Kim v. Maryland State Board of Physicians

EYLER, JAMES R., J. The Maryland State Board of Physicians (“appellee” or the “Board”) charged Charles Y. Kim (“appellant”) with willfully making three false statements about his involvement in a medical malpractice action on his 2006 medical licensure renewal application. Appellant received a hearing before an Administrative Law Judge in the Office of Administrative hearings (“ALJ”), who determined that appellant had made the false statements intentionally and willfully, and further found that he had thereby engaged in unprofessional conduct in the practice of medicine. Appellant filed exceptions with the Board. After a hearing, the Board adopted the ALJ’s findings.

The Board reprimanded appellant, fined him $5,000, required him to take an ethics course, and placed him on probation. Appellant petitioned for judicial review in the Circuit Court for Frederick County, which affirmed. This appeal followed. We, too, affirm.

Facts and Proceedings Appellant has been licensed and has practiced medicine in Maryland since 1977. He was born, reared, and educated in Korea. His native language is Korean. To receive his medical license in Maryland, appellant completed a three-year residency program conducted in English and passed a written and oral English proficiency test.

In 2005, appellant was a defendant in a medical malpractice suit pending in the Circuit Court for Frederick County, captioned Wagner v. Kim, Civil No. C-05-1251. The plaintiff in that case had filed a complaint against appellant on April 19, 2005. Appellant, through counsel, answered the complaint a month later. In November 2005, appellant was deposed.

In February 2006, appellant filed an application for reappointment to the medical staff at Frederick Memorial Hospital (“FMH application”). In the FMH application, appellant admitted that the Wagner case and two others had been filed ³⁶⁸ against him. He also noted that the Wagner case would go to trial in November 2006. Nonetheless, when appellant later completed his license renewal application on August 15, 2006, he answered “no” to the following questions: SINCE JULY 1, 2004: 6(m) Have you been named as a defendant in a filing or a settlement of a medical malpractice action? 13(b) Have you, your parents or associates or anyone in your immediate family or household, been sued or had a claim filed against you or any of them for medical malpractice? 13(f) Are you, or any member of your immediate family or household currently a party in a medical malpractice case?

In November 2006, the Board learned that, contrary to the statements made in his license renewal application, appellant was involved in the Wagner case. The Board learned this during the course of a separate standard of care proceeding initiated by the Board against appellant, Case No. 2004-0803. 1 In that proceeding, a “Case Resolution Conference” (“CRC”) to explore resolution of the issues prior to an evidentiary hearing was scheduled for December 6, 2006. Prior to December 6, in a telephone conversation, appellant’s attorney advised the administrative prosecutor that appellant would not be able to attend the CRC on that date because he had a court appointment in Frederick County. The administrative prosecutor mentioned the conversation to a Board investigator, who then reviewed appellant’s file and performed a “Judiciary Case Search” on the internet.

The search unearthed the Wagner case. ³⁶⁹ Based on this finding, the Board charged appellant with violating the following subsections of the Maryland Medical Practice Act, Title 14 of the Health Occupations Article of the Maryland Code: (1) Maryland Code, Health Occ. § 14-404(a)(3), prohibiting unprofessional conduct in the practice of medicine; (2) Id. § 14-404(a)(11), prohibiting the willful filing of a false statement in the practice of medicine; and (3) Id. § 14-404(a)(36), prohibiting the willful making of a false representation when making an application for licensure or any other application related to the practice of medicine. The Board sought that appellant be reprimanded, that he take a course on ethics, and that he be required to pay a $10,000 fine. Appellant requested and received a hearing before an ALJ. The ALJ issued a Proposed Decision upholding the Board’s charges and recommending that appellant be reprimanded and required to take an ethics course.

The ALJ also recommended that a fine be imposed but reduced to $5,000. As to the fine, the ALJ noted that a fine in addition to a reprimand had to be not less than $5,000 and not more than $30,000. COMAR 10.32.02.06C(4)(d). The ALJ reasoned that, under COMAR 10.32.02.06C(3), the amount should be determined based on (1) the extent to which appellant derived any financial benefit from the misconduct, (2) the willfulness of the sanctioned conduct, and (3) the extent of actual or potential public harm caused by the misconduct.

With these factors in mind, the ALJ concluded that a fine of $10,000 would be “extreme and egregious,” but that a $5,000 fine would properly reflect the nature and extent of appellant’s misconduct. Appellant filed exceptions with the Board, which adopted the ALJ’s finding that appellant violated each of the three relevant sections of the Medical Practice Act. The Board also adopted the ALJ’s proposal that appellant be reprimanded, fined $5,000 (rather than $10,000), and required to take an ethics course. In addition, the Board placed appellant on probation “in order for the Board to supervise compliance with the requirement of the ethics course and in order to deter [appellant] and other physicians from this type of conduct in the future.” Following the Board’s final decision and order, ³⁷⁰ appellant petitioned for judicial review in the circuit court.

