Board of Physician Quality Assurance v. Mullan

RAKER, Judge. This case concerns the interpretation of a provision in the Maryland Administrative Procedure Act (APA), Md.Code (1984, 1999 Repl. Vol., 2003 Cum. Supp.) §§ 10-101 to 10-305 of the State Government Article, 1 that permits the summary suspension of a medical doctor’s license — suspension without ¹⁶¹ first giving the licensee notice and an opportunity to be heard — when “the public health, safety, or welfare imperatively requires emergency action.” § 10-226(c)(2)(i).

We must determine whether the passage of time between the agency’s discovery of potential circumstances demanding summary suspension and the agency’s final order to suspend is relevant to a finding that the suspension was imperatively required. I. On April 25, 2000, the parent of a minor patient treated by Dr. Paul A. Mullan, a pediatrician, filed a written complaint with the State Board of Physician Quality Assurance (the Board). The complaint alleged that Dr. Mullan had treated her son while under the influence of alcohol on April 10, 2000. On May 17, 2000, a staff member of the Board visited Dr. Mullan at his office to give him a copy of the complaint as well as a letter from the Board demanding a written response within fifteen days to the parent’s allegations.

The staff also served Dr. Mullan with a subpoena requesting the medical records of the complaining parent’s son and the sign-in sheet that would show all the other patients seen by Dr. Mullan on April 10, 2000. On June 13, 2000, he responded to the complaint by letter through his attorney. Dr. Mullan’s response to the allegations indicated that he did not drink alcoholic beverages and that any perception by the patient’s mother of glazed eyes and an unsteady gait could be explained by the doctor’s various physical ailments that emulated, but were not attributable to, intoxication. In the letter, Dr. Mullan’s attorney also claimed, mistakenly, that, the requested records and sign-in sheet had been sent to the Board.

As a result of the mistake and other delays, it was not until August 7, 2000 that the Board contacted the parents of all the other patients seen by Dr. Mullan on the day in question. Based on its investigation, on August 23, 2000, the Board summarily suspended Dr. Mullan’s medical license under § 10-226(c)(2) of the APA. Pursuant to § 10-226(c)(2)(ii) and the Board’s regulations, the Board also provided the doctor ¹⁶² with notice and an opportunity for reconsideration of the summary suspension. Availing himself of this option, Dr. Mullan appealed the decision, and in September 2000, a three-day hearing was held before an administrative law judge (ALJ).

The ALJ made the following findings of fact: Of the ten patients seen by Dr. Mullan on April 10, four corroborated the initial parent’s allegations, while another three noticed nothing out of the ordinary. On April 10, Dr. Mullan exhibited symptoms of intoxication which included slurred speech, incoherence, trembling hands, staggering, swaying, the mishandling of a cotton culture swab, and abrasiveness and belligerence toward the parents of his patients. Departing from his normal routine that day, Dr. Mullan failed to complete the patients’ charts, dictate his diagnoses, and make note of the medications he prescribed. Dr. Mullan, who had been treated for alcoholism since 1979, had admitted to his psychiatrist that he was consuming alcohol in May 1999 and May 2000.

The ALJ recommended affirmance of the summary suspension. Dr. Mullan filed exceptions to the findings, and on April 11, 2001, the Board issued a Final Decision and Order, adopting the ALJ’s findings and recommendation and suspending Dr. Mullan as “an emergency action taken to protect the public health and welfare under [§ 10-226(c)(2)].” Dr. Mullan filed a petition for judicial review of the administrative agency’s decision in the Circuit Court for Baltimore County. The Circuit Court affirmed the Board’s summary suspension. Dr. Mullan noted a timely appeal to the Court of Special Appeals.

