Kim v. Maryland State Board of Physicians

BARBERA, J. Maryland Code (1981, 2009 Repl. Vol.), § 14-404 of the Health-Occupations Article, provides, inter alia, that the Board of Physicians (“Board”) has the authority to sanction a physician licensed in Maryland if the licensee: “is guilty of: Immoral ... or unprofessional conduct in the practice of medicine,” § 14-404(a)(3); “Willfully makes or files a false report or record in the practice of medicine,” § 14-404(a)(ll); or “Willfully makes a false representation when seeking or making application for licensure or any other application related to the practice of medicine,” § 14-404(a)(36). This case calls upon us to determine whether the Board erred in finding that Petitioner Charles Y. Kim violated each of the above subsections of § 14-404, 1 when he falsely indicated on an application for renewal of his license that he was not involved in a medical malpractice action. For the reasons that follow, we hold that the Board committed no error.

I. Petitioner came to the United States in 1973. He received his initial license to practice medicine in Maryland in 1977. He practices in the area of Obstetrics and Gynecology and is board certified. In June 2005, a medical malpractice lawsuit was filed in the Circuit Court for Frederick County, naming Petitioner as a defendant (“the Wagner case”).

Petitioner answered the complaint in July 2005, and was deposed in November 2005. The ⁵²⁸ Wagner case was pending when, on February 23, 2006, Petitioner filed an application for renewal of his privileges at Frederick Memorial Hospital. The application asked: “Have any professional liability or malpractice claims been made against you during the past two years?” Petitioner initially marked “No” in response to that question but then amended his response and marked “Yes.” Petitioner also submitted a handwritten addendum to the application. The addendum provided additional information about three malpractice matters: two concluded matters and the Wagner case, which was scheduled to be tried in November 2006.

Then, on August 15, 2006, Petitioner filed with the Board an application for Renewal of Medical License (“the application”). The application included three questions relevant to the present matter, to all of which Petitioner responded “No.” CHARACTER AND FITNESS QUESTIONS 6. The following questions pertain to the period since July l, 2004. If this is your first renewal, these questions apply to the period commencing with the date of your initial licensure or reinstatement.

SINCE JULY 1, 2004 * * * m. Have you been named as a defendant in a filing or settlement of a medical malpractice action? If you answered WES” to any of questions 6(a) through (q), attach a separate page with a complete explanation of each occasion. Each attachment must have your name in print, signature and date. 13.

HEALTH CARE ALTERNATIVE DISPUTE RESOLUTIONS QUESTIONS The following questions pertain to the period since July 1, 2004. If this is your first renewal, these questions apply to ⁵²⁹ the period commencing with the date of your initial licensure or reinstatement. b. Have you, your partners 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? f. Are you, or any member of your immediate family or household, currently a party in a medical malpractice case?

In November 2006, Petitioner’s counsel was attempting to schedule a Case Resolution Conference (“CRC”), 2 for an unrelated matter. During the conversation with the Assistant Attorney General who was prosecuting the matter on behalf of the Board, Petitioner’s counsel revealed that Petitioner was scheduled to be in court on the date proposed for the CRC in that unrelated matter. That disclosure led to further investigation by the Board, which learned that Petitioner, despite the responses provided in his license renewal application, had been involved in a malpractice action at the time he submitted his application in August 2006. On March 5, 2007, the Board charged Petitioner with violating the three subsections of § 14-404 that we mentioned at ⁵³⁰ the outset: subsection (a)(3), which prohibits unprofessional conduct in the practice of medicine; (a)(ll), which prohibits the willful making of a false report or record in the practice of medicine; and (a)(36), which prohibits 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 requested that Petitioner be reprimanded, take a course on ethics, and be required to pay a $10,000 fíne. Administrative Proceedings Petitioner asked for and received a hearing before an Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings. Petitioner moved to dismiss the charges, asserting that the Board impermissibly pursued the charges based on confidential information received from Petitioner’s counsel while scheduling the unrelated CRC. Petitioner relied in support of his argument on COMAR 10.32.02.03.C(7)(d), which provides: “Except for consideration of a proposed resolution of a case achieved through the CRC, the Board may not make later use of any commentary, admissions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” (Emphasis added.) The ALJ denied the motion, in a written order, on three grounds: knowledge of the existence of the Wagner case was available from two other sources, the Maryland Health Claims Arbitration Office and the public judiciary website; the information Petitioner’s counsel had disclosed was unrelated to the merits of the CRC proceedings; and, in any event, the Board had relied, not on counsel’s disclosure but rather, on information discovered through its own investigation and obtained from other sources.

