Board of Physician Quality Assurance v. Levitsky

¹⁹⁰ WILNER, Judge. In a Final Opinion and Order dated July 30,1997, the Board of Physician Quality Assurance found that respondent, Leon R. Levitsky, had violated two provisions of the Maryland Medical Practices Act—abandonment of a patient and failure to meet appropriate standards for the delivery of medical care—and revoked his license to practice medicine. The Circuit Court for Prince George’s County, acting on Dr. Levitsky’s petition for judicial review, reversed the Board’s order upon a finding that the peer review process that occurred prior to the filing of charges against Dr. Levitsky was not conducted in strict compliance with procedural requirements governing that process. In reaching that conclusion, the court followed the decision of the Court of Special Appeals in Young v. Board of Physician, 111 Md.App. 721 , 684 A.2d 17 , cert. granted, 344 Md. 568 , 688 A.2d 447 , cert. dismissed, 346 Md. 314 , 697 A.2d 82 (1997).

We granted the Board’s petition for certiorari before argument in the Court of Special Appeals to consider whether the irregularities alleged or shown in this case suffice to invalidate the Board’s final order. We shall conclude that they do not and therefore shall reverse the judgment of the circuit court. BACKGROUND Before delving into the relevant facts and procedural history, we think it helpful to summarize the process used by the Board to investigate and adjudicate complaints made against physicians. That process is governed by the Maryland Medical Practices Act (Maryland Code, title 14 of the Health Occupations Article), regulations adopted by the Board that are codified in COMAR 10.32.02, and a Peer Review Handbook for Maryland adopted jointly by the Board and the Medical and Chirurgical Faculty of Maryland (Med Chi) in 1989.

When an allegation that may constitute grounds for disciplinary action against a physician comes to the Board’s attention, the Board is required to conduct a preliminary investiga ¹⁹¹ tion. § 14-401(a). Unless, as a result of that investigation, the Board elects not to proceed further, it is required to refer to Med Chi, “for further investigation and physician peer review,” any allegation involving standards of medical care. § 14-401(c)(2). Med Chi may delegate the matter to a medical review committee but is required, within 90 days, to make a report to the Board. The report is to contain the information and recommendations necessary for appropriate action by the Board. § 14-401(e).

The peer review process is governed by the Peer Review Handbook. Although there is no reference to the Handbook in either the statute or the Board’s regulations, a preface to it states that the Handbook was adopted by the Board as “its required administrative procedure for investigation in the State of Maryland.” Chapter III of the Handbook states that Med Chi “conducts its investigation in accordance with the protocols in the Peer Review Handbook.” The Handbook calls for the President of Med Chi, annually, to appoint a Peer Review Management Committee with responsibility, among other things, to receive cases from the Board, identify the guidelines to be used in conducting a peer review, refer cases from the Board to an appropriate medical review committee, review reports received from the medical review committee to assure that the review and report were conducted and prepared in accordance with the Handbook guidelines, and to transmit proper reports to the Board. In cases where the peer review is of a physician’s practice, rather than of an individual incident, the medical review committee, after determining whether the physician’s records are sufficiently legible to proceed, may appoint a medical review team, consisting of at least two physicians, only one of whom need be a member of the medical review committee. Those physicians, on the medical review team, must examine the records of at least ten patients.

Each member of the team must review all ten records and complete an Initial Medical Record Assessment Worksheet, in the form attached as an Appendix to the Handbook, for each record reviewed. Following an office visit, the medical review team, individually or jointly, must ¹⁹² write a report for consideration by the medical review committee. The medical review committee is directed to gather whatever pertinent information is needed to form a clear picture of the physician’s present practice, and the Handbook describes a number of ways in which the committee may obtain that information. The committee must meet with the review team to discuss the office review report, and, if the committee or the team has a concern about the physician’s practice, the committee must meet with the physician.

In that regard, Chapter XI, ¶ C.13 of the Handbook provides, in relevant part: “The physician should be asked to provide copies of his/her records to the committee at least one week before the meeting so that members have an opportunity to review them. It is the responsibility of committee members to review records before attending the meeting to be prepared to ask pertinent questions of the physicians under review. The records requested by the committee should include those reviewed by the review team____ In reviewing the records, the members of the committee shall use the Initial Medical Record Assessment Worksheet ... to make notes about the record which can be used in discussing the case with the physician under review and in preparing the report for the [Board].” The medical review committee prepares a report to the Board, which it forwards to the Peer Review Management Committee for transmission to the Board. Upon receipt of the Med Chi report, the Board determines whether there is reasonable cause to charge the physician with a failure to meet appropriate standards of care.