In an unreported opinion, that court reversed the Board’s finding that summary suspension was “imperatively required” because of a lack of substantial evidence. The court reasoned that the Board’s acquiescence to the delay of four months between the initial filing of the complaint and the decision to suspend, during which Dr. Mullan continued to see patients without complaint from either his patients or the Board, vitiated any evidence that might support the Board’s ¹⁶³ determination that summary suspension was “imperatively required.” The court stated as follows: “By allowing [Dr. Mullan] to treat patients for so long, it seems clear that the [Board] did not perceive an emergency. “In considering whether there truly was an imperative that required a summary suspension of [Dr. Mullan’s] medical license because of a risk to public health and safety, we ask, rhetorically, why the Board would have allowed [him] to treat patients for three months after learning of his conduct if it perceived an emergency. Therefore, we agree ... that the evidence did not justify a summary suspension, and we shall reverse the Order of Summary Suspension.” The Board filed a petition for writ of certiorari in this Court, 377 Md. 111 , 832 A.2d 204 (2003), presenting the following single question: “If a physician’s treatment of his pediatric patients while under the influence of alcohol poses an imminent danger to his patients, does a delay in the investigation of that danger preclude the Board as a matter of law from summarily suspending that physician?” Before this Court, the Board argues that the Court of Special Appeals erred when it took into consideration the lapse of time between the Board’s cognizance of possible misconduct and its decision to suspend summarily. In the Board’s view, the only statutory requirement for summary suspension is that there be a threat to the public health, safety, or welfare, measured at the time the decision to suspend summarily is made.

If at that time the threat persists, the length of the preceding investigation is irrelevant and should form no part of the consideration of whether the circumstances met the statutory criteria. In the alternative, the Board contends that even if the length of time preceding the decision is taken into consideration, the Board has supplied the substantial evidence necessary to uphold its decision to suspend summarily because whatever delay there might have been was reasonable and, moreover, the result of Dr. Mullan’s dilatory and uncooperative legal tactics throughout the investigation. ¹⁶⁴ Dr. Mullan, the respondent, contends that the issue is solely one of statutory interpretation and sufficiency of evidence. Because § 10-226(c)(2) permits summary suspension only when the agency finds a circumstance that “imperatively requires emergency action,” the Board was required to show evidence to that effect. It did not do so.

The record, says respondent, was devoid of any evidence pointing to a substantial likelihood of serious harm at the time of the summary suspension in August. Instead, only the events of April 10, 2000, were seriously considered by the Board which stipulated that the standard of medical care was not violated that day. The mere inference of a risk of harm from events that occurred four months earlier could not satisfy the statutory burden of proof. The Court of Special Appeals, according to respondent, did not base its decision on the prolonged investigation but rather on the lack of substantial evidence in the record to support a finding that the doctor was a serious threat at the time of the suspension.

II

The overarching issue in this case, typical of judicial review of agency decisions, is whether there exists substantial evidence to support the agency’s factual finding. The parties here disagree as to whether the Board’s factual finding with regard to the summary suspension order was supported by “substantial evidence,” which is required by the APA for all agency determinations of fact. § 10-222(h)(3)(v); see Board of Physician v. Banks, 354 Md. 59, 68 , 729 A.2d 376, 380-81 (1999). License suspension proceedings before an administrative agency are contested cases within meaning of the APA. § 10-202(d)(1)(ii). 2 As a contested case, these proceedings are ¹⁶⁵ subject to judicial review under § 10-222. This Court reviews the final decision of the administrative agency and will scrutinize the decision according to established principles of administrative law.

See Spencer v. Board of Pharmacy, 380 Md. 515 , 846 A.2d 341 (2004). Section 10-226(c) governs the revocation or suspensions of licenses under the APA and provides as follows: (1) Except as provided in paragraph (2) of this subsection, a unit may not revoke or suspend a license unless the unit first gives the licensee: (i) written notice of the facts that warrant suspension or revocation; and (ii) an opportunity to be heard. (2) A unit may order summarily the suspension of a license if the unit: (i) finds that the public health, safety, or welfare imperatively requires emergency action; and (ii) promptly gives the licensee: 1. written notice of the suspension, the finding, and the reasons that support the finding; and 2. an opportunity to be heard. The statute opens two paths to the licensing authority when it seeks to suspend or revoke a license.