The merits hearing took place on July 12, 2007. The compliance analyst who reviewed Petitioner’s renewal application testified that it was routine for the Board to obtain all filings from the Health Claims Arbitration Office and review renewal applications filed during the pendency of a Board investigation. The analyst further testified that information provided on renewal applications is verified through informa ⁵³¹ tion obtained from the Health Claims Arbitration Office. She became aware of the medical malpractice claim against Petitioner before he renewed his application, and the Health Claims Arbitration filing (in the Wagner case) was part of the Board’s record prior to the investigation of the unrelated matter in 2006.

The analyst also testified that she was prompted to review Petitioner’s application after learning from the Assistant Attorney General for the Board that Petitioner would be in circuit court in December 2006. She then searched for Petitioner’s name on the judiciary case information website. Petitioner testified that he attended medical school in Korea and then came to the United States in 1973. He completed a three-year residency, in English, and received his Maryland license to practice medicine in 1977.

He passed separate written and oral exams, both administered in English, in 1983. He speaks English on a regular basis with his patients and colleagues. He added, though, that he has some difficulty understanding certain aspects of the English language, “especially legal or written.” Petitioner admitted that he had knowledge of the Wagner case since 2005, had met with his attorney, and was deposed in connection with that matter on November 9, 2005. Petitioner explained his responses to the questions on the license renewal application.

Beginning with question 6(m), Petitioner testified that he did not intend to deceive the Board; rather, he had read “filing or settlement” as “filing and settlement” (emphasis added); moreover, because the Wagner case had not settled, he believed the correct response to question 6(m) was “no.” As for question 13(f), Petitioner testified that he understood the question to pertain only to family or household members, not himself. Petitioner further testified that he failed to respond to questions 21 through 31 when he filed the application, and, when it was returned to him, his wife assisted him in completing the remainder of the application. Petitioner acknowledged that he signed the affirmation at the end of the renewal application. ⁵³² Petitioner’s license renewal application was admitted into evidence. Also admitted was Petitioner’s application for renewal of privileges at Frederick Memorial Hospital, which predated his license renewal application and acknowledged the pending Wagner case.

The ALJ issued a Proposed Decision on November 29, 2007. The ALJ determined that Petitioner’s conduct was unprofessional and occurred “in the practice of medicine,” because the information withheld in the license renewal application involved the “delivery of patient care in those matters that led to the filing of a malpractice claim.” The ALJ also found that Petitioner knew of the pending malpractice case and had a duty to disclose that information in the license renewal application. The ALJ reasoned that, because the Board relies on the information provided to assess physicians’ fitness, the failure to disclose information regarding pending malpractice claims constitutes “serious misconduct that may involve substantial risk of harm to patients, and may diminish the standing of the medical profession as caregivers.” The ALJ further concluded that the conduct was unprofessional because physicians are required to provide truthful information on renewal applications. The ALJ also concluded that Petitioner acted willfully because he “intended to provide the false statements that he submitted to the Board, and that his acts were not accidental or inadvertent.” The ALJ rejected Petitioner’s argument that “willful” contains the element of bad motive or knowledge that the acts were unlawful.

The ALJ further rejected Petitioner’s testimony that he merely had misunderstood the question. In that regard, the ALJ concluded that Petitioner had practiced medicine in Maryland for thirty years, lived in the United States for approximately thirty-three years, completed a three-year residency, completed oral and written exams in English, conversed with both patients and colleagues in English, and completed approximately fifteen license renewal applications during his practice. The ALJ recommended that Petitioner be reprimanded, fined $5,000, and be required to take an ethics course. ⁵³³ The Board heard Petitioner’s exceptions to the ALJ’s proposed order on February 27, 2008. The Board’s Final Decision and Order adopted the majority of the ALJ’s findings of fact 3 as well as the ALJ’s conclusions of law that Petitioner had acted “in the practice of medicine” and “willfully.” As sanctions, the Board placed Petitioner on six months’ probation, fined him $5,000, and required him to complete an ethics course.

