Finucan v. Maryland Board of Physician Quality Assurance

HARRELL, Judge. On 21 October 1998, Respondent, the Board of Physician Quality Assurance 1 (“the Board”), received a written complaint from a female patient of Thomas E. Finucan, Jr., M.D., Petitioner, alleging that Finucan engaged in a sexual relationship with her while concurrently acting as her physician. The subsequent investigation by the Board disclosed that, between 1993 and 1998, Finucan engaged in a series of sexual relationships with several female patients while maintaining, at the same time, a physician-patient relationship with them. The Board charged Finucan with “immoral or unprofessional conduct in the practice of medicine.” Following an administrative evidentiary hearing, an Administrative Law Judge (ALJ) of the Maryland Office of Administrative Hearings (OAH) concluded that Finucan had engaged in sexual relationships with three of his female patients during the time they were his patients.

The ALJ recommended revocation of Finucan’s license to practice medicine in Maryland. On 21 December 2000, the Board adopted the ALJ’s findings and imposed license revocation as the appropriate sanction for the misconduct revealed by the facts. Finucan sought judicial review of the Board’s final order. After hearing oral argument, the Circuit Court for Talbot County affirmed the Board’s decision.

On direct appeal by Finucan, the Court of Special Appeals affirmed. We granted Finucan’s petition for a writ of certiorari, Finucan v. Board of Physicians, 377 Md. 275 , 833 A.2d 31 .(2003), to consider the sole question posed in his petition: Does a physician commit immoral or unprofessional conduct in the practice of medicine [ ] by engaging in consensual sexual activity with a patient concurrent with the existence ⁵⁸¹ of a physician-patient relationship, in the absence of evidence that such activity occurred while the physician was actually engaged in the treatment and care of the patient? I. Petitioner was a physician who, from 1985 until 2001, practiced as a family practitioner in Cecil County, Maryland. He maintained a private practice from a medical office in North East, was on the staff at Union Hospital in Elkton, and also worked at Perry Point Veterans Medical Center.

This case commenced on 21 October 1998 when the Board received a written complaint from a female patient (“Patient A”) alleging that Finucan engaged in a sexual relationship with her while acting as her physician. The subsequent investigation of the complaint by the Board suggested that, from 1993 through 1998, Finucan engaged in a series of sexual relationships with several then current patients. A. Administrative Proceedings The Board charged Finucan on 30 September 1999 with “immoral or unprofessional conduct in the practice of medicine” under the Maryland Medical Practice Act (“the Act”), Md.Code (1981, 1994 Repl.Vol.), § 14-404(a)(3) of the Health Occupations Article. 2 A seven-day evidentiary hearing was conducted before an ALJ. After hearing from fifteen witnesses and considering seventy exhibits, the ALJ issued a Revised Proposed Decision 3 concluding that Finucan violated ⁵⁸² the Act by engaging in sexual relationships with three female patients — Patients A, B, and D — while concurrently maintaining physician-patient relationships.

The ALJ also concluded, however, that the Board had not proved similar charges involving Patient C. Finucan filed written Exceptions with the Board. After an exceptions hearing, the Board issued its Final Decision and Order on 24 January 2001, adopting the Revised Proposed Decision of the ALJ and revoking Finucan’s license to practice medicine'. Facts Found as to Patient “A” The Board found that Finucan began an intimate sexual relationship with Patient A during 1995 at a time when he also was treating her for a seizure disorder, high blood pressure, and emotional problems. Patient A initially consulted Finucan as her physician in 1993 for emotional difficulties following a separation from her second husband.

Finucan began calling Patient A at home in September 1995, while she was a still a patient, to give her medical test results. He continued to call her at home, ultimately asking for and receiving directions to her house. He then began visiting her in the evenings and the two began a consensual sexual relationship before the end of 1995. During the intimate relationship, Finucan requested that Patient A have her tubal ligation reversed so that she could bear his child.