COMAR 10.32.02.03B. If it files a charge, the Board refers the matter to an administrative prosecutor for prosecution and sends notice to the physician. COMAR 10.32.02.03C. Unless the case is resolved through a case resolution conference or an offer by the physician to surrender his or her license, an evidentiary hearing is held either before the Board or before an administrative law judge (AL J) from the Office of Adminis ¹⁹³ trative Hearings. § 14-405; COMAR 10.32.02.03E.

If the matter is tried before an ALJ, as it was in this case, the ALJ issues findings of fact, conclusions of law, and a proposed disposition, to which the physician or the administrative prosecutor may except. After a hearing on any exceptions, the Board issues an order containing the accepted findings of fact and conclusions of law and a disposition. That order is then subject to judicial review in accordance with the Administrative Procedures Act (Maryland Code, title 10, subtitle 2 of the State Government Article). This case proceeded in accordance with that general format.

In October, 1993, the Board received an Adverse Action Report from Doctors’ Community Hospital in Prince George’s County stating that Dr. Levitsky (1) was unavailable on the day that a patient of his was admitted and continued to be unavailable during that patient’s hospital stay, and (2) had been abusive to nursing and laboratory personnel. Although the text of the Action Report is not in the record before us, it appears from a description of it that numerous complaints had been filed with the hospital’s medical quality assurance committee and that, as a result, the hospital had suspended Dr. Levitsky’s privileges for six months, with reinstatement subject to certain conditions. After a preliminary investigation, the Board referred the matter to Med Chi for further investigation and peer review. In January, 1994, the Board subpoenaed and turned over to Med Chi medical records relating to eleven of Dr. Levitsky’s patients.

Med Chi’s Peer Review Management Committee referred the matter to a medical review committee of six physicians which, in turn, designated a medical review team, consisting of Drs. Mel P. Daly and John Kelly, to review the patient records. In July, 1994, Dr. Daly rendered a written report to the medical review committee, in which he summarized in general terms both the outpatient and inpatient records. He stated that he had reviewed each patient’s record separately, and he concluded that “all of the records reviewed revealed potentially serious deficiencies in patient care.” Dr. Daly did ¹⁹⁴ not, however, complete the Initial Medical Record Assessment Worksheet called for by Chapter XI, ¶ C.8 of the Handbook.

Dr. Kelly made a separate report in August, one page of which is missing from the record. In his general comments, Dr. Kelly noted that Dr. Levitsky’s handwriting was illegible, thereby making it nearly impossible to identify from the progress notes his thought processes or even his presence. Dr. Kelly pointed out, however, that in none of the cases was there an adverse event or outcome. He concluded that Dr. Levitsky’s record keeping was “less than satisfactory,” but because there was no adverse medical result, it was difficult for him to address the standard of care issue.

Unlike Dr. Daly, Dr. Kelly completed an Initial Medical Record Assessment Worksheet with respect to each patient. In December, 1994, the medical review committee met. According to the committee’s report, Dr. Kelly and Dr. Daly “reviewed each of the medical records for the eleven patients.” Dr. Kelly “commented individually on the patient records,” and Dr. Daly “presented his review in the form of a written commentary, not always addressing the findings for each patient.” In later testimony, Dr. Daly confirmed that he had read each of the records and that Dr. Kelly had “independently reviewed the same charts.” Although he was not certain whether the members of the medical review committee reviewed all of the medical records, he was sure that they had read the reports and that “they were knowledgeable enough that they could discuss each of the patients because we discussed each patient, one at a time.” The committee also heard from Dr. Levitsky and his attorney, who attended the first part of the meeting; the committee questioned Dr. Levitsky and allowed him to ask questions. In January, 1995, the committee’s report was transmitted by the Peer Review Management Committee to the Board.

