Geier v. Maryland State Board of Physicians

GRAEFF, J. Mark R. Geier (“Dr. Geier”), appellant, seeks review of the decision of the Maryland State Board of Physicians (the “Board”), appellee, to revoke his license to practice medicine. 1 The Board revoked his license after it determined that he ⁴¹¹ violated numerous provisions of the Medical Practice Act (the “Act”), Md.Code (2009 Repl.Vol.) §§ 14-401 et seq., of the Health Occupations Article (“HO”), including [¶] §§ 14-404(a)(3)(ii) (unprofessional conduct in the practice of medicine), 14—404(a)(ll) (willfully making or filing a false report or record in the practice of medicine), 14—404(a)(22) (failing to meet standards, as determined by peer review, for the delivery of quality medical care), 14-404(a)(40) (failing to keep adequate medical records), and 14-404(a)(12) (willfully failing to file or record any medical report as required under law, willfully impeding or obstructing the filing or recording of the report, or inducing another to fail to file or record the report). Dr. Geier petitioned for judicial review in three jurisdictions, the Circuit Court for Baltimore City, the Circuit Court for Baltimore County, and the Circuit Court for Montgomery County. After Dr. Geier voluntarily dismissed his petitions in Baltimore City and Baltimore County, the Board moved to dismiss the remaining petition on res judicata grounds, pursuant to Md. Rule 2-506(c), which provides “that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim.” 2 The Circuit Court for Montgomery County denied the Board’s motion to dismiss, and it affirmed the Board’s decision on the merits. On appeal, Dr. Geier presents 12 questions for this Court’s review, which we have consolidated and rephrased, as follows: 1.

Was there substantial evidence in the record to support the Board’s findings that Dr. Geier: (1) engaged in ⁴¹² unprofessional conduct in the practice of medicine, pursuant to [¶] § 14—404(a)(3)(H); (2) willfully made a false record in the practice of medicine, pursuant to [¶] § 14-404(a)(ll); and (3) failed to meet appropriate standards for the delivery of quality medical care, pursuant to [¶] § 14-404(a)(22)? 2. Did the ALJ abuse its discretion in admitting the testimony of the State’s expert witness, Dr. Linda Gross-man? 3. Did the ALJ properly exclude from evidence two exhibits offered by Dr. Geier? 4. Did the Board properly reject Dr. Geier’s contention that the State was required to admit into evidence two peer review reports? 5.

Did the circuit court properly deny Dr. Geier’s request to supplement the administrative record? 6. Did the circuit court abuse its discretion in denying Dr. Geier’s motion for a stay? The Board, although it did not file a cross-appeal, lists in its brief the following additional question for review: Was Dr. Geier’s petition for judicial review in the Circuit Court for Montgomery County barred on res judicata grounds under [Md.] Rule 2-506(c) after Dr. Geier voluntarily dismissed two other petitions for judicial review that he had filed to contest the Board’s decision? For the reasons that follow, we conclude that the Board’s question presented is not properly before this Court.

With respect to the issues raised by Dr. Geier, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND I. Relevant Proceedings On October 3, 2006, the Board notified Dr. Geier that it had received a complaint against him regarding his use of the drug ⁴¹³ Lupron to treat autistic children. 3 The complainant, who was neither a patient of Dr. Geier’s, nor a parent of a patient, alleged that, in treating autistic children, Dr. Geier was: (1) practicing outside of the scope of his expertise and the prevailing standard of care for autism; (2) experimenting on children without a rational scientific theory or the supervision of a qualified review board; and (3) failing to provide appropriate informed consent regarding the potential side effects of Lu-pron and similar drugs. On April 27, 2011, the Board issued an order for summary suspension of Dr. Geier’s license to practice medicine, concluding that the “public health, safety or welfare imperatively required emergency action.” On May 16, 2011, the Board issued charges against Dr. Geier pursuant to the Act. Dr. Geier requested hearings on both the order for summary suspension and the charges.

