Cornfeld v. State Board of Physicians

⁴⁶² ADKINS, Judge. State Board of Physicians (the Board) found that appellant Edward Cornfeld, M.D. (1) violated the standard of care in his treatment of a surgical patient by leaving her under anesthesia and “unattended in the operating room[,]” and (2) engaged in unprofessional conduct in the practice of medicine by misrepresenting to both a hospital peer review investigator and the Board that improper settings on the surgical instrument he used were not made to his specifications. The Board suspended Dr. Cornfeld’s license to practice medicine until he satisfied certain conditions, and imposed a three year probationary period thereafter.

The Circuit Court for Baltimore City affirmed the Board’s order. Cornfeld appeals, raising five issues for our review, which we rephrase as follows: I. Did the Board err in concluding that Dr. Cornfeld engaged in unprofessional conduct “in the practice of medicine” by making misrepresentations during hospital peer review and Board investigations?

II

Did the Board violate section 14-401(i) of the Medical Practice Act by failing to complete its investigation within 18 months, or to explain its delay, requiring dismissal of the complaint against Cornfeld?

III

Is the Board’s conclusion that Dr. Cornfeld violated the standard of care by leaving an anesthetized patient unattended in the operating room supported by substantial evidence?

IV

Is the sanction imposed by the Board “so disproportionate to the alleged offense as to constitute arbitrary and capricious agency action”? V. Did the administrative law judge abuse her discretion by excluding certain evidence offered by Dr. Cornfeld? We shall hold that Dr. Cornfeld’s false statements to hospital peer reviewers and Board investigators constituted “professional misconduct in the practice of medicine.” Finding substantial evidence to support the Board’s decision, no abuse ⁴⁶³ of discretion, and no error of law, we shall affirm the judgment. STATUTORY SCHEME GOVERNING PHYSICIAN DISCIPLINE In Maryland, physicians are governed by the Medical Practice Act (“the Act”), codified at Md.Code (1981, 2005 RepLVol., 2006 Cum.Supp.), § 14-101 et seq. of the Health Occupations Article (HO).

The Act is administered by the Board, 1 which has both licensing and disciplinary responsibilities. See [¶] § 14-205, § 14-206, § 14-313. In performing these duties, the Board has adopted regulations. See Code of Maryland Regulations (“COMAR”) 10.32.02.

Under the Act, the Board has authority to discipline physicians for enumerated reasons. Section 14 — 404(a) identifies 40 specific bases for disciplinary action, two of which explicitly pertain to conduct committed “in the practice of medicine.” Section 14-404(a)(3) permits the Board to discipline a licensee who “[i]s guilty of immoral or unprofessional conduct in the practice of medicine[.]” Section 14 — 404(a)(ll) authorizes discipline of a physician who “[wjillfully makes or files a false report or record in the practice of medicine[.]” In addition, section 14-404(a)(22) allows disciplinary action against a licensee who “[flails to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in [a] ... hospital[.]” In Md. Bd. of Physicians v. Bernstein, 167 Md.App. 714, 719-21 , 894 A.2d 621 (2006), we detailed the Board’s process for investigating and adjudicating complaints against physicians, and the ensuing process of judicial review. ⁴⁶⁴ The Act authorizes the Board to reprimand a licensed physician, place a licensee on probation, or suspend or revoke a license to practice medicine for enumerated reasons .... When an allegation that may constitute grounds for disciplinary action under the Act comes to the Board’s attention, the Board generally initiates an investigation. [¶] § 14-401(a); COMAR 10.32.02.03A. If the allegation concerns the standard of care and, after an investigation, the Board elects to pursue further investigation, the Board then refers the complaint to the Medical and Chirurgical Faculty of Maryland (“Med Chi”) physician peer review. [¶] § 14-401(c)(2); COMAR 10.32.02.03(B)(1).

The Board and Med Chi have adopted a “Peer Review Handbook” that governs the peer review process. Med Chi prepares a report addressing the allegations against the physician and submits it to the Board. After receiving the Med Chi report, the Board determines whether reasonable cause exists to charge the physician with a failure to meet appropriate standards of care. CO-MAR 10.32.02.03(B)(2).

