 A.2d 341 (1978). First, a court must determine whether the statute adheres to the “fair notice principle.” Id. at 121 , 389 A.2d 341 . In discussing the fair notice principle, the Court of Appeals has held that “[d]ue process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.” Id.

Thus, a statute will survive a challenge that it is unconstitutionally vague if it uses plain language that is understandable to a person of ordinary intelligence. Connolly v. General Const. Co, 269 U.S. 385, 391 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926); Williams, 329 Md. at 8 , 616 A.2d 1275 ; Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 14-15 , 400 A.2d 396 , cert. denied, 444 U.S. 868 , 100 S.Ct. 142 , 62 L.Ed.2d 92 (1979); Richards Furniture v. Board of County Commissioners, 233 Md. 249, 264 , 196 A.2d 621 (1964); Boyer v. State, 107 Md.App. 32, 42-43 , 666 A.2d 1269 (1995), cert. denied, 341 Md. 647 , 672 A.2d 622 (1996). Second, a statute may be stricken for vagueness if it does not “provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.” 3 Bowers, 283 Md. at 121 , 389 A.2d 341 .

The purpose behind this second prong is to avoid resolving matters in an arbitrary or discriminatory manner. Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972)); see also Kolender v. Lawson, 461 U.S. 352, 357-58 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983). The vagueness doctrine does not require absolute precision or perfection, however.

Boyer, 107 Md.App. at 42 , 666 A.2d ²⁵⁷ 1269. In other words, a statute is not void for vagueness “merely because it allows for the exercise of some discretion.” Bowers, 283 Md. at 122 , 389 A.2d 341 . A statute is unconstitutional only when it “is so broad as to be susceptible to irrational and selective patterns of enforcement,.... ” Id. In Unnamed Physician v. Comm’n, supra, the Court of Appeals addressed whether former Md.Code Ann. (1978 Cum.

Supp.), Art. 43 § 130, which at that time governed disciplinary actions against physicians, was void for vagueness. 4 Former section 130(h) set forth eighteen separate grounds upon which a physician could be disciplined for “unprofessional conduct,” one of which was “professional incompetency.” The Court held that the statute was not void for vagueness because it (1) sufficiently “inform[ed] a physician that if he engage[d] in any of the activities forbidden by § 130(h) he [would] be subject to discipline and the possible loss of his license,” Unnamed Physician, 285 Md. at 14-15, 400 A.2d 396 , and (2) because it was written in plain language that could be understood by people of ordinary intelligence. Id. at 15 , 400 A.2d 396 . Dr. Blaker contends that the holding in Unnamed Physician is inapplicable to this case because H.O. § 3-313(9), unlike former § 130(h), does not specify conduct so as to inform a chiropractor that he is