On June 17, 20, 21, 23, 27, and 30, 2011, an Administrative Law Judge (“ALJ”) held a hearing on the Board’s order for summary suspension. On September 26, 2011, the ALJ issued a proposed decision upholding summary suspension of Dr. Geier’s license. In the interim, on September 15, 2011, the Board issued amended charges under the Act against Dr. Geier. The amended charges alleged violations of [¶] §§ 14-404(a)(3)(ii) (unprofessional conduct in the practice of medicine); (a)(ll) (willfully making or filing a false report or record in the practice of medicine); (a)(12) (willfully failing to file or record any medical record as required under law); (a)(18) (practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine); (a)(19) (gross overu-tilization of health care services); (a)(22) (failure to meet ⁴¹⁴ appropriate standards for the delivery of quality medical care); and (a)(40) (failure to keep adequate medical records).

On December 6, 7, 8, 9, and 15, 2011, the ALJ held a hearing on the amended charges. At the hearing, by agreement of the parties, the entire record of the prior summary suspension hearing, including all testimony presented and all exhibits admitted, were incorporated into evidence. On March 13, 2012, following the hearing, the ALJ issued a 126-page proposed decision, recommending that the amended charges be upheld with regard to [¶] §§ 14—404(a)(3)(ii), 14-404(a)(ll), 14-404(a)(22), and 14^04(a)(40) and dismissed with regard to [¶] §§ 14-404(a)(12), 14-404(a)(18), and 14^t04(a)(19). The ALJ recommended that Dr. Geier’s license be revoked.

In April 2012, Dr. Geier filed exceptions to the ALJ’s proposed decision. On May 23, 2012, the Board held an exceptions hearing. On August 22, 2012, the Board issued a Final Decision and Order, ordering that Dr. Geier’s license be revoked. The Board found, among other things, that Dr. Geier treated patients with Lupron, a medication that was not approved by the U.S. Food and Drug Administration (“FDA”) for use on children in the absence of precocious puberty, and that Dr. Geier did not perform an adequate examination to determine if the patients had precocious puberty.

Although it noted Dr. Geier’s opinion that Lupron therapy was appropriate for purposes not approved by the FDA or the American Academy of Pediatrics, and his testimony that he treated patients who met his profile with Lupron, it found that, with the exception of one patient who was the subject of the hearing, “none of these patients met even Dr. Geier’s profile for Lupron therapy.” The Board also found that Dr. Geier prescribed chelation therapy to patients who failed to display the need for chelation. He began this therapy without documenting a reason for the treatment and without adequate documented informed consent. He violated the standard of quality care by so doing. He also violated the ⁴¹⁵ standard of quality care by prescribing for patients ... a drug not approved for any use in the United States.

(Footnotes omitted). The Board found that Dr. Geier “egregiously violated basic medical standards in his treatment of these patients by not evaluating them properly, lying about which drug he was prescribing, and failing to evaluate in any realistic medical way whether his intensive and very expensive treatment was effective.” The Board concluded that Dr. Geier violated multiple provisions of the Act, stating as follows: Dr. Geier committed unprofessional conduct in the practice of medicine within the meaning of [HO] § 14-404(a)(3)(ii) when he had parents sign a consent form that falsely implied that he was conducting an experimental protocol approved by an Institutional Review Board [ (“IRB”) ] when in fact that review board was, as the ALJ put it, “a fagade covering the intentions of a group that did not believe that they were bound by federal or state law and had no intention of being so bound.”[ 4 ] He committed further unprofessional conduct when he had a parent sign a consent form for the use of one drug for chelation therapy when in fact another drug, a drug not approved for use in the United States, was intended to be used and was in fact used. His violations of the standard of care, especially his treating of some patients without examining them and his reaching diagnoses in the absence of required diagnostic tests, were so egregious as to amount to unprofessional conduct in themselves. ⁴¹⁶ By willfully reporting false credentials when he applied for the renewal of his medical license, Dr. Geier made a willfully false statement in the practice of medicine within the meaning of [HO] § 14—404(a)(ll). By failing to properly evaluate patients before treating them with an intensive regimen of drug therapy, by providing the parents with inadequate or falsified consent forms, by failing to properly evaluate whether his treatment was working, by ordering continued therapy to a patient for whom there was no possibility of monitoring the effects, and by failing to keep adequate records, Dr. Geier failed to meet the standard of quality care required by [HO] § 14-404(a)(22).

By failing to document adequately the reasons these treatments were initiated, halted or modified, by faffing to maintain clear evidence of informed consent, or even in some cases faffing to document even the manner in which the patients were contacted, Dr. Geier failed to keep adequate medical records within the meaning of [HO] § 14-404(a)(12). This charge was based on the fact that the Board’s analyst, having subpoenaed Dr. Geier’s medical records for a certain patient and having received records that appeared on their face to be incomplete, wrote to Dr. Geier, emphasizing that all medical records for this patient should be produced. The Board’s letter also required Dr. Geier to respond in writing if no additional records were submitted. Dr. Geier did not produce any records; neither did he respond in writing as required.