If the Board files a charge, it refers the matter to an administrative prosecutor and sends notice to the physician. COMAR 10.32.02.03(C) At that point, the physician is entitled to a contested case hearing before an administrative law judge (“ALJ”), in the Office of Administrative Hearings (“OAH”), pursuant to the Administrative Procedure Act, Md.Code (1984, 1999 Repl. Vol.), section 10-201 et seq. of the State Government Article (“SG”). [¶] § 14-405(a); see also COMAR 10.32.02.03(D). Following the hearing, the ALJ issues findings of fact, conclusions of law, and a proposed disposition.

COMAR 10.32.02.03(E)(10).... Either party may file exceptions to the ALJ’s findings and proposed disposition. COMAR 10.32.02.03(F). The Board is not bound by the decision of the ALJ.

After receiving the ALJ’s proposed decision, the Board must review the record and the ALJ’s proposal, and hold a hearing on any exceptions. COMAR 10.32.02.03(F). It then issues a final decision stating its findings of facts, ⁴⁶⁵ conclusions of law, and a disposition of the charge. CO-MAR 10.32.02.03(E)(10).

The Board’s final decision is subject to judicial review in the circuit court in accordance with the Administrative Procedure Act, and then to appeal to this Court. [¶] § 14-408(b). (Footnotes and some citations omitted.) See also Md. Bd. of Physicians v. Elliott, 170 Md.App. 369 , 907 A.2d 321 (reviewing standards for appellate review of Board decision overruling ALJ), cert. denied, 396 Md. 12 , 912 A.2d 648 (2006). FACTS AND LEGAL PROCEEDINGS We recount the facts as they were found by the Board. 2 Dr. Cornfeld practices obstetrics and gynecology. On October 28,1999, he performed a Loop Electrosurgical Excision Procedure (LEEP) on a 31 year old patient admitted to Montgomery General Hospital (MGH), in order to remove abnormal cervical tissue.

The patient was placed under general anesthesia for the procedure. The excision procedure is performed with a Bovie machine, which is a surgical instrument that heats up a fine metal wire shaped into a loop, which in turn is connected to a “Bovie pencil.” The pencil and loop are inserted through the vagina to remove abnormal tissue. Dr. Cornfeld had a card on file at MGH stating that his preference was to have the Bovie machine set at 70 for coagulation and 70 for cervical conization (“cutting”) procedures such as the one he performed that day. But the operating room nurse responsible for overseeing the equipment and patient preparation that day, Sheryl Dickey, initially set the Bovie machine at 50 for both coagulation and cutting, in accordance with standard settings used in most procedures.

Dr. Cornfeld instructed Ms. Dickey to change both settings to 70, and she did so. ⁴⁶⁶ During the procedure, Dr. Cornfeld burned the patient twice, causing a laceration of approximately 6 centimeters. He repaired this with two large Vicryl stitches. Nurse Dickey notified a nurse supervisor who was in the operating room, Joan Fitzgerald, of the burn and sutures. After observing the burn, Fitzgerald left the operating room to consult a supervisor.

When Dr. Cornfeld announced that he had concluded the procedure, Nurse Dickey asked the anesthesiologist not to wake the patient because another surgeon would be coming in to review the patient. Nurse Fitzgerald returned and advised Dr. Cornfeld that she had been instructed to have another physician cheek the patient before she left the operating room. Dr. Cornfeld replied, “Do what you need to do,” then left the operating room. No other surgeon was in the operating room at the time.

It was at least two to three minutes before Dr. Thomas Vincent arrived. Dr. Vincent reviewed the patient, removed the sutures, and resutured the laceration with smaller sutures. After concluding the repair, Dr. Vincent located Dr. Cornfeld, explained what he had done, and asked Dr. Cornfeld what had happened. Dr. Cornfeld discussed the case with Dr. Vincent while the patient was in recovery.

The patient did not suffer any severe or long-term effects from the laceration or suturing. MGH suspended Cornfeld’s hospital privileges shortly after the incident. In July 2000, in a peer review investigation by the hospital, Dr. Cornfeld stated under oath: I don’t think anybody in our department ever sets a bovie at 70 or a cautery at 70 as a starting point. I haven’t heard that they did____ I thought it was routine that when I would come in this thing would be set at 40 or 50.