In addition, he assisted Patient A in having her driving privilege reinstated, writing a supporting letter, dated 15 December 1995, toward that end. Patient A viewed Finucan as “her champion” in this effort. In June 1996, during the course of Patient A’s treatment by Finucan for high blood pressure, Patient A became dissatisfied with her treatment and caused her patient file to be transferred to ⁵⁸³ another doctor for his review. The intimate relationship ceased for a couple of months beginning in June 1996, when the parties had a falling out, but resumed again.

In June 1997, Patient A went with a hurt shoulder for an office visit with Finucan. Subsequently, he brought drug samples to Patient A’s home to treat her shoulder. Sometime during 1997 or 1998, Finucan also brought antibiotics to Patient A’s home to treat her sinus infection. Finucan and Patient A continued their parallel professional and sexual relationships until September 1997.

In September, he saw her as a patient for the last time, treating her for multiple bee stings. In approximately the Spring of 1998 the intimate relationship between Finucan and Patient A ended. As a result of psychological difficulties arising out of Patient A’s intimate relationship with Finucan, she began seeing a therapist in July 1998. Facts Found as to Patient “B” In the Spring of 1996, Patient B visited Finucan at his medical office, complaining of a hip injury.

They flirted at that time and made arrangements to meet at a park a few days later. Approximately five weeks after first treating Patient B for her hip injury, Finucan began having a sexual relationship with her. Some of the sexual encounters occurred at an apartment that Finucan maintained adjacent to his medical practice. Patient B was married at the time, and her husband was also a patient of Finucan.

Patient B convinced her husband that they should transfer their teen-age daughter’s care to Finucan as well. During the intimate relationship, Finucan requested Patient B to bear a child by him. Patient B responded that she previously underwent a tubal ligation and was unable to conceive. Nevertheless, Patient B visited another doctor to inquire about a tubal ligation reversal, but did not follow through with the process.

Finucan and Patient B continued their parallel professional and sexual relationships until February 1997, when they had sexual relations for the last time. Patient B continued, however, as his patient, being treated for ⁵⁸⁴ anxiety in March 1997. Finucan ended the intimate relationship with Patient B against her will. Patient B had a difficult time dealing with the break-up and reacted by pursuing Finucan, following him around, appearing at his home and office uninvited and unwelcome.

After ending her intimate relationship with Finucan, Patient B received psychotherapy to deal with sequelae issues of distrust, shame, self-blame, and anger. Facts Found as to Patient “D” Finucan was the primary care physician for Patient D, her husband, and their three daughters. Finucan, married at the time himself, was able to initiate a sexual relationship with Patient D by using knowledge gained from his physician-patient relationship with her husband. Patient D’s husband visited Finucan for a physical examination as part of a government job application process.

Finucan learned from him that he would be away from home at training for several months, returning only on weekends. In early 1993, while Patient D’s husband was away, Finucan began his sexual relationship with Patient D. On one occasion, Patient D’s husband returned home and found Finucan sleeping in the marital bed. Patient D’s marriage crumbled as a direct result of Finucan’s sexual relationship with her. In the Fall of 1993, Patient D began working for Finucan in his medical office as a Registered Nurse.

During the intimate relationship, Finucan asked Patient D to have his baby. In 1994, Patient D moved in with Finucan. She underwent fertility testing at his request. Finucan became engaged to Patient D while continuing to provide medical care to her and her family.

In early June 1995, Patient D took an overdose of a prescription medication in an apparent suicide attempt and was admitted to the Intensive Care Unit at Union Hospital. At that time, she listed Finucan as her family physician. Finucan was the admitting and attending physician and had significant involvement in her care for the overdose. She was discharged from the hospital to Finucan’s continuing care. ⁵⁸⁵ Approximately one year later, Patient D and Finucan ended their sexual relationship.

Expert Testimony Herbert L. Muncie, Jr., M.D., Chair of the Department of Family Medicine at the University of Maryland School of Medicine and an expert in physician-patient boundary issues and the ethical practice of medicine, testified as the Board’s witness before the ALJ. Dr. Muncie testified that boundaries are important in the physician-patient relationship, in part because of the powerful role that the physician plays in that relationship. He observed that a patient may develop warm feelings for the physician and consequently be unable to perceive clearly the proper role to which the physician must adhere ethically and medically. The physician, therefore, must take care not to exploit the advantage he or she naturally may gain over his or her patients.