According to the testimony provided at the hearing, there were no additional records regarding this patient. Finally, the Board concluded that Dr. Geier violated [¶] § 14-404(a)(12). Although the ALJ had concluded that there was no violation of the statute because no records existed that Dr. Geier failed to file with the Board, the Board disagreed. It explained: The statute elsewhere requires a physician to “cooperate” with the Board’s investigation. [HO] § 14—404(a)(33).

The most obvious way in which most investigated physicians are ⁴¹⁷ asked to cooperate is by filing reports in response to questions posed by an analyst in the course of an investigation. In light of the facts that (1) the statute requires cooperation by the investigated physician; (2) the medical records appeared on their face to be incomplete; and (3) that the analyst required in writing that Dr. Geier respond in writing if there were no additional medical records, Dr. Geier’s failure to file a report to the Board to that effect when required by the analyst was a violation of [HO] § 14-404(a)(12). The Board concluded, however, that this was a “peripheral offense” that was “unrelated to Dr. Geier’s actual care of his patients,” and it “pale[d] in comparison to the egregious violations of the standard of care and the egregious unprofessional conduct displayed by Dr. Geier in this case.” Accordingly, the Board determined that it would not impose a sanction based upon'the violation of [¶] § 14-^104(a)(12). The Board did impose a sanction, however, for the other violations of the Act.

In discussing the appropriate sanction, the Board stated: Dr. Geier has displayed in this case an almost total disregard of basic medical and ethical standards by treating patients without properly examining or diagnosing them, continuing treatment without properly evaluating its effectiveness, and providing “informed consent” forms that were misleading and in at least one case blatantly false. He provided treatments supposedly according to an investiga-tional protocol, but the investigation was approved only by a sham [IBB], and he applied protocols to patients who did not fit his own profile. He provided treatment by a drug not approved for use in this country while informing parents that a different drug would be used. His actions toward his patients were not those of an honest and competent physician, nor do they appear to be those of an objective and ethical researcher.

Dr. Geier made little use of those methodologies that distinguish the practice of medicine as a profession. At the same time, he profited greatly from the minimal efforts he made for these patients. In plain words, ⁴¹⁸ Dr. Geier exploited these patients under the guise of providing competent medical treatment. Such a use of a medical license is anathema to the Board.

The Board has no hesitation in revoking his medical license. On September 17, 2012, Dr. Geier petitioned for judicial review. On April 9, 2014, after oral argument, the circuit court affirmed the Board’s final decision. The court initially noted that Dr. Geier did “not address nor refute many of the Board’s findings of fact and conclusions of law regarding the violations of the” Act.

Those unchallenged determinations included: [T]he Board’s findings that he provided false informed consent to the parent of his patient for use of a drug that was not approved by the FDA for use in the United States, that he failed to properly evaluate his patients prior to treatment and failed to adequately monitor his patients following treatment, and that he failed to adequately document the treatment of his patients. With respect to the findings that Dr. Geier did challenge, the court concluded that there was substantial evidence to support the Board’s decisions that: (1) “Petitioner willfully falsified his license renewal applications”; (2) “Petitioner was performing human research on [one patient] and that an IRB should have been established”; (3) the IRB did not have any members unaffiliated with Dr. Geier and his Institute of Chronic Illness (“ICI”); (4) Dr. Geier violated [¶] § 14-404(a)(22) and (40); and (5) the Board’s expert “was a qualified expert and the Board presented a competent peer reviewer to testify.” It further concluded that “the sanction of revoking Petitioner’s medical license recommended by the ALJ and imposed by the Board is not arbitrary and capricious.” On April 21, 2014, Dr. Geier moved to alter or amend the court’s ruling. On July 9, 2014, the court issued an Amended Memorandum Opinion and Order, reaffirming the Board’s decision. ⁴¹⁹ II. Dr. Geier’s Credentials and Practice Dr. Geier attended medical school at George Washington University.