Following its investigation and peer review, the hospital revoked Dr. Cornfeld’s privileges. The Board initiated an investigation in January 2000. In February 2000, through his attorney, Dr. Cornfeld filed written and signed responses to the Board’s inquiry, stating: ⁴⁶⁷ The nurse who operates this machine was negligent in setting the machine to a heat of seventy to eighty whereas the appropriate setting used by Dr. Cornfeld is forty. Dr. Cornfeld has performed this surgery on many occasions at [MGH] and at other hospitals.

Dr. Cornfeld has standing instructions for the setting of forty, and in every Leep Cone Biopsy, other than this one, the nurse operating the machine has set it to forty without specific instructions from Dr. Cornfeld other than the standing instructions. The Board filed charges against Dr. Cornfeld in November 2003, alleging both violations of standards of care and unprofessional conduct in the practice of medicine. The three alleged violations of the standard of care in treating the patient consisted of the following: 1. Setting the Bovie machine too high for patient safety; Performing an inadequate repair of the laceration caused by the burn; and 2.

Leaving an anesthetized patient unattended by another surgeon in the operating room. After an evidentiary hearing, an administrative law judge initially found that Dr. Cornfeld breached all three standards of care applicable to these charges. After hearing and exceptions, however, the Board concluded that “[t]he clear and convincing evidence demonstrates only that Dr. Cornfeld left an anesthetized patient unattended in the operating room and thus violated section 14-404(a)(22).” The Board’s separate charge of “unprofessional conduct in the practice of medicine” was based on Cornfeld’s statements regarding his instructions for settings on the Bovie machine. These were made to the hospital during its peer review investigation, and to the Board during its investigation and disciplinary proceedings.

The ALJ concluded that these statements were misrepresentations because Dr. Cornfeld had standing instructions to set the Bovie machine at 70, and specifically instructed Nurse Dickey to increase the setting from 50 to 70 before the procedure in question began. Because Dr. Cornfeld’s misrepresentations were made during the ⁴⁶⁸ hospital peer review and Board investigation, however, the ALJ determined that they did not fall within “the practice of medicine.” The Board sustained the State’s exception to that conclusion, determining that Dr. Cornfeld’s misrepresentations during hospital peer review and Board proceedings occurred in the practice of medicine, and violated [¶] section 14-404(a)(3). The Board reasoned that “[b]oth MGH’s and the Board’s investigations involved the manner in which Dr. Cornfeld practiced medicine” and “the manner in which he had treated a patient.” In support, it cited its own precedents that making a false application or submitting false testimony for a Board proceeding are “clearly within the practice of medicine.” The Board sanctioned Dr. Cornfeld by revoking his license to practice medicine until he satisfied certain enumerated conditions, including obtaining “a neuropsychological evaluation” and report, undergoing “a psychiatric evaluation” and therapy as recommended, and completing an “ethics course,” all of which would be selected and reviewed by the Board. Once his suspension lifts, Dr. Cornfeld would continue on probation for three years, during which his practice is subject to “Board review and peer review” at the Board’s discretion.

DISCUSSION Review Of Board’s Decision The standards governing judicial review of the Board’s decision regarding Dr. Cornfeld are set forth Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 , 729 A.2d 376 (1999): A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it 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. ⁴⁶⁹ In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. 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. Despite some unfortunate language that has crept into a few of our opinions, a court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.

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. Furthermore, the expertise of the agency in its own field should be respected. (Internal quotation marks and citations omitted.) See also Md.Code (1984, 2004 Repl.Vol., 2006 Cum.Supp.), § 10-222(h) of the State Government Article (court may affirm, remand for further proceedings, reverse, or modify Board’s decision if it is affected by an error of law, unsupported by substantial evidence, arbitrary or capricious).

I. Unprofessional Conduct “In The Practice Of Medicine” As detailed above, the Board may sanction a physician who is “guilty of immoral or unprofessional conduct in the practice of medicine” or “willfully makes or files a false report or record in the practice of medicine.” [¶] § 14-404(a)(3), § 14-404(a)(ll) (emphasis added). The practice of medicine is statutorily defined as follows: ⁴⁷⁰ (I) Practice medicine. — (1) “Practice medicine” means to engage, with or without compensation, in medical: (1) Diagnosis; (ii) Healing; (iii) Treatment; or (iv) Surgery. (2) “Practice 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: 1. By physical, mental, emotional, or other process that is exercised or invoked by the practitioner, the patient, or both; or 2.