The ALJ also received in evidence, at the Board’s behest, the Board’s Spring 1993 newsletter article entitled Sexual Misconduct in the Practice of Medicine (the Board’s newsletter is disseminated quarterly to all physicians licensed in the State of Maryland) and a Journal of the American Medical Association article also entitled Sexual Misconduct in the Practice of Medicine, 19 JAMA 2741 (1991), both of which state that sexual contact that occurs concurrently with the physician-patient relationship constitutes sexual misconduct on the physician’s part. ALJ’s Findings and Conclusions The ALJ, in September 2000, found in his written findings of fact and conclusions of law that the evidence was “overwhelming” that Finucan “pursued multiple sexual relationships with his female patients over a period of several years.” In particular, the ALJ found that “[Finucan] exploited patients to whom he owed a fiduciary duty of trust and ethical responsibility. [Finucan] pursued patients, mindful of the imbalance of power and status, with the benefit of personal knowledge about the patients and ⁵⁸⁶ their lives. [Finucan] undermined the trust patients must be able to place in their physicians. A physician is obligated to act only for a patient’s benefit, without any thought of self-gratification. “The complicated and tangled series of involvements, some occurring simultaneously, with several women of itself is not unethical or immoral in the practice of medicine. However, when the evidence shows that three of those women were patients at the time [Finucan] was intimately involved with them, and that he undermined the trust of the physician-patient relationship, then that physician has violated the ethical obligations of his profession.

I find [Finu-can] violated § 14-404(c)(3) and the standard of care by having sexual relations with Patients A, B, and D during the same period of time he was acting as their physician.” The ALJ concluded that Finucan’s conduct constituted unprofessional conduct in the practice of medicine and recommended that his license to practice medicine be revoked for at least three years. Finucan filed exceptions with the Board. The Board’s Findings and Conclusions After a hearing on 21 December 2000, the Board issued its final order adopting the ALJ’s findings of fact and analysis, and added the following: “Dr. Finucan has engaged in reprehensible unprofessional conduct in the practice of medicine by engaging in a pattern of unethical sexual relationships with his adult women patients over a period of several years. He repeatedly exploited patients to whom he owed a fiduciary duty of trust and ethical responsibility.

This exploitation was devastating to both those patients and their families. Dr. Finucan has undermined the trust which patients must be able to place in their physicians. “For the protection of public health and safety, and in order to protect the integrity of the medical profession, Dr. ⁵⁸⁷ Finucan must be barred from practicing medicine in the State of Maryland. “The Board agrees with the ALJ that Dr. Finucan’s aberrant behavior is deeply ingrained. The Board believes that a significant amount of time must pass before behavior this deeply ingrained can be successfully and permanently modified. The Board concludes that nothing short of revocation of Dr. Finucan’s medical license, and a three-year bar to the submission and consideration of any reinstatement application, will protect the integrity of the profession, as well as the health, safety, and welfare of the citizens of the State of Maryland.

The Board also intends this sanction to serve as a deterrent to such egregious conduct on the part of any other licensee.” B. Circuit Court Review On 31 January 2001, Finucan, pursuant to the Administrative Procedure Act, Maryland Code (1984, 1999 Repl.Vol., 2003 Supp.), § 10-222 of the State Government Article, filed in the Circuit Court for Cecil County a petition for judicial review of the Board’s order. The case was transferred to the Circuit Court for Talbot County. After hearing arguments from Finucan and the Board, the Circuit Court found that [Finucan] engaged in a series of inappropriate sexual relationships with at least three of his female patients while he was acting in his capacity as their treating physician. The Court further finds that these inappropriate sexual relationships, while acting in his capacity as the patient’s physician, falls within the meaning of the term “practicing medicine” under the Statute [in the] Health Occupations Article, Sections 14-401 et sec.

