Lee-Bloem v. State

MATRICCIANI, Judge. This appeal arises out of a complaint alleging that appellant, Dr. Alice Lee-Bloem, a licensed psychiatrist, provided substandard care to a patient under the Medical Practice Act, Md.Code (1981, 2005 Repl. Vol., 2008 Supp.), § 14-401 et seq. of the Health Occupations Article (“HO”). Appellant filed a verified complaint in the Circuit Court for Baltimore City against the State of Maryland, the Maryland Board of Physicians (“the Board”) and its individual members, the Maryland Department of Health and Mental Hygiene and its Secretary, John M. Colmers (collectively the “State Appellees”); and the ³⁷⁹ Maryland Psychiatric Society and three peer reviewers assigned to the case by that body (collectively the “Society Appellees”).

Appellant sought a declaratory judgment and permanent injunction against any further proceedings by the Board under both Maryland law and 42 U.S.C. § 1983 (2000). The State Appellees moved to dismiss on the grounds that (1) appellant failed to exhaust her administrative remedies, (2) [¶] § 14-405(g) prohibits a pre-charge challenge to the Board’s investigatory process, and (3) appellant failed to allege an actionable violation of her constitutional rights. The Society Appellees moved to dismiss on the same grounds, and also on the ground that appellant’s claim under 42 U.S.C. § 1983 was not ripe. The circuit court granted appellees’ motions to dismiss appellant’s complaint for failure to state a claim.

Appellant appealed, and presents the following issues for our review, which we have slightly reworded: I. Whether the court erred in dismissing appellant’s action based upon the doctrine of the exhaustion of administrative remedies.

II

Whether the court erred in dismissing appellant’s action pursuant to [¶] §§ 14-405(g) and 14-401(e)(5).

III

Whether the court erred in dismissing appellant’s action as not ripe under 42 U.S.C. § 1983 . For the reasons below, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Appellant is a psychiatrist who is licensed by the Board to practice medicine in Maryland. On April 21, 2005, the Board sent appellant a letter advising her that a complaint had been filed against her for allegedly providing substandard medical care to a patient diagnosed with schizophrenia.

The complaint, which was made by a psychologist who was also the patient’s former domestic partner, alleged that appellant had improperly reduced and then withdrew the patient’s medi ³⁸⁰ cation, resulting in several psychotic episodes. The complaint also alleged that appellant (1) prides herself in getting her patients off of medication and into treatments containing only nutritional supplements; (2) recommends that her patients buy those expensive supplements from mail order companies; and (3) makes all of her diagnoses and treatment plans based on “muscle testing,” which the complainant alleged is “a notoriously unreliable technique popular with orthomolecular medicine practitioners and naturopaths.” Pursuant to [¶] § 14 — 401(c)(2), 1 the Board referred the allegations to the Maryland Psychiatric Society (“the Society”), a non-profit entity with which the Board had contracted for the provision of peer reviews in cases involving psychiatrists. 2 The Society engaged three psychiatrists — Neil Brian Sandson, M.D., Michael Spodak, M.D., and Ellen G. McDaniel, M.D. — to review whether appellant had met the relevant standard of care. Those peer reviewers met with appellant between August and November of 2006. On April 30, 2007, appellant filed a Verified Complaint for a Declaratory Judgment, a Permanent Injunction, and Other Temporary Relief in the Circuit Court for Baltimore City. ³⁸¹ Appellant alleged that the review process was not governed by sufficient rules, and requested the court to declare it violative of appellant’s due process rights and therefore illegal and invalid.

Appellant also contended that the peer reviewers were not qualified to determine whether she had complied with the appropriate standard of care because they were unfamiliar with the orthomolecular approach she employed. Appellant also alleged that one of the peer reviewers, Dr. Sandson, was an improper reviewer on conflict of interest grounds because he worked at a hospital at which appellant’s patient had been previously treated. At the time appellant filed her complaint, the Board had not taken any disciplinary action or issued any charges against her. On June 11, 2007, the State Appellees moved to dismiss on the grounds that appellant failed to exhaust her administrative remedies, [¶] § 14-405(g) prohibits a pre-charge challenge to the Board’s investigatory process, and appellant failed to allege an actionable violation of her constitutional rights.