The circuit court affirmed. This appeal followed. Standard of Review In reviewing administrative decisions, we bypass the judgment of the circuit court and look directly at the administrative decision. White v. Workers’ Comp.

Comm’n, 161 Md. App. 483, 487 , 870 A.2d 1241 (2005); see, e.g., Gigeous v. E. Corr. Inst., 363 Md. 481, 495-96 , 769 A.2d 912 (2001) (On appeal, “we reevaluate the decision of the agency, not the decision of the lower court.”). “Ordinarily, we are constrained to affirm the agency decision only for the reasons given by the agency....” White, 161 Md.App. at 487 , 870 A.2d 1241 . The scope of judicial review of administrative fact-finding is a particularly narrow and highly deferential one. People’s Counsel for Balt.

County v. Loyola College in Md., 406 Md. 54, 66 , 956 A.2d 166 (2008). Accordingly, we will affirm a decision on the facts if it is supported by “substantial evidence.” See id. at 67 , 956 A.2d 166 . An agency’s fact-finding is based on substantial evidence if “supported by such evidence as a reasonable mind might accept as adequate to support a conclusion.” People’s Counsel for Balt. County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007) (quoting Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080 (1979)).

Administrative credibility findings are likewise entitled to great deference on judicial review. Credibility findings of hearing officers who themselves have personally observed the witnesses “have almost conclusive force.... ” Anderson v. Dep’t of Public Safety, 330 Md. 187, 217 , 623 A.2d 198 (1993) (citations omitted). When “a pure question of law is involved, we may substitute our judgment for that of the administrative agency.” White, 161 Md.App. at 487 , 870 A.2d 1241 . However, “[a]n administrative agency’s interpretation and application of the statute it administers should ordinarily be given considera ³⁷¹ ble weight by the reviewing courts.” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999).

Last, an agency’s choice of sanction is entitled to even greater deference than factual findings or legal conclusions. Spencer v. Bd. of Pharmacy, 380 Md. 515, 529-31 , 846 A.2d 341 (2004). As long as an administrative sanction or decision does not exceed the agency’s authority, is not unlawful, and is supported by competent, material and substantial evidence, there can be no judicial reversal or modification of the decision based on disproportionality or abuse of discretion unless, under the facts of a particular case, the dispropor-tionality or abuse of discretion was so extreme and egregious that the reviewing court can properly deem the decision to be ‘arbitrary or capricious.’ MTA v. King, 369 Md. 274, 291 , 799 A.2d 1246 (2002). The agency’s determination of a sanction must not be second-guessed upon judicial review, even if the court might have imposed a different sanction.

Id. at 291 , 799 A.2d 1246 . Discussion Appellant essentially makes four arguments 2 on appeal: (1) the ALJ failed to address the evidence that the Board impermissibly used appellant’s attorney’s CRC scheduling statement to charge appellant with the violations at issue in this case; (2) the ALJ incorrectly found that appellant’s conduct was “within the practice of medicine,” as required under § 14-404(a)(3) and § 14-404(a)(11); (3) there is insufficient evidence to show that appellant’s conduct was willful, in violation of § 14-404(a)(11) and (36); and (4) the sanction imposed on appellant was excessive. We reject each contention. ³⁷² 1. The Board’s Use of Appellant’s Attorney’s Scheduling Statement Appellant first argues that the Board wrongfully used the statement that appellant would be in court for a separate proceeding to charge him with the violations in this case.

Appellant stresses that the statement was made in the context of a CRC, which is a “voluntary, informal, and confidential proceeding to explore the possibility of a consent order or other resolution” of Board charges. COMAR 10.32.02.03.C(7). The Board’s use of that statement, he argues, violated the regulation governing CRC confidentiality, which prohibits the Board from making “later use of any commentary, admissions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” CO-MAR 10.32.02.03.C(7)(d). In appellant’s view, the ALJ erroneously failed to address the Board’s impermissible use of the statement.

This argument fails for the following reasons. First, and most importantly, the statement that appellant would be in court on the date scheduled for the CRC was not substantive in nature — it merely concerned the logistics of the CRC. As the Board noted in considering appellant’s exceptions, COMAR 10.32.02.03.0(7) does not even apply in this instance because “[t]he statement of [appellant’s] counsel (1) was not part of the CRC process but was a comment made during a scheduling telephone call between the two attorneys; [and] (2) was not related to anything at issue in the scheduled CRC.... ” In other words, issues concerning the mere logistics of a CRC are not entitled to confidentiality or any special treatment under the regulation. We agree with the Board’s determination on this point.