(Supp.1999). The Circuit Court concluded that substantial evidence existed in the record to support the action of the Board and affirmed its decision. C. In the Court of Special Appeals In the Court of Special Appeals, Finucan argued that a physician who engages in sexual relations with current pa ⁵⁸⁸ tients is not committing “immoral or unprofessional conduct in the practice of medicine.” He also maintained that there was a lack of substantial evidence to support the Board’s finding that he had engaged in “immoral or unprofessional conduct in the practice of medicine.” In addition, Finucan argued that the Board had violated the Accardi doctrine and he was otherwise deprived of due process. The Court of Special Appeals affirmed the Circuit Court’s judgment.

Finucan v. Maryland State Bd. of Physician Quality Assurance, 151 Md.App. 399 , 827 A.2d 176 (2003). The intermediate appellate court concluded “there was substantial evidence to support the Board’s first-level findings that Finucan had sexual relationships with Patients A, B,'and D while they were his patients.” The court reasoned that the facts illustrated that “a physician’s engaging in a sexual relationship with a patient — whether or not it occurs in the immediate act of diagnosis or treatment, or inside or outside of a medical setting, or while the physician is technically ‘on duty' — has a deleterious effect on the patient’s welfare.” Based on the imbalance of power between Finucan and his patients, and his knowledge of his patients’ medical histories, family situations, and current physical and emotional states, the intermediate appellate court held as correct the Board’s conclusion that Finucan’s unprofessional conduct with regard to Patients A, B, and D occurred in the practice of medicine. Finally, the court noted that Finucan’s allegations regarding the Accardi doctrine and due process, even as amorphous as presented there, had not been raised before the ALJ or Board and, thus, were deemed waived for judicial review purposes. In any event, based on its review of the voluminous appellate record, no due process violations or prejudicial procedural errors were revealed.

II

As a preliminary matter, we note that Finucan, in his petition for writ of certiorari filed with this Court, presented only the following question: ⁵⁸⁹ Does a physician commit immoral or unprofessional conduct in the practice of medicine [ ] by engaging in consensual sexual activity with a patient concurrent with the existence of a physician-patient relationship, in the absence of evidence that such activity occurred while the physician was actually engaged in the treatment and care of the patient? As noted earlier, we granted the petition to consider this question. In his brief in this Court, however, he also presented a series of additional questions, arguing that the administrative bias and various tactics violated the safeguards inherent in the Accardia [sic] Doctrine ... Due Process Violations: Appellant’s due process rights were violated as well as his constitutional rights.

His sixth amendment rights were violated by not allowing him to be confronted by Patient D. There was a violation of Appellant’s first amendment rights. Appellant was deprived of his guarantees of life, liberty, and the pursuit of happiness. For a number of reasons, we shall not consider formally Finucan’s Accardi argument or his additional due process questions. First, he failed to raise them before the ALJ or the Board. “We have held, consistently, that questions, including Constitutional issues, that could have been but were not presented to the administrative agency may not ordinarily be raised for the first time in an action for judicial review.” Bd. of Physician Quality Assurance v. Levitsky, 353 Md. 188, 208 , 725 A.2d 1027, 1036 (1999) (citations omitted).

Finucan waived, under Rule 8-131(a), his right to have his additional questions considered on judicial review. Furthermore, he waived any constitutional and procedural issues for review in this Court by failing to raise them properly in his petition for writ of certiorari. This Court ordinarily will not consider issues not raised in a petition for writ of certiorari and, therefore, we will not consider Finucan’s Accardi doctrine argument or due process arguments because they are not properly before us. See, e.g., Calvert Joint Venture # 140 v. Snider, 373 Md. 18 , 31 n. 8, 816 A.2d 854 , 861 n. 8 (2003) (finding that only two of petitioner’s questions dealt with issues comprised in the questions to which the Court granted ⁵⁹⁰ certiorari and, therefore, two other questions not raised in the writ of certiorari were not properly before the Court); Huger v. State, 285 Md. 347, 354 , 402 A.2d 880, 885 (1979) (holding that the question in petitioner’s brief was not properly before the Court, because that same question was not included within the writ of certiorari granted by the Court).