By appliance, test, drug, operation, or treatment....; [¶] § 14-101®. Dr. Cornfeld argues that the Board “committed legal error” when it concluded that his misrepresentations to MGH and the Board occurred in “the practice of medicine.” 3 He asserts that this case is “controlled by the Court of Appeals’ 1984 ruling in McDonnell v. Comm’n on Medical Discipline, 301 Md. 426 , 483 A.2d 76 (1984),” which construed the practice of medicine to exclude physician misconduct involving a civil malpractice trial, rather than by its later decisions in Banks, ⁴⁷¹ 354 Md. at 76 , 729 A.2d 376 , and Finucan v. Md. Bd. of Physician Quality Assurance, 380 Md. 577 , 846 A.2d 377 , cert. denied, 543 U.S. 862, 125 S.Ct. 227 , 160 L.Ed.2d 103 (2004), in which the Court more broadly described the practice of medicine in ruling that it may encompass sexual misconduct toward patients and co-workers. We disagree. McDonnell, Banks, and Finucan In McDonnell , the Court of Appeals reversed a ruling that a physician’s efforts to influence expert witnesses who were scheduled to testify against him in a medical malpractice trial 4 constituted sanctionable conduct in the practice of medicine, within the meaning of the predecessor to current section 14-404(a)(3).

See McDonnell, 301 Md. at 437 , 483 A.2d 76 . Dr. McDonnell’s inappropriate contacts are detailed in Meyer v. McDonnell, 40 Md.App. 524, 525-26 , 392 A.2d 1129 (1978). The first interference occurred during trial and resulted in the witness refusing to testify. 5 The second incident occurred ⁴⁷² after McDonnell became “incensed” at the testimony of another expert witness. 6 The McDonnell Court specifically rejected the Attorney General’s argument that such misconduct “was inextricably related to the practice of medicine” because it “occurred in the utilization of his medical office and. while he was acting as a physician[.]” See id. at 433-34, 483 A.2d 76 . Reviewing the language of the statute, the Court of Appeals observed that the legislature expressly outlined and defined nineteen forms of physician misconduct, some of which had no immediate connection with the diagnosis, care or treatment of patients or the practice of medicine, such as habitual intoxication, conviction ⁴⁷³ of a crime of moral turpitude, or the personal use of illegal drugs.

In only two of the nineteen described types of misconduct are the disciplinary infractions explicitly limited to a physician’s act “in his practice as a physician,” i.e.: “(8) Immoral conduct of a physician in his practice as a physician. (9) Willfully making and filing false reports or records, in his practice as a physician.” Id. at 435-36 , 483 A.2d 76 . 7 For this reason, the McDonnell Court concluded, “it is not any immoral conduct of a physician, or any willful filing of a false report which constitutes ‘unprofessional conduct’; rather, the misconduct must occur in the physician’s ‘practice as a physician.’ ” Id. at 435, 483 A.2d 76 . Given the “punitive aspect” of the Board’s disciplinary proceedings, and that the legislature intended these provisions to reach only immoral conduct that is “directly tied to the physician’s conduct in the actual performance of the practice of medicine, i e., in the diagnosis, care, or treatment of patients.[,]” the Court held that the statutory language “should be strictly construed against the disciplinary agency.” Id. at 436-37 , 483 A.2d 76 . Thus, conduct that has merely “a general or associative relationship to the physician in his capacity as a member of the medical profession” is not sanctionable by the Board.

Id. at 437 , 483 A.2d 76 . Applying this view of the statute, the Court of Appeals concluded that, although “Dr. McDonnell’s act in initiating the improper phone calls was related to his professional practice,” the calls were “not done in the course of the actual practice of medicine[.]” Id. In Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 71 , 729 A.2d 376 (1999), the Court of Appeals affirmed the ⁴⁷⁴ Board’s decision that a physician’s sexual harassment of hospital employees occurred in the practice of medicine. The doctor argued unsuccessfully that “none of his conduct [was] within the practice of medicine because, when it occurred, he was not diagnosing, treating or evaluating patients,” but “merely ‘chatting or socializing with co-workers.’ ” Id.