It stated that “the standard of care was not met in the documentation of any of the eleven patient records reviewed” and that “the medical care was inadequate in five of the patient records reviewed.” ¹⁹⁵ Upon that report, the Board, in July, 1995, filed charges accusing Dr. Levitsky of (1) abandoning a patient, in violation of § 14-404(a)(6), and (2) failing to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care, in violation of § 14-404(a)(22). The charges alleged general deficiencies in the patient records kept by Dr. Levitsky and specific deficiencies in the records of six of the eleven patients, one being the patient allegedly abandoned by Dr. Levitsky. Hearings commenced before an ALJ on December 4, 1995 and continued for two more days in December, three in February, and one in March. The State’s case consisted principally of the testimony of Dr. Daly and the charts and records pertaining to the six patients who were the subject of the charges.

Dr. Daly’s testimony was interrupted by three witnesses for Dr. Levitsky taken out of turn. At Dr. Levitsky’s request, the February and March hearings were moved from the Office of Administrative Hearings to Prince George’s County for the convenience of the many witnesses he said that he intended to call. None of those witnesses were called, however. Dr. Levitsky used the hearings on February 15, 28, and 29 and on March 1 for his own extensive testimony.

On March 6,1996, Dr. Levitsky’s attorney sent notice to Levitsky of his intention to withdraw from the case and advised Levitsky to obtain another attorney. The record indicates that the attorney withdrew because of an unresolved fee dispute, possibly involving other litigation. The ALJ was not informed of the withdrawal until March 14. On March 26, the ALJ rescheduled further hearings to commence April 9 and extend, with some breaks, through April 23.

On March 28, Dr. Levitsky asked for a postponement until April 22, noting that he was then without counsel. The ALJ denied that request on the ground that the doctor had been aware of his lawyer’s intention to withdraw since at least March 6. When the hearing resumed, as scheduled, on April 9, Dr. Levitsky was still without an attorney. The purpose of the hearing was to proceed with the balance of Dr. Levitsky’s case, namely, the testimony of the 23 witnesses he indicated ¹⁹⁶ that he intended to call.

None of those witnesses were present, however, and considerable argument erupted over the circumstances of the attorney’s withdrawal, Dr. Levitsky’s readiness to proceed, and why none of the witnesses were available. The ALJ once again refused to postpone the hearing, even for two hours, and, when Dr. Levitsky confirmed that he had no witnesses immediately available, she declared the case closed and proceeded with closing statements. On July 5, 1996, the ALJ filed with the Board a Proposed Decision, setting forth her findings of fact, conclusions of law, and a proposed disposition. On the basis of 122 specific findings of fact, the ALJ concluded that (1) Dr. Levitsky’s outpatient records were “woefully inadequate and failed to detail the ongoing care and the purpose for that ongoing care” and that, by failing to provide a historical record of treatment, they failed to meet the required standard of care, (2) the admission histories in the inpatient records were cursory and lacked sufficient information regarding the patient’s medical condition, (3) Dr. Levitsky failed to write sufficient progress notes, with respect to his hospitalized patients, and (4) his discharge summaries were also lacking in sufficient detail.

She declared those records “worthless.” Patient E, she found, had been abandoned. That person became Dr. Levitsky’s patient on August 30, 1993, the day following his admission, but he was not visited or examined by Dr. Levitsky for 10 days. For four days, Dr. Levitsky was in South Carolina and received and sent messages concerning the patient through a bartender. Although noting that Dr. Levitsky had been a practicing physician for 40 years, the ALJ concluded that he had failed to provide his patients with competent medical care, and she recommended that his license be revoked.

In August, Dr. Levitsky, through new counsel, filed 56 pages of exceptions to the ALJ’s recommended decision. He complained that (1) by proceeding with the hearing on April 9, 1996, the ALJ deprived him of his right to counsel and his right to a full hearing, (2) by limiting his time for closing statement to 45 minutes, she deprived him of his right to make a closing argument, (3) the ALJ was discourteous to and ¹⁹⁷ biased against Dr. Levitsky, (4) the proposed sanction was excessive, and (5) the evidence was insufficient to sustain the two charges in various respects. Attached to the exceptions were a number of exhibits, including 20 affidavits—14 from physicians attesting to the sufficiency of Dr. Levitsky’s medical records and patient care and six from lay witnesses with respect to care given to patients by Dr. Levitsky. The administrative prosecutor responded to the exceptions and objected to Dr. Levitsky’s attempt, through the affidavits, to put before the Board evidence never presented to the ALJ.