A. Standard of Review It is well settled that the State Judiciary’s role in reviewing an administrative agency’s adjudicatory decision is limited, United Parcel Service, Inc. 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 conclusions, 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 Md.Code (1984, 1995 Repl.Vol.), § 10-222(h) of the State Gov’t Article. “Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency.” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1999). We, therefore, ordinarily give considerable weight to the administrative agency’s interpretation and application of the statute that the agency administers. Lussier v. Md. Racing Comm’n, 343 Md. 681, 696-97 , 684 A.2d 804, 811-12 (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.”).

Furthermore, the expertise of the agency in its own field of endeavor is entitled to judicial respect. Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455 , 654 A.2d 449, 456 (1995); Christ v. Dep’t of Natural Res., 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 ⁵⁹¹ State Board of Education’s expertise would clearly be desirable before a court attempts to resolve the” legal issues). B. Finucan initially contends that the prohibition of “immoral or unprofessional conduct” contained in Maryland Code (1981, 2000 Repl.VoL, 2003 Supp.), § 14-404(a)(3) of the Health Occupations Article is, on its face, unconstitutionally vague. This is so, he claims, because the statute does not prohibit explicitly a physician from engaging in sexual relations with patients, nor fairly warn the physician that such conduct falls within its proscription.

Before considering this vagueness argument, we note, as the Court of Special Appeals similarly concluded, that there is no dispute in Maryland that physicians having sexual relationships with persons who are concurrently their patients is immoral or unprofessional conduct. Twenty years ago, in McDonnell v. Commission on Medical Discipline, 301 Md. 426 , 436 n. 5, 483 A.2d 76 , 80 n. 5 (1984), we opined that “the classic illustration of ‘immoral conduct of a physician in his practice as a physician’ is the commission of a sex act on a patient, while the patient is under the doctor’s care.” At the hearing before the ALJ, even Finucan acknowledged that it would have been inappropriate and unprofessional conduct in the practice of medicine to have had sexual relations with an individual while “she was still my patient.” The void for vagueness contention finds conceptual nourishment in the Fourteenth Amendment’s guarantee of procedural due process. Williams v. State, 329 Md. 1, 8 , 616 A.2d 1275, 1278 (1992). Generally, courts employ two criteria in their analysis of whether a statute is void for vagueness.

Bowers v. State, 283 Md. 115, 120-21 , 389 A.2d 341, 345 (1978). First, a court determines whether the statute adheres to the “fair notice principle.” Bowers, 283 Md. at 121 , 389 A.2d at 345 . In discussing the fair notice principle, we have held that “[d]ue process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know ⁵⁹² what is prohibited, so that they may govern their behavior accordingly.” Id. Thus, a statute will survive a challenge that it is unconstitutionally vague if it uses plain language that is understandable to a person of ordinary intelligence.

Connolly v. General Const. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926); Williams, 329 Md. at 8 , 616 A.2d at 1278 ; Unnamed Physician v. Comm’n on Medical Discipline, 285 Md. 1, 15 , 400 A.2d 396, 403 (1979). The next touchstone in the analysis counsels that a statute may be stricken for vagueness if it does not “provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact, and others whose obligation it is to enforce, apply and administer the penal laws.” Bowers, 283 Md. at 121 , 389 A.2d at 345 . The purpose behind this second factor is to avoid resolving matters in an arbitrary or discriminatory manner.

Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294, 2299 , 33 L.Ed.2d 222 (1972)). A statute, however, is not void for vagueness “merely because it allows for the exercise of some discretion.” Bowers, 283 Md. at 122 , 389 A.2d at 346 . A statute is unconstitutional only when it “is so broad as to be susceptible to irrational and selective patterns of enforcement.... ” Id.

In Unnamed Physician v. Commission on Medical Discipline, we addressed whether former Maryland Code (1957, 1978 Cum.Supp.), Art. 43 § 130, which at that time governed disciplinary actions against physicians, was void for vagueness. 4 Former section 130(h) identified eighteen separate grounds for which a physician could be disciplined for “unprofessional conduct,” one of which was “professional incompetency.” We held that the statute was not void for vagueness because it (1) sufficiently informed physicians that if they engaged in any of the activities forbidden by § 130(h) they would be subject to discipline and the possible loss of their license, and (2) because it was written in plain language