Burke v. Bd. of Physicians

Thomas F. Burke, M.D. v. Maryland Board of Physicians, No. 0513, September Term 2020. Opinion by Wells, J. ADMINSTRATIVE LAW AND PROCEDURE – JUDICIAL REVIEW – AGENCY EXPERTISE – SCOPE OF REVIEW The scope of review is limited to the factual findings and legal conclusions made by the Board. Administrative agency final orders are subject to deferential judicial review. Appellate courts review final agency decisions in the light most favorable to the agency as agency decisions are presumed correct.

A reviewing court may not substitute its judgment for the agency’s expertise. ADMINSTRATIVE LAW AND PROCEDURE – JUDICIAL REVIEW – SUBSTANIAL EVIDENCE An agency’s findings must be supported by substantial evidence in the record made before the Board. Substantial evidence is “evidence that ‘a reasonable mind might accept as adequate.’” Motor Vehicle Admin. v. Pollard, 466 Md. 531, 537 (2019). HEALTH – PROFESSIONAL REGULATION – DISCIPLINE, REVOCATION, AND SUSPENSION – MORAL TURPITUDE Moral turpitude in the criminal context focuses on truthfulness whereas moral turpitude in the administrative context is a broader and more fluid concept.

In the administrative law context, moral turpitude affects public confidence in the administration of government. Stidwell v. Md. State Bd. of Chiropractic Exam’rs, 144 Md. App. 613, 619 (2002). HEALTH – PROFESSIONAL REGULATION – DISCIPLINE, REVOCATION, AND SUSPENSION – CRIMINAL CONVICTION – MORAL TURPITUDE Based on the precedent established in Stidwell, 144 Md. App. 613 , we hold that the appellant’s “intentional and knowing” decision to prescribe controlled dangerous substances outside the course of acceptable medical standards constituted a crime of moral turpitude. While the appellant may still have credibility to testify in court, his actions decreased the public’s confidence in the practice of medicine.

HEALTH – PROFESSIONAL LICENSING – MORAL TURPITUDE – PRESCRIPTIONS – CONTROLLED DANGEROUS SUSBTANCES – GUILTY PLEA The appellant’s guilty plea to five counts of the misdemeanor offense of writing prescriptions for controlled dangerous substances outside the scope of the medical profession was a conviction for a crime involving moral turpitude. Md. Code Ann., Crim Law § 5-902 . Here, the Board properly concluded that the appellant pleaded guilty to a crime involving moral turpitude because the appellant’s actions undermined the public’s confidence in the practice of medicine. CONSTITUIONAL LAW – DUE PROCESS – PROPERTY INTEREST – MEDICAL LICENSE A licensed medical professional has a property right in their medical license and this right cannot be deprived without due process of law.

The right to practice medicine is subject to the police power of the State to regulate public health and safety. CONSTITUIONAL LAW – DUE PROCESS – PROPERTY INTEREST – MEDICAL LICENSE While the appellant had a property interest in his license, the State did not deprive him due process by summarily suspending his license because the property right was subject to the State’s police powers. ADMINSTRATIVE LAW – JUDICIAL REVIEW – ARBITRARY AND CAPRCIOUS Arbitrary and capricious review applies to review of the agency’s discretionary functions. A reviewing court applies a high level of deference to an agency’s exercise of its discretionary power.

A reviewing court will only intervene in an agency’s discretionary decisions if the agency acted “arbitrary or capricious.” ADMINSTRATIVE LAW – JUDICIAL REVIEW – ARBITRARY AND CAPRCIOUS – DEFERENCE TO AGENCY Here, the agency’s decision to charge the appellant under Md. Code Ann., Health Occ. §14-404 (b), rather than § 14-404(a) was not arbitrary or capricious. The guilty plea provided the necessary facts for the Board to conclude that the appellant pleaded guilty to a crime involving moral turpitude. The Board properly exercised its discretion in choosing to proceed with summary disposition under §14-404(b). HEALTH – PROFESSIONAL REGULATION – DISCIPLINE, REVOCATION, AND SUSPENSION – HEARING Md. Code Ann., Health Occ. §14-404 (b) mandates license revocation if the Board concludes an individual has been convicted of or pleaded guilty to a crime involving moral turpitude.

