Finucan v. Maryland State Board of Physician Quality Assurance

BARBERA, J. This case presents the question whether the Board of Physician Quality Assurance (“the Board”) could reasonably conclude that a physician’s having consensual sexual relations with adult patients, at times and locations other than those involving the immediate act of diagnosis or treatment, is “immoral or unprofessional conduct in the practice of medicine” within the meaning of Maryland Code (1981, 2000 Repl. VoL), § 14-404(a)(3) of the Health Occupations Article. We hold that the Board could so conclude. ⁴⁰⁴ FACTS AND PROCEEDINGS Appellant, Thomas E. Finucan, Jr., M.D., is a physician who from 1985 until 2001 worked as a family practitioner in Cecil County, Maryland. In addition to maintaining a private practice at his medical office in North East, Dr. Finucan worked evenings and weekends at Perry Point VA Medical Center, and was on staff at Union Hospital in Elkton.

On October 21,1998, the Board received a written complaint from a patient, identified hereinafter as Patient A, that Dr. Finucan engaged in a sexual relationship with her while acting as her physician. The Board began investigating Patient A’s complaint. The investigation disclosed that, from 1993 through 1998, Dr. Finucan engaged in a series of sexual and personal relationships with several patients while maintaining a physician-patient relationship with them. Nearly one year later, the Board charged Dr. Finucan with immoral or unprofessional conduct in the practice of medicine.

A seven-day evidentiary hearing was conducted by an Administrative Law Judge (“ALJ”). The ALJ made extensive fact findings, and concluded that Dr. Finucan had engaged in sexual relationships with three of his patients, Patients A, B, and D, while serving as their primary care physician. 1 Patient A was fifty-two years old at the time of the hearing. She first sought medical treatment from Dr. Finucan in March 1993. In September 1995, Dr. Finucan began calling Patient A and eventually visiting her at her home in the evenings, occasionally after midnight.

At the time, Patient A was in the midst of a separation from her husband. By the end of 1995, Dr. Finucan and Patient A had begun a consensual sexual relationship. They engaged in sexual intercourse and other sexual activity at her house and at his house on Old Field Point Road. 2 In addition to vaginal intercourse, ⁴⁰⁵ Dr. Finuean wanted to have anal intercourse. He also frequently requested that Patient A perform oral sex on him, and that he be allowed to ejaculate in her mouth, so that “part of [him] will be with [her] all day.” Patient A initially opposed these requests.

Patient A testified that Dr. Finuean ignored her feelings and eventually “coerce[d]” her into doing these things she did not want to do. Dr. Finuean also asked Patient A to seek reversal of a tubal ligation so that she could bear his child. Patient A did not acquiesce to this request. Dr. Finuean insisted that he remain Patient A’s physician while they were involved sexually.

During this time, Dr. Finuean treated Patient A for several medical conditions, including a seizure disorder, high blood pressure, emotional problems, a shoulder injury, bee stings, and a sinus infection. On two occasions, Dr. Finuean delivered prescription medicine to Patient A’s home after diagnosing her medical condition. Except for a several-month break in late 1996 and early 1997, Dr. Finuean and Patient A continued their dual professional and sexual relationships until September 1997. In that month, he saw her as a patient for the last time.

Their sexual relationship ended in the spring of 1998. Patient A suffered psychological difficulties as a result of her sexual relationship with Dr. Finuean and began seeing a therapist. In October 1998, Patient A filed the complaint that prompted these proceedings. Patient B was thirty-five years old at the time of the hearing.

She first obtained medical care from Dr. Finuean in March 1995. About a year later, Patient B sought medical advice from him regarding a hip injury. During that office visit, Dr. Finuean discussed with Patient B his own personal stress and expressed interest in seeing her outside of the office. Approximately one week later, Dr. Finuean met Patient B in a park and confided in her about a relationship with ⁴⁰⁶ another woman (Patient D).

Thereafter, Dr. Finucan occasionally telephoned Patient B while he was on duty at Perry Point VA Medical Center. By the beginning of the summer of 1996, Dr. Finucan and Patient B had commenced a sexual relationship. The relationship continued for approximately six months. They engaged in sexual intercourse and other sexual activity at an apartment he maintained above his medical office and, on at least two occasions, at a local motel. 3 As he did with Patient A, Dr. Finucan requested that Patient B engage in oral sex and that she swallow his ejaculate because, Dr. Finucan told Patient B, it “made us as one and it was part of him that would be with [her] for awhile.” Patient B testified that she initially opposed the request, but Dr. Finucan “used his control over me and his position to have me do things that I really wouldn’t even do with my husband.” At his insistence, Dr. Finucan continued to see Patient B as a patient.