In 1979, after completing medical school, Dr. Geier obtained his medical license from the State of Maryland. Through his medical practice, The Genetic Centers of America, Dr. Geier treated pediatric patients with Autism Spectrum Disorders (“ASD”). Dr. Geier does not have any credentials in pediatrics or autism. Instead, his residency was a one-year program in obstetrics and gynecology, which he completed in 1979.

Medical doctors in Maryland need to renew their license to practice medicine every two years. The License Renewal Form asks the doctor to list “up to two (2) specialty areas only if certified by a recognized board of the American Board of Medical Specialties (ABMS).” On his 2006, 2008, and 2010 license renewal applications filed with the Board, Dr. Geier stated that he was certified by ABMS-recognized specialty boards as follows: in “Genetics/Medical” in 2006; in “Genetics Clinical [General]” in 2008; and in “Genetics, Medical [Ph.D.]” and “Epidemiology” in 2010. Dr. Geier was not Board-certified in any of these specialties. 5 Dr. Geier testified that he selected those categories from the list of ABMS-recognized board certifications because there was no option to state that he was certified by the American Board of Medical Geneticists (“ABMG”) as a “genetic counselor.” The ABMS’s list of recognized physician specialties does not list “genetic counsel- or” as a medical specialty. Since 2004, Dr. Geier has treated 1,500 to 2,000 children with ASD.

At issue in this case was his treatment of seven patients, Patients A, B, E, F, G, H, and I. The ALJ summarized Dr. Geier’s practice as follows: ⁴²⁰ All the Patients were presented to [Dr. Geier] already diagnosed by another physician with autism or a condition on the autism spectrum. All presented with severe symptoms of autism, and all but Patient G presented with adverse behaviors such as aggression and sexual activities, and accelerated signs of puberty at a young age. [Dr. Geier] diagnosed all the children with Precocious Puberty, administered Lupron therapy to all, and chelation therapy to most.... [Dr. Geier] contends that mercury is the ultimate cause of the Patients’ aggressive symptoms. Under his theory, the Patients are handicapped by the presence of a [single nucleotide polymorphism (“SNP”) ] of their [methylenetet-rahydrofolate reductase (“MTHFR”) ] gene that causes them to be more sensitive and less able to excrete mercury than the general population. This build-up of mercury in their systems interferes with the production of glutathione; glutathione is necessary to prevent a build-up of testosterone and testosterone-related androgens and, conversely, the buildup of testosterone also inhibits the production of gluta-thione.

The build-up of testosterone makes the children more aggressive and increases hypersexual behaviors. Dr. Geier employed two types of therapy: he would medicate his patients with Lupron, a hormone designed to suppress testosterone and estrogen. In many cases, in addition to administering Lupron, he would use chelation therapy, which is intended to remove high levels of heavy metals, such as lead and mercury, from the body. Although Lupron is approved by the FDA for use on adults for conditions including prostate cancer, the only approved, or “on-label,” use for Lupron in children is for the treatment of precocious puberty.

Testimony indicated that, due to the significant potential risks in the use of Lupron, face-to-face monitoring is required at least every three months. Dr. Geier used the drugs DMSA (dimercaptosuccinic acid) and DMPS (2,3-dimercapto-l-propane-sulfonic acid) in his chelation therapy. Although DMSA has been approved by the ⁴²¹ FDA for removing severe levels of heavy metals from the body, DMPS is not approved by the FDA for any purpose. The ALJ noted that “[pjhysicians who prescribe DMPS must inform their patients or their patients’ representatives, of its experimental status in the United States, and have a full disclosure/informed consent document” in the patient’s medical chart.

Chelation therapy also has the potential for significant adverse complications, and therefore, chelation requires a physician to evaluate the patient face-to-face at least once every month. There is not a consensus in the medical community that chelation therapy should be used to treat ASD. Dr. Geier diagnosed each patient with precocious, or premature, puberty. The criteria for diagnosing precocious puberty includes a complete history and physical examination, which includes: assessing genital development; determining bone age, which is based upon an X-ray of the wrist; completing hormone studies; and “Tanner Staging,” a medical grading of where a child falls in the steps of puberty.