The Board may hold a hearing, but hearings are solely limited to contestable issues to allow for expedited and summary disposition. Crimes involving moral turpitude will ordinarily be resolved without the need for evidence or fact-finding, thus eliminating the need for a hearing. HEALTH – PROFESSIONAL REGULATION – DISCIPLINE, REVOCATION, AND SUSPENSION – HEARING In this case, the agency’s decision to deny the appellant’s request for a hearing was not arbitrary or capricious because the statute allows the Board to proceed with summary disposition after an individual has been convicted of a crime involving moral turpitude. Circuit Court for Baltimore City Case No. 24C19007001 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0513 September Term, 2020 _____________________________________ THOMAS F. BURKE, M.D. v. MARYLAND BOARD OF PHYSICIANS _____________________________________ Berger, Friedman, Wells, JJ. _____________________________________ Opinion by Wells, J. _____________________________________ Filed: April 28, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-10-28 14:42-04:00 Suzanne C. Johnson, Clerk After Doctor Thomas F. Burke entered guilty pleas to five counts of prescribing controlled dangerous substances in violation of Md. Code Ann., Crim.

Law (“CR”) § 5- 902(c), the Maryland State Board of Physicians (the “Board”) found that his conduct constituted crimes of moral turpitude and revoked his medical license. The Circuit Court for Baltimore City affirmed. Dr. Burke appealed. We affirm the circuit court’s decision.

BACKGROUND FACTS AND PROCEDURAL HISTORY Doctor Burke was licensed to practice medicine in Maryland on July 21, 1995, under license number D47746. He remained a practicing physician until the Board revoked his license on November 20, 2018. Dr. Burke is board-certified by the American Board of Internal Medicine in general Internal Medicine, Pulmonary Disease, Critical Care and Sleep Medicine. He is also certified in Sleep Medicine by the American Board of Sleep Medicine.

Beginning in 2001 and up until his license was revoked, he practiced at Chesapeake Pulmonary Associates in Fallston. A. Dr. Burke’s Criminal Charges The Grand Jury for Harford County returned a sixty-two-count indictment against Dr. Burke on February 28, 2018, charging him with various offenses related to the distribution, possession, or the writing of prescriptions for controlled dangerous substances (“CDS”). On January 28, 2019, Dr. Burke pleaded guilty to five counts, each alleging a violation of CR § 5-902(c), namely, writing prescriptions outside “the course of regular professional duties.” At the plea hearing, he admitted to writing several prescriptions for Schedule II and IV CDS,1 such as, Valium (Diazepam), Xanax (Alprazolam), Adderall (Amphetamine), and Oxycodone for his long-term girlfriend, his brother, and his neighbor. Dr. Burke admitted that he did not conduct a medical examination for any of these individuals nor did he provide a medical rationale for any of the prescriptions.

He insisted that he wrote these prescriptions because none of the recipients had a primary care physician and, according to Dr. Burke, each individual had been prescribed the same medications by a physician on a prior occasion. On January 28, 2019, the Circuit Court for Harford County sentenced Dr. Burke to two-years’ incarceration on each count, to be served consecutively, with all but three years suspended and imposed a period of probation. The court gave credit against the sentence for time served awaiting disposition. As a condition of the plea, Dr. Burke surrendered his Drug Enforcement Administration and Maryland CDS registrations during the term of probation.

B. Maryland Board of Physicians Initial Proceedings On November 20, 2018, prior to Dr. Burke entering the guilty pleas as described, the Board summarily suspended his medical license under Md. Code Ann., State Gov’t § 10-226(c)(2) after concluding that emergency action was required to protect the public’s health, welfare and safety. Dr. Burke did not challenge this summary suspension. 1 Schedule II drugs include “drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous.” Drug Scheduling, Drug Enforcement Admin., https://www.dea.gov/drug-scheduling. Oxycodone and Adderall are Schedule II drugs.

