Board of Physician Quality Assurance v. Banks

⁶² ELDRIDGE, Judge. We issued a writ of certiorari in this case to decide whether the Board of Physician Quality Assurance could reasonably conclude that a physician’s sexually harassing conduct towards co-employees, committed while the physician was on duty at the hospital and in working areas of the hospital, constitutes immoral or unprofessional conduct in the practice of medicine within the meaning of Maryland Code (1981, 1994 Repl.Vol.), § 14-404(a)(3) of the Health Occupations Article. I. From 1986 until 1991, Dr. Lester H. Banks worked at Carroll County General Hospital as a medical-surgical house physician. As house physician, Dr. Banks was expected to work twelve hour shifts and was responsible for admitting patients into the hospital, caring for patients, and assisting in the operating room and emergency department.

The house physician program was new to the hospital and was thus underutilized by the medical staff, resulting in considerable “down time” for the house physician. Because of the underutilization, Dr. Banks often agreed to work twenty-four and thirty-six hour shifts, frequently working as many as thirty shifts per month. When on duty, Dr. Banks was not free to leave the hospital and was expected to be available at all times. Nevertheless, when Dr. Banks was on duty but not utilized by the medical staff, he was free to sleep, eat, watch television, use the telephone, read, or visit with other employees in the hospital.

The evidence at the administrative hearing in this case disclosed the following. During the time Dr. Banks was employed by Carroll County General Hospital, he engaged in a pattern of sexually harassing female employees while he was on duty. A unit secretary at the hospital, witness # 1, stated that Dr. Banks on several occasions came to her work station and repeatedly touched her, rubbed her shoulders, back and neck, put his hands through her hair, and pinched her behind. She further stated that Dr. Banks “repeatedly made rude and ⁶³ unnecessary comments, most often regarding sex.” She testified that on one occasion, Dr. Banks approached her from behind and put his hands around her waist and squeezed her stomach.

Witness # 1 was offended by Dr. Banks’s unwelcome advances and told him to leave her alone. She indicated that Dr. Banks’s “conduct often occurred in areas where patients, visitors, and other staff could observe the embarrassing advances.” Witness # 1 reported the offensive conduct to her supervisor and also filed a written report describing the conduct. Witness #2, a unit secretary in the hospital’s emergency department, also reported sexual harassment by Dr. Banks. She stated that on one occasion shortly after she began her employment at the hospital, Dr. Banks was waiting behind her to stamp some documents on the addressograph machine for a patient he was admitting.

While he was waiting, Dr. Banks hit witness #2 “very hard on the backside, causing her to jump in surprise.” Witness #2 testified that on another occasion, an employee had accidentally knocked over a cup of coffee, spilling coffee on witness #2 and on her shoes. At that time Dr. Banks asked witness # 2 to retrieve a patient chart for him. Witness #2 told Dr. Banks that she would retrieve the chart just as soon as she was able to clean the coffee off of herself. Dr. Banks responded, “[w]hy don’t you let me lick it off.” Witness # 2 told Dr. Banks that he was “disgusting” and that he should leave her alone.

On a third occasion, Dr. Banks came to witness # 2’s desk and asked her when she would go out with him, to which witness #2 responded “never.” An emergency department nurse observed and commented upon this last incident. Witness # 2 subsequently filed a complaint with the hospital administration concerning Dr. Banks’s unwelcome behavior. Witness #3, an emergency department registrar at the hospital, testified that Dr. Banks asked her to go out with him for drinks. Witness # 3 declined, stating that she was only nineteen years old and that she had a steady boyfriend.

On another occasion, witness # 3 was walking out of the ladies room into the hallway outside the emergency department ⁶⁴ when Dr. Banks “pinned” her up against the wall with his arms and knee. She stated that they were so close that their stomachs were touching. Dr. Banks then asked witness # 3 “is it going to be your place or mine?” To this, witness # 3 replied “neither.” Dr. Banks again asked her “when will it be?” She replied “never.” An orderly who observed the incident pulled Dr. Banks away from witness # 3, allowing her to escape. Witness #3 overheard Dr. Banks say to the orderly, “I guess she is not wet yet.” Witness # 3 prepared a written report of this incident and subsequently filed a legal action against Dr. Banks.

The director of the emergency department at the hospital counseled Dr. Banks on several occasions regarding complaints about his conduct. In December 1987, the director counseled Dr. Banks concerning a comment Dr. Banks had made to a nurse, to the effect that “I’d like to get you behind closed doors.” In May 1988, Dr. Banks was again counseled for a comment to a female employee, who was wearing red, that wearing red on certain days indicated sexual promiscuity. Finally, in September 1991, Dr. Banks was counseled concerning the incident with witness # 3. The hospital presented Dr. Banks with several options, and he elected to take a leave of absence.