Judicial Review Petitioner filed a Petition for Judicial Review in the Circuit Court for Frederick County, Maryland. Petitioner raised the following claims of error: (1) the ALJ erred in denying the motion to dismiss the charges on the ground that they stemmed from a violation of COMAR 10.32.02.03.C(7)(d); (2) the ALJ erred in concluding that “the act of filing an application for renewal of a license constitutes the practice of medicine”; (3) “the ALJ erred in concluding that a ‘false report in the practice of medicine’ includes an application for renewal of a license, when no such interpretation has been made by statute or case law”; (4) the ALJ erred in finding that Petitioner willfully made a false representation in the renewal application; and (5) the ALJ erred in declining to dismiss the charges, for lack of substantial evidence. Following a hearing on the petition, the Circuit Court affirmed the Board’s decision in a written opinion. 4 Petitioner noted an appeal to the Court of Special of Appeals, which also affirmed the Board’s decision. Kim v. Md. State Bd. of Physicians, 196 Md.App. 362, 367 , 9 A.3d 534, 537 (2010).

That court held, with regard to the Board’s use of ⁵³⁴ Petitioner’s counsel’s statement made during the scheduling of the CRC, that COMAR 10.32.02.03.C(7) did not apply because the statement was not substantive in nature. Id. at 372 , 9 A.3d at 540 . The Court of Special Appeals reasoned that, even if the regulation applied, the regulation’s specific exemption for information available from other sources would permit its use nevertheless. Id. at 372-73 , 9 A.3d at 540 .

The Court of Special Appeals held that the Board did not err in deciding that Petitioner violated § 14-404(a)(3). The court reasoned that Petitioner’s conduct “was sufficiently intertwined with the ‘effective delivery of patient care’ ” to be deemed “in the practice of medicine” because non-disclosure of pending malpractice cases on an application for license renewal interferes with the Board’s ability to investigate. Id. at 377, 9 A.3d at 543 . In so holding, the intermediate appellate court looked to Cornfeld v. State Board of Physicians, 174 Md.App. 456 , 921 A.2d 893 , cert. denied, 400 Md. 647 , 929 A.2d 890 (2007).

There, the court, relying in part on the Board’s interpretation of the statute it administered, held that the physician was engaged “in the practice of medicine” when he lied to a peer review committee and the Board during their respective investigations of his conduct during a patient’s surgery. Kim, 196 Md.App. at 377-78 , 9 A.3d at 542-43 . The Court of Special Appeals further held that there was substantial evidence to support the Board’s decision that Petitioner’s conduct was willful, for purposes of § 14-404(a)(11) and (36). 196 Md.App. at 382 , 9 A.3d at 546 . The intermediate appellate court rejected Petitioner’s assertion that “willful” required the intent to deceive.

Id. at 379 , 9 A.3d at 544 . That court affirmed the Board’s findings that Petitioner had knowledge of the Wagner case and intended to provide his responses on the application. Id. at 380 , 9 A.3d at 545 . We granted Petitioner’s petition for writ of certiorari to answer three questions, which Petitioner frames as follows: 1.

An Assistant Attorney General for the [Board] used statements made by counsel for Dr. Kim concerning a Case Resolution Conference (CRC) to bring this action against ⁵³⁵ Dr. Kim. Should the [Board] be permitted to use information obtained through the CRC process to bring a new action against a physician? 2. The [Board] charged Dr. Kim with “unprofessional conduct in the practice of medicine” and with willfully making or filing “a false report or record in the practice of medicine.” Is completing a renewal application for a physician’s license acting “in the practice of medicine?” 3. The [Board] also charged Dr. Kim with “willfully” making false representations when making application for licensure to practice medicine.

Dr. Kim’s testimony clearly indicated that he has difficulty with English. Should the [Board] be permitted to charge and punish a physician for “willfully” making false representations, when the physician did not understand the questions posed? II. “It is well settled that the State Judiciary’s role in reviewing an administrative agency’s adjudicatory decision is limited; it ‘is limited to determining ... if the administrative decision is premised upon an erroneous conclusion of law.’ ” Finucan v. Md. Bd. of Physician Quality Assurance, 380 Md. 577, 590 , 846 A.2d 377, 384-85 (2004) (quoting United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994)) (citation omitted). “[A]n administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Md. Aviation Admin. v. Noland, 386 Md. 556, 572 , 873 A.2d 1145, 1154 (2005) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1991)). “Despite the deference, ‘it is always within our prerogative to determine whether an agency’s conclusions of law are correct.’ ” Adventist Health Care, Inc. v. Md. Health Care Comm’n, 392 Md. 103, 121 , 896 A.2d 320, 331 (2006) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576 , 870 A.2d 186, 193 (2005)). ⁵³⁶ The court’s review of the administrative agency’s factual findings “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions.” Finucan, 380 Md. at 590 , 846 A.2d at 384 ^85 (quoting United Parcel Serv., 336 Md. at 577 , 650 A.2d at 230 ) (internal quotation mark omitted). We uphold the agency’s factual conclusion if “a reasoning mind could have reached” that conclusion.