Id. Schedule IV drugs include “drugs with a low potential for abuse and low risk of dependence.” Id. Xanax is Schedule IV. Id. 2 Later, on December 3, 2018, the Board charged Dr. Burke with violating Md. Code, Health Occupations (“HO”) § 14-404(a)(3)(ii) and (a)(27).2 Dr. Burke requested a Disciplinary Committee for Case Resolution Conference (“DCCR”) as provided by HO § 14-404(a).

The DCCR conference was initially scheduled for April 2019, but Dr. Burke requested a postponement, so the hearing was rescheduled to September 25, 2019. In the meantime, on May 7, 2019, the Office of Attorney General (“OAG”) filed a petition to revoke Dr. Burke’s medical license based on his January 2019 convictions. The Board charged Dr. Burke under HO § 14-404(b)3 and issued a petition to show cause. 2 (a) Subject to the hearing provisions of § 14-405 of this subtitle, a disciplinary panel, on the affirmative vote of a majority of the quorum of the disciplinary panel, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee: (3) Is guilty of: (i) Immoral conduct in the practice of medicine; or (ii) Unprofessional conduct in the practice of medicine; * * * (27) Sells, prescribes, gives away, or administers drugs for illegal or illegitimate medical purposes…. Md. Code, Health Occupations Article § 14-404(a)(3)(ii) and (a)(27). 3 (b)(1) On the filing of certified docket entries with the Board by the Office of the Attorney General, a disciplinary panel shall order the suspension of a license if the licensee is convicted of or pleads guilty or nolo contendere with respect to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside.

(2) After completion of the appellate process if the conviction has not been reversed or the plea has not been set aside with respect to a crime involving moral turpitude, a disciplinary panel shall order the revocation of a license on the certification by the Office of the Attorney General. 3 These charges were in addition to the charges that had been previously filed under HO § 14-404(a). Dr. Burke and his counsel responded to the show cause petition on June 24, 2019 requesting that the Board deny the petition. On September 9, 2019, the Board issued a Final Decision and Order and revoked Dr. Burke’s medical license. The Board found that Dr. Burke’s convictions on five counts of prescribing CDS outside the course of his regular professional duties constituted crimes of moral turpitude and were violative of the standards of the medical profession.

The Board then cancelled the September 25, 2019 DCCR because the Board had now revoked Dr. Burke’s license under HO § 14-404(b)(2), which does not require the Board to hold a hearing if it concludes that the conduct underlying the revocation involved moral turpitude. C. Judicial Review of the Board’s Decision On October 9, 2019, Dr. Burke filed a petition for judicial review in the Circuit Court for Baltimore City. The Board opposed. After the June 25, 2020 hearing, the circuit court affirmed the Board’s decision in a written memorandum and order.

Dr. Burke filed a timely appeal. Standard of Review The Maryland Board of Physicians is an adjudicative administrative body in the Executive Branch of the Maryland state government and “its decisions are subject to the same standards of judicial review as adjudicatory decisions of other administrative agencies.” NIHC, Inc. v. Comptroller of Treasury, 439 Md. 668, 683 (2014). This Court confines its review to the administrative agency’s decision and does not review the decision of the circuit court. Motor Vehicle Admin. v. Pollard, 466 Md. 531, 537 (2019); Frey v. 4 Comptroller of Treasury, 422 Md. 111, 136-37 (2011) (noting that “[o]n review of an agency’s decision, we focus on the agency’s decision and look past the circuit court’s decision”); Consumer Prot.

Div. v. Morgan, 387 Md. 125, 160 (2005) (explaining that the Court “review[s] directly the action of the agency, rather than the decision of the intervening reviewing courts”). Final decisions are reviewed “in accordance with the well-established principles of administrative law.” Para v. 1691 Ltd. P’ship, 211 Md. App. 335, 354 (2013). An administrative agency’s final order “is subject to deferential judicial review.” Id. (quoting Carriage Hill Cabin John, Inc. v. Md. Health Res.