Following courts elsewhere, the Court of Appeals rejected such “an extremely technical and narrow definition of the practice of medicine.” See id. at 74 , 729 A.2d 376 . The Banks Court reasoned that limiting section 14-404(a)(3) to misconduct that occurs “in a non-clerical task” committed “in the immediate process of diagnosing, evaluating, examining, or treating a patient” “would lead to unreasonable results and render the statute inadequate to deal with the many situations which may arise.” Id. at 73 , 729 A.2d 376 . Instead, the Court concluded, the touchstone for determining whether misconduct occurred “in the practice of medicine” must be whether it was “sufficiently intertwined with patient care” to pose a threat to patients or the medical profession. See id. at 76-77 , 729 A.2d 376 .

When the misconduct occurs “in a hospital setting,” the answer to that question is one the Board “is particularly well-qualified to deeide[.]” Id. at 76 , 729 A.2d 376 . The Board could reasonably hold that Dr. Banks’s conduct of sexually harassing hospital employees was within the practice of medicine because he was on duty and in the working areas of the hospital. When on duty, Dr. Banks was responsible for admitting patients, caring for patients, and assisting in the operating room and emergency department.... When Dr. Banks was on duty he was there for the purpose of practicing medicine; i.e., for the “diagnosis, care, or treatment of patients.” Dr. Banks sexually harassed his co-workers who were present in the working areas of the hospital in connection with the practice of medicine.

This conduct has more than merely a “general or associative relationship” to Dr. Banks’s capacity as a member of the medical profession. The connection to the practice of medicine was sufficient for the Board to ⁴⁷⁵ conclude that it is “in the actual performance of the practice of medicine.” Id. at 72-73 , 729 A.2d 376 (emphasis added). Of particular interest to this appeal is the manner in which the Banks Court distinguished McDonnell. We agree with the Board that this case is distinguishable from McDonnell.

In McDonnell, the physician’s conduct occurred during judicial proceedings against him based upon conduct constituting malpractice. His conduct did not occur in the workplace where he was present for the purpose of practicing medicine. Id. at 72, 729 A.2d 376 (emphasis added). In its most recent decision interpreting the “practice of medicine” language in section 14-404(a), the Court of Appeals held that a physician’s misconduct in engaging in consensual sexual relations with patients under his care occurred in the practice of medicine.

In Finucan v. Md. Bd. of Physician Quality Assur., 380 Md. 577, 597 , 846 A.2d 377 (2004), the Court reiterated its holding in Banks “that if the physician’s misconduct relates to the effective delivery of patient care, the misconduct occurs in the practice of medicine.” It again rejected a “narrow interpretation” of “the practice of medicine,” this time dismissing arguments that the Board’s authority to sanction misconduct is limited to actions while the physician is “ ‘on duty’ in medical environs,” or to actions that “reflect[ed] adversely on his technical skills as a physician.” See id. at 598, 601, 846 A.2d 377 . To the contrary, the Court reasoned, misconduct need not “raise doubts about the individual’s grasp of particular technical skills.” Id. at 601 , 846 A.2d 377 . It is enough that the misconduct “indicate[s] unfitness to practice medicine” by “raising] reasonable concerns that an individual abused ... the status of being a physician in such a way as to harm patients or diminish the standing of the medical profession in the eyes of a reasonable member of the general public.” Id. at 601 , 846 A.2d 377 . Quoting our opinion, Judge Harrell pointed to “four particularly cogent points” supporting the Board’s conclusion that Dr. ⁴⁷⁶ Finucan’s misconduct was intertwined with patient care in such a manner that it posed a threat to his patients and “diminishe[d] the standing of the medical profession as caregivers.” See id. at 598, 601 , 846 A.2d 377 .