In addition, a diagnosis of precocious puberty generally is reserved for girls under the age of eight and boys under the age of nine. Despite representing to insurance companies that Lupron was being used to treat precocious puberty, Dr. Geier testified that he would offer the patient’s parent a two to three month trial of Lupron if laboratory tests showed certain results. 6 Specifically, he prescribed Lupron if the test results showed that the patient had one or more single genetic changes on a particular gene, low glutathione (a “cofactor” for an enzyme that assists the body to excrete mercury), high testosterone, low levels of the hormone DHEA-S, high levels of the hormone DHEA, and adverse behavioral signs of puberty, such as aggression and hypersexual behavior. ⁴²² III. Dr. Geier’s Patients a. Patient A Patient A, a male, was diagnosed with autism when he was four years old.

He was referred to Dr. Geier when he was nine years and eight months old. His initial lab testing indicated that he had high testosterone levels and high DHEA, but normal DHEA-S. Dr. Geier diagnosed him with precocious puberty and prescribed Lupron based on his diagnosis. Dr. Geier also prescribed DMPS for chelation therapy, although his laboratory results did not indicate that there was heavy metal poisoning. There was also no written informed consent form and no documentation that the risks of the treatment were discussed. b.

Patient B Patient B, a male with autism, was six years old when he was initially assessed by Dr. Geier. Dr. Geier did not perform a physical examination of Patient B at the initial assessment, or at any time during Patient B’s treatment. Dr. Geier’s precocious puberty diagnosis did not include any information about bone age or Tanner Stage assessments. Dr. Geier prescribed both Lupron and DMPS for the patient.

The patient’s parents were sent a “Geier Clinical Study Protocol,” which described the Lupron treatment but did not explain the risks and benefits. c. Patient E Patient E, a female with ASD, was diagnosed by Dr. Geier with precocious puberty when she was nine years and eight months old. Dr. Geier did conduct a physical examination, but the expert for the Board opined that the examination was inadequate to support a diagnosis of precocious puberty. There was no written informed consent and no documentation that the risks and benefits of the treatment or possible adverse side effects of Lupron were discussed with her parents. ⁴²³ d.

Patient F Patient F, a female with autism, underwent laboratory testing under Dr. Geier’s direction when she was seven years and eleven months old. The expert for the Board testified that the physical examination was inadequate, consisting only of measuring the patient’s height and weight and noting some, but not all, of the required features. Dr. Geier did not perform a bone age determination. Patient F nevertheless was prescribed Lupron.

No written informed consent was obtained, and there is no documentation that the risks or potential side effects or goals of treatment were discussed. After prescribing the drugs, Dr. Geier did not conduct any further physical examination, and he did not make any assessments to determine whether the patient had suffered side effects from the treatment. e. Patient G Patient G, a male with pervasive developmental disorder, was eight years old when Dr. Geier made his initial assessment. Dr. Geier did not conduct a physical examination; in fact, he never met the patient in person.

Dr. Geier did not conduct a bone age evaluation or a Tanner Stage evaluation. He prescribed the patient Lupron, as well as DMPS for chelation therapy, although the Board’s expert opined that there were no findings indicating elevated mercury levels. There was no written informed consent, and no documentation that any risk factors were discussed. Dr. Geier did not monitor the patient for possible adverse side effects. f.

Patient H Patient H, a female with ASD, was over eight years old when Dr. Geier became involved with her treatment. Dr. Geier diagnosed her with precocious puberty without performing a complete physical examination. No bone age evaluation was performed, and the patient was outside the age range for a precocious puberty diagnosis. Based upon his diagnosis, Dr. Geier treated Patient H with Lupron.

There was no evidence ⁴²⁴ that the parents were notified of the risk and potential adverse effects of the treatment or that Dr. Geier monitored her. g. Patient I Patient I, a male with autism, was nine and a half years old when Dr. Geier initially assessed him. Dr. Geier prescribed the patient Lupron for precocious puberty and treated him with chelation therapy without meeting the patient or performing a physical examination. Dr. Geier provided a parent of Patient I with a consent form, which the parent signed.

The consent form stated that Patient I would be prescribed DMSA, a medication approved for use by the FDA. Dr. Geier, however, did not prescribe DMSA. Instead, he prescribed DMPS, which is not approved for any use by the FDA. The consent form also stated that the patient’s treatment protocol was approved by the IRB for the ICI, an organization run by Dr. Geier.