During medical office visits, Dr. Finucan would “touch [her] breasts and things like that,” and “[they] would kiss.” During that same period, Patient B convinced her husband that they should transfer their teenaged daughter’s care to Dr. Finucan. As he did with Patient A, Dr. Finucan asked Patient B to seek reversal of a tubal ligation so that she could bear his child. Patient B spoke to another doctor regarding the procedure, but did not commence the process. Dr. Finucan last saw Patient B as a patient in March 1997, treating her at that time for anxiety.

Dr. Finucan had ended their sexual relationship one month earlier, over Patient B’s objection. Patient B began psychotherapy to deal with issues of distrust, shame, self-blame, and anger. Patient D was forty years old at the time of the hearing. In late 1992, Patient D’s husband visited Dr. Finucan for a ⁴⁰⁷ physical examination as part of the law enforcement officer application process.

Dr. Finucan learned that Patient D’s husband would be training for several months at the police academy on the Eastern Shore, returning home only on weekends. In early 1993, Dr. Finucan began a sexual relationship with Patient D. At about the same time, Dr. Finucan became the primary care physician for Patient D, her husband, and her daughters. Later that year, Dr. Finucan hired Patient D to be his office receptionist. Patient D did not testify at the hearing, but her former husband did.

Sometime in 1993, he discovered, in their home, men’s clothing and condoms that did not belong to him. Patient D’s husband also testified that he found greeting cards from Dr. Finucan to Patient D, and a photograph of Dr. Finucan “snuggling” with Patient D’s children. On one occasion, Patient D’s husband found Dr. Finucan asleep in Patient D’s bed. Patient D’s marriage dissolved as a result of her sexual relationship with Dr. Finucan.

In February 1994, Patient D and Dr. Finucan began living together. Dr. Finucan asked Patient D to have his baby and to undergo fertility testing, which she agreed to do. Sometime thereafter, Patient D became pregnant with Dr. Finucan’s child, but suffered a miscarriage. The two became engaged to be married.

Throughout this time, Dr. Finucan continued to provide medical care to Patient D and her daughters. In June 1995, Patient D took an overdose of prescription medication in an apparent suicide attempt and was admitted to Union Hospital. Hospital records show that Patient D listed Dr. Finucan as her family physician, that he served as her admitting and attending physician, and that he had significant involvement in her care while she was in the hospital. The records also show that Patient D was discharged from the hospital to Dr. Finucan’s care.

Approximately one year later, Patient D and Dr. Finucan ended their sexual relationship. ⁴⁰⁸ 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 a witness for the Board. Dr. Muncie stated that boundaries are important in the physician-patient relationship, in part because of the powerful role that the physician plays in that relationship. Dr. Muncie explained that a patient may naturally develop warm feelings for the physician and consequently be unable to perceive clearly the role to which the physician must adhere. The physician, therefore, must take care not to exploit the advantage physicians naturally gain over their patients.

Even in those cases in which a sexual relationship develops after termination of the physician-patient relationship, ethical concerns may arise, depending on the physician’s knowledge about the patient’s past, family situation, and emotional state. Dr. Muncie opined “that there is never ... any situation, where having a sexual relationship with a [current] patient is ever, ever appropriate.” Counsel for the Board entered into evidence the Board’s spring 1993 newsletter and a Journal of the American Medical Association (“JAMA”) article entitled Sexual Misconduct in the Practice of Medicine, both of which state that sexual contact that occurs simultaneously with the physician-patient relationship constitutes sexual misconduct on the physician’s part. The JAMA article further states that a patient seeking medical care must be able to trust the physician’s dedication solely to the patient’s welfare. Moreover, a physician’s romantic involvement with a patient could result in the physician’s need for gratification, which interferes with the physician’s ability to address the patient’s needs.