Banks, 354 Md. at 68 , 729 A.2d at 380 (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978)) (internal quotation marks omitted). We defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. A reviewing court ‘must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence and to draw inferences from that evidence.’ Id., 729 A.2d at 380 -81 (quoting CBS v. Comptroller, 319 Md. 687, 698 , 575 A.2d 324, 329 (1990)) (alterations in original) (citation omitted). It is through this limited judicial-review prism that we address Petitioner’s questions.

A. Use of publicly available information to institute proceedings Petitioner claims that the Board ran afoul of COMAR 10.32.02.03.C(7)(d) by using information obtained through the CRC process to investigate and ultimately press the charges against him in the present case. To repeat, that regulation provides: “Except for consideration of a proposed resolution of a case achieved through the CRC, the Board may not make later use of any commentary, admissions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” (Emphasis added). Petitioner asserts that the regulation prohibits the Board from using information acquired from a statement Petitioner’s counsel made to the Board’s counsel, while the two were attempt ⁵³⁷ ing to schedule an unrelated CRC, that Petitioner would be “in court” on the date proposed. Petitioner further asserts that the Board’s position violates public policy because it discourages candor during the CRC process.

The Board counters that the statement does not come within the protection of confidentiality afforded by the regulation because the statement was not made during a CRC and was not substantive. The Board further argues that Petitioner’s interpretation of the scope of the confidentiality protection ignores the plain meaning of the regulation, and “the Board did not actually attempt to use the statement ... in any subsequent proceeding.” Reviewing courts are to accord some deference to an agency’s interpretation of its own regulations, Noland, 386 Md. at 573 n. 3, 873 A.2d at 1155 n. 3, and we shall do so here. We, like our colleagues on the Court of Special Appeals, see Kim, 196 Md.App. at 372 , 9 A.3d at 540 , find no error in the Board’s decision that COMAR 10.32.02.03.C(7)(d) does not include within its protection of confidentiality statements concerning the mere logistics attendant to a CRC. Indeed, Petitioner’s contrary view of the regulation does not comport with a common sense interpretation of its plain language.

That is to say, a statement relating solely to the scheduling of a CRC is not “commentary,” an “admission! ],” a “fact! ] revealed,” or a “position!! taken” at a CRC. COMAR 10.32.02.03.C(7)(d). We likewise find no error in the Board’s additional rationale that the statement that Petitioner was “in court” falls within the regulation’s exception to the confidentiality protection for information that “is available from other sources or is otherwise discovered.” Neither do we find fault, as Petitioner would have us do, with the Board’s finding additional support for that conclusion in Attorney Grievance Commission v. Lee, 387 Md. 89 , 874 A.2d 897 (2005). In Lee , an attorney under disciplinary review had attempted to use, for impeachment purposes, a witness’s statement allegedly made during a confidential peer review proceeding, id. at 103 , 874 A.2d at 905 , despite Maryland Rule 16-723(a), which prohibits ⁵³⁸ such use in proceedings subsequent to the peer review, id. at 110 , 874 A.2d at 911 .

We pointed out that, although “what happens in Peer Review stays in Peer Review,” a party nevertheless has an opportunity to discover information through other avenues and to use that information discovered independently. Id. at 113-14 , 874 A.2d at 911-12 . See also Md. Rule 17-109(e) (providing for confidentiality of communications during mediation proceedings, but not protecting information from disclosure “solely by reason of its use in mediation”). Like Maryland Rules 16-723(a) and 17-109(e), COMAR 10.32.02.03.C(7)(d), by its plain language, allows for the use of information that, even though obtained during a CRC, is “available from other sources.” There was substantial evidence in the present case not only that the information that Petitioner would be “in court” on a certain date was available from the Health Claims Arbitrations Office and the Maryland Judiciary Case Search, but also that the Board actually acquired the malpractice case information from those other sources.

It follows that the Board committed no error in its construction of COMAR 10.32.02.03.C(7)(d). Moreover, substantial evidence in the record supports the Board’s application of that regulation to Petitioner’s case. B. “In the practice of medicine ” Petitioner challenges the Board’s conclusion that the filing of his application for renewal of his license occurred “in the practice of medicine.” He asserts that the conduct is not within the purview of the statutory definition. 5 He argues ⁵³⁹ that there is a legally insufficient