The consent form did not convey that the IRB was affiliated with the ICI or with Dr. Geier. DISCUSSION I. Res Judicata Before discussing Dr. Geier’s arguments on the merits, we address the Board’s argument that Dr. Geier’s petition for judicial review should have been dismissed on res judicata grounds. The Board acknowledges that a voluntary dismissal typically is done without prejudice. It argues, however, that pursuant to Md. Rule 2-506(e), a notice of voluntary dismissal “operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim.” Here, as indicated, after the Board’s decision, Dr. Geier filed, on September 14, 2012, a petition for judicial review in the Circuit Court for Baltimore County, on September 17, ⁴²⁵ 2012, a petition for judicial review in the Circuit Court for Montgomery County, and on September 18, 2012, a petition for judicial review in the Circuit Court for Baltimore City.

In at least one of the petitions, he asserted: “[petitions for Judicial Review are also being filed in Montgomery and Baltimore Counties. Petitioner believes that venue is appropriate in one or both of these other counties, and he files the instant Petition for Judicial Review only as a precaution in the event that the [courts] in these other venues reach a contrary conclusion.” On December 28, 2012, Dr. Geier voluntarily dismissed his Baltimore City petition, without prejudice, stating that he was “electing to proceed with the judicial review in Montgomery County.” On January 2, 2013, he voluntarily dismissed his Baltimore County petition, without prejudice, stating that he was “electing to proceed with the judicial review in Montgomery County.” On February 13, 2013, the Board moved for dismissal of the Montgomery County petition, the only remaining petition, on the ground of res judicata. The Board argued that, pursuant to Md. Rule 2—506(c), because Dr. Geier had voluntarily dismissed the same petition for judicial review in two other courts, the second voluntary dismissal operated as an adjudication upon the merits. Dr. Geier responded that, in filing his petitions, he “believed that venue for judicial review was proper in multiple counties,” and “given the 30-day statute of limitations on such petitions, [he] could not afford to risk dismissal of his petition for filing in the incorrect venue.” Thus, “out of an abundance of caution, [he] filed his petition in all three of the counties where he believe venue might be appropriate.” On March 25, 2013, the court denied the Board’s motion to dismiss, stating as follows: This case is unlike the usual situation where Rule 2-506(c) arises. [Dr. Geier] ... did not file and then dismiss two successive lawsuits.

Here [Dr. Geier] simultaneously filed three petitions for judicial review in three different Mary ⁴²⁶ land courts ... claiming he was unsure of the proper venue and was concerned about the statute of limitations. Ultimately, [Dr. Geier] voluntarily dismissed the Baltimore City and Baltimore County petitions and chose to proceed only with the Montgomery County case. Whatever [Dr. Geier’s] reason[s] were for originally filing three separate petitions, it cannot be said that applying the “two dismissal” rule to this situation would further the purpose of Rule 2-506(c). [The Board] has not asserted that it was prejudiced by the dismissals. The dismissals did not result in duplicative, wasteful or harassing litigation.

While a literal interpretation of Rule 2-506(c) may weigh in favor of dismissal, the [c]ourt looks to substance over form and finds it would run contrary to the intent behind Rule 2-506(c) and the interests of justice to grant this Motion to Dismiss and “close the courthouse doors” to [Dr. Geier]. Lastly, and perhaps more importantly is the fact that this case is not an initial lawsuit. Further, despite the fact that it is customary to call these cases administrative appeals, they are not. This kind of action[ ] is for judicial review of an administrative decision.

(Footnote omitted). The Board argues on appeal, as it did before the circuit court, that under the plain language of Md. Rule 2-506(c), “the second dismissal should have operated as an adjudication on the merits.” It asserts that the circuit court “explicitly recognized as much but concluded that the spirit of the rule counseled against dismissing Dr. Geier’s action.” To the contrary, the Board asserts, Dr. Geier’s actions in “forcing] the Board to litigate this matter in three separate jurisdictions while he maneuvered to land in the court he believed gave him the best chance to win,” manipulated both the courts and the Board. The Board argues that this Court should affirm the circuit court’s judgment on “the additional ground” that the Montgomery County petition was barred under the doctrine of res judicata pursuant to Md. Rule 2-506(c). ⁴²⁷ Dr. Geier contends that this issue is not properly before this Court. Stating that the Board is seeking to attack, as opposed to affirm, the court’s decision, Dr. Geier contends that, for this issue properly to be before this Court, the Board was required to file an appeal or a cross-appeal, which the Board did not do.