Planning Comm’n, 125 Md. App. 183, 220 (1999)); Md. Nat’l Capital Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 84 (2009) (“Review of an administrative agency’s action generally is a narrow and highly deferential inquiry.”). A reviewing court reviews “the agency’s decision in the light most favorable to it” because the agency’s decision “is prima facie correct and presumed valid” as it is within the agency’s role to resolve evidentiary conflicts. Md. Aviation Admin v. Noland, 386 Md. 556, 571 (2005) (quoting Bd. Of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 (1999)); Md. State Bd. of Social Exam’rs v. Chertkov, 121 Md. App. 574, 583 (1998) (“Final decisions are presumptively correct, and a court must show deference both to findings of fact and drawings of inferences by an agency.”).

This Court, however, cannot uphold or reverse the decision of the Board on any grounds “other than the findings and reasons set forth by the [Board].” Gore Enter. Holdings, Inc. v. Comptroller of Treasury, 437 Md. 492, 503 (2014); Frey, 422 Md. at 137 ; 5 Md. Code Ann., State Gov’t § 10-222 (h)(1-3) (explaining that on review the court may remand the case, affirm the final decision or “reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion or decision . . . is unsupported by competent, material, and substantial evidence in light of the entire record as submitted” or “is arbitrary or capricious”). The substantial evidence standard refers to “evidence that ‘a reasonable mind might accept as adequate.’” Pollard, 466 Md. at 537 ; Frey, 422 Md. at 136-37 (explaining that substantial evidence “consider[s] whether a reasoning mind reasonably could have reached the factual conclusion the agency reached”). This standard is applied to both the agency’s factual findings and mixed questions of law and fact, such as to “issues of whether the agency applied the law correctly to the facts.” Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 84 ; Frey, 422 Md. at 137 (“We review factual findings and inferences therefrom under a substantial evidence standard.”); Gen.

Motors Corp. v. Bannings Beltway Pontiac, 138 Md. App. 671 (2001). The entire record is reviewed to determine whether the final order is “supported by substantial evidence and correct conclusions of law.” Pollard, 466 Md. at 537 ; Bd of Directors of Cameron Grove Condo., II v. State Comm’n on Hum. Relations, 431 Md. 61, 80 (2013); Para, 211 Md. App. at 354 (explaining that the reviewing court looks to “whether the agency’s findings were supported by substantial evidence in the record made before the agency”); Greater Baden-Aquasco Citizens Ass’n, 412 Md. at 84 (noting that the reviewing court examines whether “there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the 6 administrative decision is based on an erroneous legal conclusion”); Noland, 386 Md. at 571 (quoting Banks, 354 Md. at 67-69 ) (explaining that a reviewing court is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law”); Stidwell v. Md. State Bd. of Chiropractic Exam’rs, 144 Md. App. 613, 616 (2002). The Court, however, has the authority “to overrule an agency’s factual finding only when the finding is ‘unsupported by competent, material, and substantial evidence in light of the entire record as submitted.’” Spencer v. Bd. of Pharmacy, 380 Md. 515, 529 (2004) (citing State Gov’t § 10-222(h)(3)(v)).

Great weight is afforded to the legal conclusions drawn by the agency “when they are premised upon an interpretation of the statutes that the agency administers and the regulations promulgated for that purpose.” Frey, 422 Md. at 138 . Although the reviewing court affords great weight to the legal conclusions drawn from the interpretation of the agency’s statutes, the court affords no deference to an agency’s “application and analysis of caselaw.” Pollard, 466 Md. at 527 . On judicial review, this Court may substitute its judgment for the agency’s judgment to determine whether the agency’s conclusions of law are correct. Spencer, 380 Md. at 528 (2004).

DISCUSSION I. Substantial Evidence Supports the Board’s Conclusion that Dr. Burke Committed Crimes of Moral Turpitude a. Parties’ Contentions 7 Dr. Burke contends that the Board’s decision to revoke his license was not based on substantial evidence. He claims the Board failed to analyze the specific facts and circumstances of his case before concluding that he pleaded guilty to crimes of moral turpitude. Therefore, in his opinion, the Board had no grounds to revoke his medical license.

The Board argues that substantial evidence supports its decision. The Board emphasized that the term “moral turpitude” is not limited to its common law definition but has a broader meaning in the administrative law context. b. Moral Turpitude We have said that the phrase “moral turpitude” is “chameleon-like, adopting different shades of meaning in different legal contexts,” eluding a fixed definition. Stidwell, 144 Md. App. at 617 .