The hospital board of directors denied Dr. Banks’s application for privileges as a result of his conduct. The Board of Physician Quality Assurance received information that Dr. Banks had been denied privileges at Carroll County General Hospital and subsequently decided to charge Dr. Banks with violating § 14—404(a)(3) of the Health Occupations Article, which provides as follows: “(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 any 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.... ” ⁶⁵ The Board issued charges and a summons to Dr. Banks to appear at a hearing before an administrative law judge (ALJ). In a motion to dismiss the charges, Dr. Banks contended that the Board lacked jurisdiction and authority to take action in this case because Dr. Banks’s conduct was not in the practice of medicine as is required by § 14—404(a)(3); rather, according to Dr. Banks, it did not even bear “the slightest relationship to [Dr. Banks’s] performance of the practice of medicine, as that term is defined in § 14-101.” Section 14-101(k) of the Health Occupations Article defines the “practice of medicine” as follows: “(1) ... to engage, with or without compensation, in medical: (i) Diagnosis; (ii) Healing; (iii) Treatment; or (iv) Surgery. (2) “Practice of medicine” includes doing, undertaking, professing to do, and attempting any of the following: (i) Diagnosing, healing, treating, preventing, prescribing for, or removing any physical, mental, or emotional ailment or supposed ailment of an individual.... ” The ALJ reserved ruling on Dr. Banks’s motion until after a hearing on the merits.

After conducting the evidentiary hearing, the ALJ issued a proposed order finding the facts as previously outlined and concluding that Dr. Banks violated § 14-404(a)(3) by committing unprofessional conduct in the practice of medicine, on two different occasions, toward witness # 2. The ALJ further concluded that Dr. Banks’s conduct involving witnesses # 1 and # 3 was not in the practice of medicine. The ALJ held that Dr. Banks’s conduct while waiting to use the addressograph machine to admit a patient and requesting that witness # 2' obtain a patient record were “part of the undertaking of patient treatment” and were, therefore, within the “actual performance of the practice of medicine.” The ALJ stated that Dr. Banks was not “undertaking the diagnosing, healing or treating of an individual ⁶⁶ during the events described by -witness # 1 or witness # 3.” The ALJ proposed reprimanding Dr. Banks and requiring an evaluation by a psychiatrist to determine if psychiatric treatment was necessary. The Board of Physician Quality Assurance adopted the ALJ’s basic findings of fact but determined that all of Dr. Banks’s above-described conduct, including his conduct toward witnesses # 1 and # 3, constituted “immoral or unprofessional conduct in the practice of medicine.” The Board took the position that Dr. Banks’s conduct occurred within the “practice of medicine” because his “presence in the hospital and ‘on-call’ status clearly involved more than merely a ‘general or associative’ relationship with his practice as a physician.” Furthermore, the Board reasoned that a “hospital environment must at all times be conducive to the practice of medicine” because at “any time, an unforseen patient care emergency may require intensive team effort necessarily involving both physicians and hospital staff.” It determined that Dr. Banks’s conduct “risks a breakdown of the cooperation [among] the medical team which is so necessary to patient treatment in a hospital setting.” The Board held that, because Dr. Banks’s “conduct affected and soured the hospital working environment, there was a direct impact on patient care, thus implicating the actual practice of medicine.” The Board ordered that Dr. Banks be reprimanded and placed on probation subject to terms and conditions, including evaluation by a psychiatrist to determine if he should undergo psychotherapy.

Dr. Banks filed in the Circuit Court for Carroll County an action for judicial review of the Board’s decision. The circuit court affirmed the Board’s decision, reasoning that “the legislature did not intend to limit the application of Section 14-404(a)(3) to cases in which a physician is dealing with a patient directly, or face-to-face.” The court agreed with the Board that all of Dr. Banks’s immoral or unprofessional conduct towards the three witnesses was in the practice of medicine because it occurred while he was “on his shift at the hospital,” ⁶⁷ “in uniform” (wearing scrubs), and present in the hospital “for the sole purpose of practicing medicine.” Dr. Banks appealed to the Court of Special Appeals which affirmed in part and reversed in part. Banks v. Board of Physician Quality Assurance, 116 Md.App. 249 , 695 A.2d 1260 (1997). The intermediate appellate court held that, in order to discipline a physician under § 14-404(a)(3), the immoral or unprofessional conduct must occur “during the diagnosis, care, or treatment of patients.” 116 Md.App. at 262 , 695 A.2d at 1267 .