On the merits, Dr. Geier contends that the “two dismissal” rule, which provides that a second voluntary dismissal of a complaint operates as an adjudication on the merits, only precludes “a party from proceeding with a subsequent third action where the action has been dismissed twice previously.” He asserts that, in this case, the present proceeding was not a “subsequent action” because it was “the second of three total actions filed,” and the “action in Montgomery County was commenced before either of the other two actions were dismissed.” Moreover, he argues, his motive in filing in three courts was “not to harass the Board but to avoid the dismissal of his appeal” for improper venue. We need not address this issue on the merits. We agree with Dr. Geier that the issue is not properly before this Court because the Board did not file a cross-appeal raising this issue. In Paolino v. McCormick & Company, 314 Md. 575, 579 , 552 A.2d 868 (1989), the Court of Appeals explained the circumstances when a cross-appeal is impermissible and when it is required: [A]n appeal or cross appeal is impermissible from a judgment wholly in a party’s favor.

Offutt v. Montgomery Cty. Bd. of Ed., 285 Md. 557 , 564 n. 4 [ 404 A.2d 281 ] (1979). In that situation, however, despite a party’s inability to raise adverse issues by appeal or cross appeal, if the losing party appeals, the winning party may argue as a ground for affirmance matters resolved against it at trial. As Judge Eldridge explained, for the Court, in Offutt : [W]here a party has an issue resolved adversely in the trial court, but ... receives a wholly favorable judgment on another ground, that party may, as an appellee, argue as a ground for affirmance the matter that was resolved ⁴²⁸ against it at trial____ This is merely an aspect of the principle that an appellate court may affirm a trial court’s decision on any ground adequately shown by the record.

Id. (citations omitted). But one who seeks to attack, modify, reverse, or amend a judgment (as opposed to seeking to affirm it on a ground different from that relied on by the trial court) is required to appeal or cross appeal from that judgment. Accord Uninsured Employers’ Fund v. White, 219 Md.App. 410, 422-23 , 100 A.3d 1275 (2014).

Joseph H. Munson Co. v. Secretary of State, 294 Md. 160 , 448 A.2d 935 (1982), aff’d, 467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984), is helpful in our analysis of this case. There, Munson sought a declaration that a statute was unconstitutional. Id. at 162-63, 448 A.2d 935 . The Secretary of State argued that the statute was constitutional, but he also challenged Munson’s standing to raise the constitutional issue.

Id. at 167-68 , 448 A.2d 935 . The circuit court declared that the statute was constitutional. Id. at 166 , 448 A.2d 935 . After Munson appealed, the Secretary of State reasserted his challenge to Munson’s standing.

Id. at 167-68 , 448 A.2d 935 . Munson argued that the issue was not properly before the Court because the Secretary failed to file a cross-appeal. Id. The Court of Appeals agreed with Munson, stating as follows: Under circumstances where absence of standing would present an alternate ground for upholding a trial court’s judgment, an appellee is entitled to argue that ground in an appellate court.

In such situation, a cross-appeal would be unnecessary and, in fact, would be improper. Moreover, in that situation, even if lack of standing were not raised by the appellee, an appellate court noticing the issue would normally consider it sua sponte under the principle that a judgment will ordinarily be affirmed on any ground adequately shown by the record, whether or not relied on by the trial court or raised by a party. ⁴²⁹ Thus, in the case at bar, if the trial court had dismissed the action on some ground other than lack of standing, the Secretary as appellee would be entitled to argue Munson’s alleged lack of standing as an alternate basis for affirmance. However, the trial court did not dismiss the action. Instead, it rendered a declaratory judgment on the merits.

Munson’s alleged lack of standing would not furnish an alternate ground for affirming the declaratory judgment. On the contrary, the Secretary’s argument amounts to an attack upon the judgment. If the issue is properly before us, and if we agreed that Munson had no standing, we would be obliged to order that the trial court’s judgment be reversed and that the case be remanded with directions to dismiss the action. Consequently, the Secretary is attempting to challenge the trial court’s judgment in this case without having taken an appeal.

A party to a trial court proceeding, however, is not entitled to seek direct appellate review and reversal of the trial court’s judgment unless he has filed a valid, timely order of appeal. The Secretary, not having filed an order of appeal, may not on appeal attack the trial court’s declaratory judgment. Id. (citations omitted).