On June 22, 2007, the Society Appellees moved to dismiss on the same grounds, and also on the ground that appellant’s claim under 42 U.S.C. § 1983 was not ripe. On October 26, 2007, the court held a hearing on appellees’ motions. After hearing argument from all parties, the court stated that “the rules and regulations specify that [appellant’s concerns] must be raised during the administrative process before [they are] brought to court.” The court further added that the “[c]ase law makes it very clear that [appellant’s] objections must first be made during the administrative process and then [they] can be made upon judicial review before this Court. Under the circumstances, that has not happened.” Consequently, the court stated that it would grant appellees’ motions to dismiss.

On November 15, 2007, the court entered an order to that effect. This appeal followed. DISCUSSION As questions of law, we review the issues raised by appellant de novo. Garfink v. Cloisters at Charles, Inc., 392 Md. 374, 383 , 897 A.2d 206 (2006). ³⁸² I. Appellant argues that the court erred in dismissing her action based upon the doctrine of administrative exhaustion.

Appellant argues that the doctrine does not apply in this case because thé Board lacked proper jurisdiction insofar as it did not have regulations and procedures in place for the investigatory phase of its physician disciplinary process. Appellant also argues that the doctrine does not apply in this case because the Board’s administrative process does not provide an adequate remedy to address her constitutional claims, and exhaustion of the administrative remedies available under the administrative scheme set forth in the Medical Practice Act was therefore futile. We disagree. We initially note that the Maryland Uniform Declaratory Judgments Act, Md.Code (1973, 2006 Repl.

Vol.), § 3-401 et seq. of the Courts and Judicial Proceedings Article (“CJP”), provides that the exhaustion of administrative remedies doctrine applies in the declaratory judgment context. CJP § 3-409(b) (providing that, “[i]f a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle”). Turning to appellant’s allegation that the Board lacked jurisdiction to entertain her claim, the Court of Appeals has made clear that an agency is without jurisdiction “only where it lacks a clear authority to adjudicate a given class of claims.” Heery Int’l, Inc. v. Montgomery County, 384 Md. 129, 144 , 862 A.2d 976 (2004) (citing State Comm’n on Human Relations v. Freedom Express/Domegold, Inc., 375 Md. 2, 19-20 , 825 A.2d 354 (2003)). “Therefore, a party wishing to circumvent the administrative process must demonstrate that an agency is operating indisputably beyond its authority, and distinctly outside its fundamental jurisdiction.” Id. at 144-45 , 862 A.2d 976 (citing as an example a probate court, invested only with authority over wills and estates, attempting to try a person for a criminal offense). Applying that law to the facts of the case at bar, it is clear that the Board was not operating beyond its authority or ³⁸³ outside its jurisdiction.

The Medical Practice Act authorizes the Board to investigate and charge physicians suspected of standard of care violations, and sets forth a detailed and comprehensive administrative process that the Board must follow in doing so. Thus, appellant’s allegation that the Board violated the peer review provisions of the Act — even if proven to be true — does not deprive the Board of its jurisdiction to investigate whether appellant violated the Act’s standard of care provisions. Appellant’s argument that the exhaustion of administrative remedies doctrine does not apply because the administrative process does not provide an adequate remedy to address her constitutional claims is also without merit. Appellant claims due process violations arising out of the lack of guidelines governing the peer review process, the peer reviewers’ lack of qualifications, and Dr. Sandson’s alleged conflict of interest.

Appellant cites the Administrative Procedure Act, Md.Code (1984, 2004 Repl. Vol.), § 10-101 et seq. of the State Government Article, and the Code of Maryland Regulations as limiting the authority of the Office of Administrative Hearings to hear and rule on peer review challenges because its jurisdiction does not attach until charges are brought. We disagree. [¶] § 14-405(g) provides that “[t]he hearing of charges may not be stayed or challenged by any procedural defects alleged to have occurred prior to the filing of charges.” Furthermore, the Court of Appeals has succinctly stated that “questions, including Constitutional issues, that could have been but were not presented to the administrative agency may not ordinarily be raised for the first time in an action for judicial review.” Bd. of Physician Quality Assur. v. Levitsky, 353 Md. 188, 207-08 , 725 A.2d 1027 (1999). The Court in Levitsky therefore made clear that challenges such as the ones appellant now raises before us must first be raised in an administrative hearing in order to be preserved for judicial review.

The Levitsky Court did provide one exception to the rule, explaining that, ³⁸⁴ [t]o the extent that deficiencies or irregularities in the precharge proceedings actually compromise the accused’s opportunity for a full and fair hearing on the charges ... or suffice in some way to deprive the agency (or court)