Dr. Finucan testified at the hearing and admitted that he had a sexual relationship with Patients A and D, but only after they were no longer his patients. At the same time, Dr. Finucan acknowledged that he had occasionally provided emergency treatment to Patients A and D during their respective sexual relationships. Dr. Finucan denied ever having had a sexual relationship with Patient B. ⁴⁰⁹ In September 2000, the ALJ issued his “Revised Proposed Decision.” 4 The ALJ found that the evidence against Dr. Finucan demonstrated “overwhelming[ly]” that he had pursued multiple sexual relationships with Patients A, B, and D over a period of several years. The ALJ found in particular that: [Dr. Finucan] exploited patients to whom he owed a fiduciary duty of trust and ethical responsibility. [Dr. Finu-can] pursued patients, mindful of the imbalance of power and status, with the benefit of personal knowledge about the patients and their lives. [Dr. 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. From this and other findings, the ALJ concluded: 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 [Dr. 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. The ALJ further concluded that Dr. Finucan’s conduct constituted unprofessional conduct in the practice of medicine.

The ALJ recommended that Dr. Finucan’s license to practice medicine be revoked and that his license not be considered for reinstatement for at least three years. ⁴¹⁰ Dr. Finucan filed exceptions with the Board. After a hearing on December 21, 2000, the Board issued its final order adopting the ALJ’s findings of fact and analysis, and adding 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. The Board agreed with the ALJ’s proposed sanction, adding that if Dr. Finucan should apply for reinstatement of his license, he must make “a clear and convincing showing to the Board not only of medical competence, but also of rehabilitation and a change in character, demonstrated by his conduct over a long period of time.” Dr. Finucan filed a petition for judicial review of the Board’s order in the Circuit Court for Cecil County. 5 The case was transferred to the Circuit Court for Talbot County. After hearing arguments from Dr. Finucan and counsel for the Board, the court affirmed the Board’s decision. Dr. Finucan has appealed and presents eleven questions, which we have distilled into three: I. Does a physician who engages in sexual relations with a patient concurrent with the physician-patient relationship commit immoral or unprofessional conduct in the practice of medicine?

II

Was there substantial evidence to support the Board’s finding that Dr. Finucan had engaged in immoral or unprofessional conduct in the practice of medicine? ⁴¹¹ III. Did the administrative proceedings violate the Accardi doctrine, and was appellant otherwise deprived of due process? STANDARD OF REVIEW Appellate review of an administrative agency’s decision is narrow. We are “ ‘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.’ ” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376 (1999) (quoting United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226 (1994)).

We review the agency’s decision, not that of the circuit court. Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 450 , 800 A.2d 768 (2002). We do not substitute our judgment for the administrative agency’s expertise. Banks, 354 Md. at 68 , 729 A.2d 376 . “Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency.” Id. at 69 , 729 A.2d 376 . “[T]he expertise of the agency in its own field should be respected.” Id.

Therefore, “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Id. DISCUSSION I. In Maryland, the Board may reprimand, place on probation, or suspend or revoke a physician’s license if that physician “[i]s guilty of immoral or unprofessional conduct in the practice of medicine.” Md.Code (1981, 2000 RepLVoL), § 14-404(a)(3) of the Health Occupations Article. 6 Dr. Finucan ⁴¹² does not contest that a physician’s engaging in a sexual relationship with a current patient is immoral or unprofessional. Indeed, he admitted as much below, and does so again in his brief on appeal. He argues, instead, that the Board wrongly revoked his license to practice medicine because, when the sexual conduct with his patients occurred, he was not “actually or constructively engaged in the act of the practice of medicine.” For the reasons that follow, we disagree.

A. As a preliminary matter, there was substantial evidence to support the Board’s first-level findings that Dr. Finucan had sexual relationships with Patients A, B, and D while they were his patients. In addition, it was reasonable for the Board to conclude that Dr. Finucan’s behavior was immoral and unprofessional conduct. The Board’s spring 1993 newsletter and the JAMA article condemn sexual contact between a physician and a patient concurrent with the physician-patient relationship, and Dr. Muncie provided the expert opinion that a physician having a sexual relationship with a current patient is never appropriate. The prohibition against physician-patient sexual relations is part of at least one version of the Hippocratic Oath that is currently recited.