A similar analysis applies here. The circuit court affirmed the decision of the Board on the merits, but it denied the Board’s request to dismiss the case on the ground of res judicata. The Board’s argument on appeal is that the circuit court should have dismissed the petition, and it erred in failing to do so and instead addressing the merits of Dr. Geier’s claims. If we agreed, we would not be affirming the circuit court on another ground, but rather, we would be reversing the circuit court and remanding with directions to dismiss the petition for judicial review.

Accordingly, the Board was required to file a cross-appeal. Because it did not do so, this issue is not properly before this Court, and we decline to address it. ⁴³⁰ II. Substantial Evidence 7 A. Standard of Review Judicial review of an administrative decision “generally is a ‘narrow and highly deferential inquiry.’ ” Seminary Galleria, LLC v. Dulaney Valley Improvement Ass’n, Inc., 192 Md.App. 719, 733 , 995 A.2d 1068 (2010) (quoting Maryland-Nat’l Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 83 , 985 A.2d 1160 (2009)). This Court looks “through the circuit court’s decision and evaluates the decision of the agency,” Chesapeake Bay Foundation, Inc. v. Clickner, 192 Md.App. 172, 181 , 993 A.2d 1163 (2010), 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.’ ” Cosby v. Dep’t of Human Res., 425 Md. 629, 638 , 42 A.3d 596 (2012) (quoting Bd. of Phys.

Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376 (1999)). With respect to the Board’s factual findings, we apply the substantial evidence test, which “‘requires us to affirm an agency decision, if, after reviewing the evidence in a light most favorable to the agency, we find a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ ” Miller v. City of Annapolis Historic Pres. Comm’n, 200 Md.App. 612, 632 , 28 A.3d 147 (2011) (quoting ⁴³¹ Montgomery Cnty. v. Longo, 187 Md.App. 25, 49 , 975 A.2d 312 (2009)). Administrative credibility findings likewise are entitled to great deference on judicial review.

Credibility findings of hearing officers who themselves have personally observed the witnesses “ ‘have almost conclusive force.’ ” Kim v. Maryland State Bd. of Physicians, 196 Md.App. 362, 370 , 9 A.3d 534 (2010), aff'd, 423 Md. 523 , 32 A.3d 30 (2011) (quoting Anderson v. Dep’t of Pub. Safety and Corr. Srvs., 330 Md. 187, 217 , 623 A.2d 198 (1993)). A reviewing court “ ‘may not substitute its judgment for the administrative agency’s in matters where purely discretionary decisions are involved.’ ” Mueller v. People’s Counsel for Baltimore Cnty., 177 Md.App. 43, 82-83 , 934 A.2d 974 (2007) (quoting People’s Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007)), cert. denied, 403 Md. 307 , 941 A.2d 1106 (2008).

With respect to the Board’s conclusions of law, “a certain amount of deference may be afforded when the agency is interpreting or applying the statute the agency itself administers.” Employees’ Ret. Sys. of Balt. v. Dorsey, 430 Md. 100, 111 , 59 A.3d 990 (2013). “We are under no constraint, however, ‘to affirm an agency decision premised solely upon an erroneous conclusion of law.’ ” Id. (quoting Thomas v. State Ret. & Pension Sys., 420 Md. 45, 54-55 , 21 A.3d 1042 (2011)). B. Violation of [¶] § 14-404(a)(22) The Board found that Dr. Geier violated [¶] § 14-404(a)(22), which requires a physician to meet the standards for quality medical care.

The Board concluded as follows: By failing to properly evaluate patients before treating them with an intensive regimen of drug therapy, by providing the parents with inadequate or falsified consent forms, by failing to properly evaluate whether his treatment was working, by ordering continued therapy to a patient for whom there was no possibility of monitoring the effects, and by failing to keep adequate records Dr. Geier failed to meet the standard of quality care required by [HO] § 14-404(a)(22). ⁴³² In support of these conclusions, the Board made the following findings of fact: (1) Dr. Geier failed to meet basic medical standards for evaluating patients and conducting medical examinations and keeping adequate records of treatments and diagnoses. He failed to conduct an adequate initial evaluation of any of these patients and failed to make an adequate record of an examination for any of these patients. He began treatment often without sufficient information about the patients’ physical condition. “In many cases, [Dr. Geier] had no information at all about the Patients’ physical conditions.” For example, Dr. Geier treated Patient I for nine months without any physical examination and in fact without seeing him and without even documenting this patient’s height and weight. He treated Patient B for almost three years without a physical examination and before