Specifically, Finucan’s sexual relationships (1) “grew directly out of ... and were entangled with” his physician-patient relationships, (2) “exploited, to his own ends, the trust that his patients placed in him as their physician[,]” (3) “risked losing ... the objectivity that any physician must have when caring for patients[,]” and (4) “damaged his patients emotionally.” Id. at 598-99 , 846 A.2d 377 . Dr. Cornfeld’s Contentions Relying on McDonnell, Dr. Cornfeld argues that the responses he gave to hospital and Board investigators 8 concerning what happened in the MGH operating room on October 28, 1999 did not constitute “the practice of medicine.” In Cornfeld’s view, his misconduct, like Dr. McDonnell’s, did not occur “in the practice of medicine” because it “took place in the context of ‘judicial proceedings’ against the doctor due to allegations of inappropriate medical care.” The doctor argues that the Board erred “in suggesting that in issuing Banks the Court of Appeals intended to so dramatically broaden the definition of the phrase ‘practice of medicine’ to encompass facts such as presented in this case.” To be sure, unlike Finucan and Banks , the misconduct in this instance does not consist of predatory sexual behavior involving patients or hospital co-workers. Moreover, like McDonnell, this case involves misconduct that occurred during proceedings that arguably “adjudicated” the medical propriety of Dr. Cornfeld’s care. In light of the Court of Appeals’ ⁴⁷⁷ rejection of a “narrow view” of the practice of medicine in both Banks and Finucan , however, we do not agree with Dr. Cornfeld that McDonnell so narrowly defined the practice of medicine that it necessarily excludes professional misconduct during hospital peer reviews and Board disciplinary proceedings.

The discussion in McDonnell of what constitutes the practice of medicine was limited. The Court of Appeals’ analysis simply stated that it must be “directly tied to the physician’s conduct in the actual performance of the practice of medicine, i.e., in the diagnosis, care, or treatment of patients!.]” McDonnell, 301 Md. at 435 , 483 A.2d 76 . We find nothing in McDonnell to suggest that all misconduct during an adjudicative proceeding is necessarily excluded from the “practice of medicine,” or that a physician’s dishonesty during hospital peer review and Board investigation of patient care cannot be “directly tied to” his practice of medicine. Moreover, McDonnell is factually distinguishable in critical respects.

Dr. McDonnell’s misconduct consisted of interfering with prospective witnesses in a medical malpractice trial involving his former patient. He initiated improper phone calls from his medical office, in an effort to influence testimony by fellow physicians, by warning them that there would be professional consequences for testifying against him. But McDonnell did not discuss his diagnosis or treatment of any patient. See id. at 429-30, 483 A.2d 76 ; Meyer, 40 Md.App. at 525-27 , 392 A.2d 1129 .

Thus, his misconduct did not occur in the practice of medicine, because it did not concern patient care issues and did not involve the exercise of McDonnell’s judgment as a physician. In its subsequent decisions in Banks and Finucan , the Court of Appeals examined in greater detail the scope and policies underlying the standard it articulated in McDonnell. Explicitly rejecting a “narrow view” of the “practice of medicine!,]” the Court emphasized that the nature and effect of a particular act of professional misconduct determines whether it occurred in the practice of medicine. Misconduct reason ⁴⁷⁸ ably may be considered to be in the practice of medicine when it “relates to the effective delivery of patient care[.]” See Finucan, 380 Md. at 597 , 846 A.2d 377 ; Banks, 354 Md. at 74 , 729 A.2d 376 .

Such a relationship may be established by evidence that the physician abused his status as a physician in a manner that either harmed patients, created a substantial risk of harm to them, or diminished the standing of the medical profession as caregivers. See Finucan, 380 Md. at 601 , 846 A.2d 377 ; Banks, 354 Md. at 74 , 729 A.2d 376 . The presence of one or more of these effects sufficiently ties the physician’s misconduct to the exercise of medical judgment and duties to warrant a finding that it occurred “in the practice of medicine.” See Finucan, 380 Md. at 598-99 , 846 A.2d 377 ; Banks, 354 Md. at 62-64 , 729 A.2d 376 ; McDonnell, 301 Md. at 436-37 , 483 A.2d 76 . Given the blatant “on the job” sexual misconduct of Drs.

Banks and Finucan, neither of those decisions definitively answers whether Dr. Cornfeld’s misconduct occurred in the practice of medicine. We have not found a reported case considering whether a treating physician’s dishonesty in hospital peer review or state disciplinary proceedings falls within “the practice of medicine.” 9 ⁴⁷⁹ The Board’s conclusion that Dr. Cornfeld’s false statements to the hospital and the Board constituted “professional misconduct in the practice of medicine” has “considerable weight” in this Court, because the Board’s expertise in interpreting and applying [¶]