See American Medical Association, Council on Ethical and Judicial Affairs, Council Rep., Sexual Misconduct in the Practice of Medicine (1991) 266 JAMA 2741 (quoting the Oath’s prohibition of “all mischief and in particular of sexual relations with both female and male persons”). Moreover, the courts recognize that, “[i]n the medical profession, it is understood that having sex with patients constitutes immoral and unprofessional conduct.” Briggs v. Cochran, 17 F.Supp.2d 453 , 461 n. 18 (D.Md.1998), aff'd without opinion, 202 F.3d 257 (4th Cir.1999); see Bash v. Board of Med. Practice, 579 A.2d 1145, 1153 (Del.Super.Ct.1989) (noting that “[i]t cannot be seriously doubted that sexual exploitation of a patient by a physician constitutes dishonorable, unethical ⁴¹³ or immoral conduct”); Selkin v. State Bd. for Prof'l Med. Conduct, 279 A.D.2d 720 , 719 N.Y.S.2d 195, 196 (2001) (reaffirming that a physician is morally unfit to practice medicine when he engages in consensual sexual relationships with patients during the period of time he is treating them).

Indeed, in McDonnell v. Comm’n on Med. Discipline, 301 Md. 426 , 436 n. 5, 483 A.2d 76 (1984), a case we return to later in our discussion, the Court of Appeals characterized the commission of a sex act on a patient as the “classic illustration of ‘[ijmmoral conduct of a physician.’ ” Finally, Dr. Finucan himself acknowledged at the hearing before the ALJ 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 question here, however, is not whether Dr. Finucan’s having sexual relations with his patients is immoral or unprofessional conduct, but whether engaging in those acts at times and places other than when he was directly diagnosing or treating them comes within the meaning of “in the practice of medicine.” We believe that it does. B. What “in the practice of medicine” means in the context of § 14-404(a)(3) was first considered by the Court of Appeals in McDonnell . The Court was asked to determine whether a physician who had attempted to intimidate witnesses scheduled to testify against him in a medical malpractice case could be disciplined for “[i]mmoral conduct of a physician in his practice as a physician,” under Md.Code Ann. (1957, 1980 Repl.Vol.), Art. 43, § 130(h)(8), the predecessor to § 14-403(a)(3).

McDonnell, 301 Md. at 428 , 483 A.2d 76 . The Court concluded that Dr. McDonnell’s conduct, although “improper and not to be condoned,” did not occur in his practice as a physician. Id. at 434 , 483 A.2d 76 . The Court held that “practice as a physician” referred to “matters pertaining essentially to the diagnosis, care or treatment of patients.” Id. at 436 , 483 A.2d 76 .

Consequently, immoral conduct that ⁴¹⁴ simply occurs during the term of a physician’s licensure or having only “a general or associative relationship to the physician in his capacity as a member of the medical profession” does not come within the statute’s language. Id. At the same time, however, the Court noted: “Dr. McDonnell suggests, and we agree, that the classic illustration of ‘[i]mmoral 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.” Id. at 436 n. 5, 483 A.2d 76 . Approximately fifteen years later, in Board of Physician Quality Assurance v. Banks, the Court of Appeals again examined the phrase “in the practice of medicine” as it is now employed in § 14-404(a)(3).

The Court rejected the argument that McDonnell should be read as precluding a physician from being sanctioned under the statute for committing acts of sexual harassment against colleagues in the workplace. Banks, 354 Md. at 72-73 , 729 A.2d 376 . The Court distinguished Dr. McDonnell’s conduct, which occurred during judicial proceedings against him on charges of medical malpractice, from that of Dr. Banks, who engaged in the harassment of hospital personnel while he was on duty as a physician and in the working areas of the hospital. Id.

Dr. Banks’s conduct, the Court said, “has more than merely a ‘general or associative relationship’ to [his] capacity as a member of the medical profession.” Id. The Court specifically rejected, as illogical, Dr. Banks’s argument that “a physician may only be sanctioned under § 14-404(a)(3) if he or she is in the immediate process of diagnosing, evaluating, examining or treating a patient and engaged in a non-clerical task.” Id. at 73, 729 A.2d 376 . Such an approach, the Court explained, would “render the statute inadequate to deal with many situations which may arise.” The Court said: For example, Dr. Banks concedes that a physician could be disciplined for exposing himself while examining an x-ray to determine whether a patient broke a bone because this is actual diagnosis and thus falls within the practice of medicine. (Banks’s reply brief at 15-16).

On the other hand, if ⁴¹⁵ the physician were to expose himself to a nurse in the hallway immediately before or after examining the x-ray, this would not be in the practice of medicine, and hence not within the purview of § 14-404(a)(3). This approach so narrowly construes § 14-404(a)(3) that it would lead to unreasonable results and render the statute inadequate to deal