The first path, § 10-226(c)(1), requires that, prior to the effective date of any revocation or suspension, the licensing authority give the licensee (i) written notice of the facts warranting its decision to suspend and (ii) an opportunity to be heard. § 10-226(c)(1); see Maryland Racing Com’n v. Castrenze, 335 Md. 284, 296-97 , 643 A.2d 412, 418 (1994). The second path toward suspension is an exception to the normal route of § 10-226(c)(1), and it is found in § 10-226(c)(2). Section 10-226(c)(2), unlike § 10-226(c)(1), does not require notice and an opportunity to be heard prior to the suspension. Instead, it provides that the licensing authority “may order summarily the suspension,” forgoing the notice and hearing requirements of § 10-226(c)(1), provided it satis ¹⁶⁶ fies two criteria: First, the licensing authority must find that “the public health, safety, or welfare imperatively requires emergency action.” § 10-226(c)(2)(i).

Second, the licensing authority must “promptly” give the licensee “written notice of the suspension, the finding, and the reasons that support the finding” as well as “an opportunity to be heard.” § 10-226(c)(2)(ii). The Board has published in the Code of Maryland Regulations (C.O.M.A.R.) standards for summary license suspensions. See C.O.M.A.R. 10.32.02.05. Under these regulations, the “administrative prosecutor bears the burden to show by a preponderance of the evidence that the health, welfare, and safety of the public imperatively requires the Board to issue an order to suspend the respondent’s license.” C.O.M.A.R. 10.32.02.05(F)(2). 3 Furthermore, the Board has published an interpretive rule in the C.O.M.A.R. defining “imperatively requires” to mean “that an action must be undertaken pursuant to [§ 10-226(c)(2)] as a result of factual contentions which raise a substantial likelihood of risk of serious harm to the public health, safety, or welfare before an evidentiary hearing governed by the Administrative Procedure Act.” C.O.M.A.R. 10.32.02.02(B)(14).

In considering § 10-226(c)(2), we note at the outset the interpretive difficulty that arises from an apparent contradiction within its text. On the one hand, § 10-226(c)(2) grants the Board discretion to issue a summary suspension order. The Board “may order summarily the suspension of a license.” The word “may” is generally considered to be permissive, as opposed to mandatory, language. See Brodsky v. Brodsky, 319 Md. 92, 98 , 570 A.2d 1235, 1237 (1990); 2A N. Singer, Sutherland on Statutes and Statutory Construction § 57.03 (rev. 4th ed. 1984).

We have interpreted the word “may” to connote a permissive, discretionary function of the agency in ¹⁶⁷ the interpretation of the APA. See Spencer, 380 Md. at 532-33 , 846 A.2d at 351 . In this context, “may” indicates that the Board is free to order a summary suspension according to its discretion, provided it fulfills the two requirements in § 10-226(c)(2)(i)-(ii). On the other hand, one of those requirements, § 10 — 226(e)(2)(i), seems to suggest that the Board must issue a summary suspension because summary suspension is proper only if it is imperatively required.

While the phrase “imperatively requires” in § 10— 226(c)(2)(i) might mislead into an interpretation that takes away the Board’s discretion to issue summary suspensions— an interpretation that transforms “may” into “must” — such an ambiguous and contradictory reading is neither necessary nor reasonable. The phrase “imperatively requires” is found in § 10 — 226(c)(2) (I), which is a subsidiary of the general discretion to summarily suspend found in § 10 — 226(c)(2). As the first criterion for a proper summary suspension order, the phrase “imperatively requires” describes the circumstances that will satisfy § 10 — 226(c)(2)(i)'s requirement of an emergency and signals the degree of exigency contemplated for summary suspension orders. But it does not circumscribe the more general discretion found in § 10 — 226(c)(2), nor does it require the Board to issue a suspension order when the agency finds § 10 — 226(c)(2)(i)’s exigency level reached.

In other words, while an emergency that “imperatively requires” summary suspension is necessary for a valid summary suspension order, it does not compel such an order. In addition to the Board’s finding of an emergency under § 10-226(c)(2)(i), a summary suspension order requires that the Board exercise its discretion to issue such an order under § 10-226(c)(2). Therefore, the phrase “imperatively requires” only describes a characteristic of a threshold requirement for the ignition of the Board’s authority to issue a summary suspension. It does not proscribe the Board’s discretion to utilize, or not