Generally, moral turpitude “has been defined . . . as importing ‘an act of baseness, vileness or depravity in the private and social duties which [one] owes to his fellow[s]…, or to society in general, contrary to the accepted and customary rule of right and duty between [persons].’” Att’y Grievance Comm’n of Md. v. Walman, 280 Md. 453, 459 (1977) (citing Braverman v. Bar Ass’n of Balt., 209 Md. 328, 344 (1956)). The expression “moral turpitude,” as developed at common law, referred to “infamous crimes, that precluded their perpetrators from testifying.”4 Oltman v. Md. State Bd. of Physicians, 162 Md. App. 457, 484 (2005) (citing Stidwell, 144 Md. App. at 616 ). 4 While moral turpitude does not refer to any specific set of crimes, infamous crimes included “treason, felony, perjury, forgery, and other crimen falsi offenses, which impressed upon their perpetrator such a moral taint that to permit the perpetrator to testify in legal proceedings would injuriously affect the public administration of justice.” Oltman, 162 Md. App. at 484 . 8 While Maryland has abrogated the statute disqualifying individuals convicted of infamous crimes from testifying, these crimes may still be used to impeach witnesses. Stidwell, 144 Md. App. at 617 . In a criminal context, moral turpitude tends to focus “primarily on truthfulness,” whereas in the administrative law context it is a more fluid concept.

Id. at 618 . “For the business of professional licensing and public appointments, the expression [moral turpitude] strikes the broader chord of public confidence in the administration of government.” Id. at 619 ; Oltman, 162 Md. App. at 484 (explaining moral turpitude is broadly defined in terms of professional licensing). Stidwell is instructive. There, the Maryland State Board of Chiropractic Examiners denied the petitioner’s application to practice massage therapy because of the petitioner’s prior conviction for solicitation. 144 Md. App. at 615 . The circuit court affirmed the Board’s conclusion that solicitation was a crime of moral turpitude.

Id. at 615-16 . This Court held that while the appellant was “qualified to give testimony, or to be certified in another profession,” the appellant’s “prurient offense casts an unsavory, even menacing shadow” over the field of massage therapy. Id. at 618 . We explained that the definition of moral turpitude is different in the context of administrative law and so, “a person who has credibility to testify may not have the public’s confidence to practice certain professions or to serve on a governmental board.” Id. at 618 . c.

The Elements of CR § 5-902 Establish Moral Turpitude. Dr. Burke next argues that the offense to which he pleaded guilty did not constitute a crime of moral turpitude. We disagree and explain. Determining whether an individual has been convicted of a crime involving moral turpitude “necessarily begins with an 9 examination of the criminal statute itself.” Walman, 259 Md. at 460.

If the criminal statute does not establish moral turpitude on its face, then the analysis “hinges on the facts present in the individual case at hand.” Id. at 462. The statute to which Dr. Burke pleaded guilty is CR § 5-902(c),5 which, in relevant part, states: (c) An authorized provider may not prescribe, administer, manufacture, distribute, dispense, or possess a controlled dangerous substance, drug paraphernalia, or controlled paraphernalia except: (1) in the course of regular professional duties; and (2) in conformity with this title and the standards of the authorized provider’s profession relating to controlled dangerous substances, drug paraphernalia, or controlled paraphernalia. Dr. Burke pleaded guilty to five counts of prescribing CDS outside “the course of regular professional duties” and not within “conformity . . . [of] the standards of [his] profession,” specifically, Oxycodone, Amphetamine (commonly known as “Adderall”), Alprazolam (commonly known as “Xanax”) and Diazepam. In entering a guilty plea to these charges, Dr. Burke admitted to engaging in conduct “that constitute[d] all the elements of a formal criminal charge.” Metheny v. State, 359 Md. 576, 599 (2000) (citing Sutton v. State, 289 Md. 359, 364 (1981)).

A guilty plea is the admission of guilt of a substantive crime. Id. His guilty plea established his guilt and admission to prescribing CDS not in accordance with his professional duties. 5 Dr. Burke urges us to conclude that the circuit court erred as a matter of law because the