Using this definition of the “practice of medicine,” the Court of Special Appeals affirmed the circuit court’s decision with respect to witness #2. The court reasoned that Dr. Banks’s conduct was within the practice of medicine because using the addressograph machine and requesting a patient record were both “necessary procedure[s] and ... part of the treatment of a patient.” 116 Md.App. at 263 , 695 A.2d at 1268 . The Court of Special Appeals disagreed with the circuit court and the Board with respect to witnesses # 1 and # 3 because Dr. Banks was not “diagnosing, caring for, or treating patients while he was sexually harassing witnesses one or three.” 116 Md.App. at 263 , 695 A.2d at 1267 . Both sides filed petitions for a writ of certiorari, and this Court granted both petitions.

Board of Physicians v. Banks, 347 Md. 683 , 702 A.2d 291 (1997). Although worded differently, both petitions presented essentially the same issue, namely whether Dr. Banks’s conduct, as previously described, constituted immoral or unprofessional conduct in the practice of medicine within the meaning of § 14-404(a)(3) of the Health Occupations Article.

II

A. A court’s role in reviewing an administrative agency adjudicatory decision is narrow, United Parcel v. People’s Counsel, 336 Md. 569, 576 , 650 A.2d 226, 230 (1994); it “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclu ⁶⁸ sions, and to determine if the administrative decision is-premised upon an erroneous conclusion,of law.” United Parcel, 336 Md. at 577 , 650 A.2d at 230 . See also Code (1984, 1995 Repl.Vol.), § 10-222(h) of the State Government Article; District Council v. Brandywine, 350 Md. 339, 349 , 711 A.2d 1346, 1350-1351 (1998); Catonsville Nursing v. Loveman, 349 Md. 560, 568-569 , 709 A.2d 749, 753 (1998). In applying the substantial evidence test, a reviewing court decides “ ‘ “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” ’ ” Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978). See Anderson v. Dep’t of Public Safety, 330 Md. 187, 213 , 623 A.2d 198, 210 (1993).

A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. CBS v. Comptroller, 319 Md. 687, 698 , 575 A.2d 324, 329 (1990). A reviewing court “ ‘must review the agency’s decision in the light most favorable to it; ... the- agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence’ and to draw inferences from that evidence.” CBS v. Comptroller, supra, 319 Md. at 698 , 575 A.2d at 329 , quoting Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834-835 , 490 A.2d 1296, 1301 (1985). See Catonsville Nursing v. Loveman, supra, 349 Md. at 569 , 709 A.2d at 753 (final agency decisions “are prima facie correct and carry -with them the presumption of validity”).

Despite some unfortunate language that has crept into a few of our opinions, 1 a “court’s task on review is not to ‘ “ ‘substitute its judgment for the expertise of those persons who constitute the administrative agency,’ ” ’ ” United Parcel v. People’s Counsel, supra, 336 Md. at 576-577 , 650 A.2d at ⁶⁹ 230, quoting Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513 , 390 A.2d at 1124 . Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Lussier v. Md. Racing Commission, 343 Md. 681, 696-697 , 684 A.2d 804, 811-812 (1996), and cases there cited; McCullough v. Wittner, 314 Md. 602, 612 , 552 A.2d 881, 886 (1989) (“The interpretation of a statute by those officials charged with administering the statute is ... entitled to weight”). 2 Furthermore, the expertise of the agency in its own field should be respected.

Fogle v. H & G Restaurant, 337 Md. 441, 455 , 654 A.2d 449, 456 (1995); Christ v. Department of Natural Resources, 335 Md. 427, 445 , 644 A.2d 34, 42 (1994) (legislative delegations of authority to administrative agencies will often include the authority to make “significant discretionary policy determinations”); Bd. of Ed. For Dorchester Co. v. Hubbard, 305 Md. 774, 792 , 506 A.2d 625, 634 (1986) (“application of the State Board of Education’s expertise would clearly be desirable before a court attempts to resolve the” legal issues). B. At the outset, we point out that there was clearly substantial evidence supporting the ALJ’s findings of basic facts which were adopted by the Board. The testimony and written statements by witnesses 1, 2, and 3 directly supported the administrative findings of fact. Moreover, the ALJ and the Board were certainly justified in characterizing Dr. Banks’s conduct as “immoral or unprofessional conduct.” The only real disputed issue in these judicial review proceedings has ⁷⁰ been whether Dr. Banks’s conduct occurred “in the practice of medicine.” In light of the principles outlined in Part II A above, we believe that the Board’s conclusion, that Dr. Banks’s conduct with regard to witnesses 1, 2 and 3, occurred “in the practice of medicine,” was reasonable.

The circuit court correctly affirmed the