Reviewing courts should give special deference to an agency’s interpretation of its own regulations because the agency is best able to discern its intent in promulgating those regulations. Changing Point, Inc. v. Maryland Health Resources Planning Comm’n, 87 Md.App. 150, 160 , 589 A.2d 502 (1991). Moreover, the regulation governing CRC confidentiality prohibits the Board from later using “commentary, admis ³⁷³ sions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” COMAR 10.32.02.03.C(7)(d) (emphasis added). The subject matter of the statement made in this instance (the fact that appellant was in court on a certain day) was available from another source-existence of the Wagner case was readily ascertainable on the Case Judiciary website.

The only “use” the Board made of the statement was to initiate an investigation that engendered evidence, derived completely from an independent source, that appellant made false statements on his licensure application. 2. Interpretation of “In the Practice of Medicine” Appellant’s next contention is that the Board wrongly construed the phrase “in the practice of medicine” as that term is used in § 14-404(a)(3) and § 14-404(a)(11). “Practice of medicine” is defined in § 14-101(n): (n) Practice medicine.— (1) “Practice medicine” means to engage, with or without compensation, in medical: (i) 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[.] In appellant’s view, neither the plain language of the statute, nor the case law construing it, extend to the filing of a license renewal application. The ALJ rejected this argument, observing that appellate courts have expanded the meaning of “in the practice of medicine” sufficiently to include disclosure ³⁷⁴ of malpractice suits on license renewal applications.

The Board agreed with the ALJ’s interpretation. We also agree. The subject of what is included in the “practice of medicine” has been visited several times by both this Court and the Court of Appeals. In 1984, the Court of Appeals decided McDonnell v. Commission on Medical Discipline, 301 Md. 426 , 483 A.2d 76 (1984).

In that case, the Court of Appeals considered whether a physician who attempted to intimidate witnesses scheduled to testify against him in a medical malpractice action could be disciplined for “immoral conduct of a physician in his practice as a physician,” under the predecessor 3 to § 14-404(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 , reasoning that the meaning of the phrase “practice as a physician” was limited “to matters pertaining essentially to the diagnosis, care or treatment of patients.” Id. at 436 , 483 A.2d 76 . Specifically, the Court held: [I]t is not any immoral conduct of a physician committed during the time of his licensure which is within the terms of [§ 14-404(a)(3) ].

Nor would that subsection embrace immoral conduct simply because, in some manner, it had a general or associative relationship to the physician in his capacity as a member of the medical profession. On the contrary ... the application of [§ 14-404(a)(3)] is directly tied to the physician’s conduct in the actual practice of medicine, i.e., in the diagnosis, care, or treatment of patients. McDonnell, 301 Md. at 436-37 , 483 A.2d 76 . Several years later, in Board of Physician Quality Assurance v. Banks, 354 Md. 59 , 729 A.2d 376 (1999), the Court of Appeals re-examined the phrase “in the practice of medicine,” and distinguished McDonnell .

In Banks , Dr. Banks engaged ³⁷⁵ in sexually harassing conduct towards co-employees while he was on duty at a hospital. Dr. Banks argued that, per the holding in McDonnell , his behavior was not within the practice of medicine because, when it occurred, he was not “in the immediate process” of diagnosing, treating, or evaluating patients. Banks, 354 Md. at 71-73 , 729 A.2d 376 . The Court, however, noting that the “Board has a high degree of expertise in determining what constitutes unprofessional conduct ‘in the practice of medicine,’ ” id. at 76 , 729 A.2d 376 , rejected Dr. Banks’s argument, and refused to more narrowly construe § 14-404(a)(3), as doing so “would lead to unreasonable results and render the statute inadequate to deal with many situations which may arise.” Banks, 354 Md. at 73 , 729 A.2d 376 .

The Court also noted that other jurisdictions “have not applied an extremely technical and narrow definition of the practice of medicine.” Id. at 74 , 729 A.2d 376 (citing cases). Subsequently, in Finucan v. Maryland Board of Physician Quality Assurance, 380 Md. 577 , 846 A.2d 377 (2004), the Court of Appeals reviewed the Board’s charge that Dr. Finu-can violated § 14-404(a)(3) by engaging in a series of sexual relationships with several female patients, while maintaining, at the same time, a physician-patient relationship with them. Id. at 580, 846 A.2d 377 . Dr. Finucan argued that his having sex with his patients was not “in the practice of medicine.” Id. at 595 , 846 A.2d 377 .

The Court, again favoring a broader definition of the practice of medicine, id. at 599 , 846 A.2d 377 , rejected Dr. Finucan’s argument, opining that [ujnethical conduct may indicate unfitness to practice medicine if it raises reasonable concerns that an individual abused, or may abuse, 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 . Most recently, and most notably, in