Both sides further argued their positions at an exceptions hearing conducted by the Board. As noted, the Board, on July 30, 1997, issued its Final Opinion and Order adopting the findings, conclusions, and proposed disposition of the ALJ. Dr. Levitsky petitioned for judicial review in the Circuit Court for Prince George’s County and, in connection with his complaint that the ALJ had precluded him from presenting evidence on April 9, asked the court to order the Board to take additional testimony. Additionally, he asserted that “it may become necessary for this court to remand these proceedings for a determination as to whether the proceedings before the [Board] complied with the requirements established in the case of Young v. BPQA, 111 Md.App. 721 , 684 A.2d 17 (1996) ... with respect to the conduct of the peer review process that formed the basis for the charges that were ultimately brought against [Levitsky]____” In that regard, he averred that the record “plainly establishes” that the peer review process was not conducted in accordance with the Peer Review Handbook, and he asked that the court either determine the matter on its own or remand for the Board to make that determination.

The court decided the case on the basis of that alternative argument, finding a number of violations of what it regarded as Board regulations. The court characterized Dr. Kelly’s report as a “ ‘stream of conscious’ evaluation of Dr. Levitsky’s fitness for practice and not a case-by-case analysis as required by the Board’s regulations,” and it found that only Dr. Daly had completed the Initial Medical Record Assessment Work ¹⁹⁸ sheet for each patient reviewed, as required by the Handbook. 1 The court declared that “Board regulations ... mandate independent review of all patient files by the members of the [medical review committee] prior to making its determination,” implying that that had not been done, and it found that “no member of the panel complied with the Agency regulations requiring the completion of the Initial Record Assessment Worksheet.” Observing that in Young, swpra, the Court of Special Appeals had vacated an adverse Board ruling against a physician because the peer review process was not conducted in accordance with the requirements in the Handbook, the court stated: “The facts presented before this Court do not differ in any significant way from those in Young . Only one of the nine members of the peer review panel, Dr. Daly, completed the Initial Record Assessment Worksheet. Seven of the nine panel members did only a cursory review, if any, of the patient files and instead relied on Drs.

Daly and Kelly’s summary presentation of their own views of those files.” Upon those findings, the court concluded that “Med-Chi’s failure to follow the Board’s mandatory guidelines” violated Dr. Levitsky’s due process rights. It therefore remanded the case to the Board “for strict compliance with Handbook regulations at the medical investigation and Peer Review stages of this proceeding.” That directive, we assume, was influenced by the court’s further finding that “the subsequent procedural stages (the administrative hearing, the Board review, and exceptions hearing) may have been tainted by the procedural flaws at the previous stages.” Its order vacated the Board’s order revoking Dr. Levitsky’s license and remanded the case to the Board for further proceedings. Those proceedings ¹⁹⁹ were to commence with the peer review, the court concluding that the Board could, if it chose, use the same patient files and peer review committee. Following the report of the peer review committee, a hearing was to be conducted before the same ALJ who had conducted the earlier hearing, although the court stated that “[t]o the extent that the Board’s new recommendation, is consistent with its previous recommendation all of the previous testimony presented ... at the prior ALJ hearing may be admitted at the new hearing provided that Dr. Levitsky be given an opportunity to present any evidence that he did not present at the previous hearings.” DISCUSSION Motion To Dismiss Before addressing the issue we granted certiorari to consider, we must deal with Dr. Levitsky’s motion to dismiss this appeal.

It shall not detain us long. He argues first a combination of mootness and acquiescence. After the circuit court’s order was filed, the Board noted an appeal and sought, from the circuit court, a stay of its order pending the appeal. The court denied the Board’s motion, and, instead of pursuing a stay from the Court of Special Appeals or from this Court, the Board restored Dr. Levitsky’s license in conformance with the circuit court’s order.

That action, Levitsky claims, makes the case moot and suffices as an acquiescence by the Board in the judgment. Dealing first with the question of acquiescence, we know of no authority—and none has been cited to us by Dr. Levitsky-—requiring a licensing agency whose decision has been vacated by a circuit court to seek a stay in the appellate courts in order to preserve its right of appeal. The doctrine of acquiescence—or waiver—is that “a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.” Franzen v. Dubinok, 290 Md. 65, 69 , 427 A.2d 1002, 1004 (1981) (Emphasis added). The focus of the inquiry, we