Pickert v. Maryland Board of Physicians

WOODWARD, J. This appeal involves a judicial review of an administrative agency’s disciplinary proceedings against a licensed physician in Maryland. On October 30, 2002, appellee, the Maryland State Board of Physicians (“the Board”), charged appellant, Steven A. Pickert, M.D., under the Maryland Medical Practice Act, Md.Code (1983, 2005 Repl-Vol.), § 14-401 et seq. of the Health Occupations Article (“H.O.”), for failing to meet appropriate standards for the delivery of quality medical and surgical care (H.O. § 14-404(a)(22)) and for failing to keep adequate medical records (H.O. § 14-404(a)(40)). Both charges were in regard to Dr. Pickert’s evaluation and treatment of Patient A. 1 Following an evidentiary hearing conducted by an Administrative Law Judge (“ALJ”), a Proposed Decision issued by the ALJ, and written exceptions by the parties thereto, the Board issued a Final Opinion and Order on May 7, 2004. Concluding that Dr. Pickert violated H.O. §§ 14-404(a)(22) and (40), the Board reprimanded Dr. Pickert and ordered his successful completion of two Board-approved courses, one in geriatric medicine and the other in medical record keeping.

In a Memorandum Opinion and Order filed August 26, 2005, the Circuit Court for Frederick County, acting on Dr. Pickert’s petition for judicial review, remanded the case to the Board, because, inter alia, the Board improperly excluded from evidence certain documents reflecting Dr. Pickert’s defense verdict in his medical malpractice trial. No appeal was taken from the circuit court’s order. ⁴⁹⁴ On February 13, 2006, in a Final Decision and Order on Remand, the Board again found that Dr. Pickert violated H.O. §§ 14-404(a)(22) and (40) and imposed the same sanctions. In a Memorandum Opinion and Order filed on February 16, 2007, the circuit court affirmed the Board’s Final Decision and Order on Remand. On appeal to this Court, Dr. Pickert presents one question for our review, which we have rephrased: Did the Board err on remand by failing to follow the order of the circuit court to consider, as evidence, the jury verdict and judgment in favor of Dr. Pickert from a related medical malpractice action?

For the following reasons, we shall uphold the decision of the Board and thus affirm the judgment of the circuit court. BACKGROUND On or about November 22, 2000, Patient A’s survivors filed a claim against Dr. Pickert and others 2 with the Health Claims Arbitration Office (“HCAO”). Arbitration by HCAO was waived, and the medical malpractice case was transferred to the Circuit Court for Frederick County. In their complaint, Patient A’s survivors alleged that Dr. Pickert was negligent in the management of Patient A’s medical care and failed to timely diagnose a large abdominal aortic aneurysm.

The jury returned a verdict for Dr. Pickert, specifically finding that he was not negligent in the care and treatment of Patient A. The HCAO claim was forwarded to the Board, which initiated an investigation of Dr. Pickert’s treatment of Patient A. On October 30, 2002, the Board charged Dr. Pickert with violation of two provisions of the Maryland Medical Practice Act — failure to meet appropriate standards for the delivery of quality medical and surgical care and failure to keep adequate medical records, H.O. §§ 14-404(a)(22) and (40) respectively. ⁴⁹⁵ An administrative law judge (ALJ) conducted an evidentiary hearing on these charges for five days in May, June, and July 2003. On September 29, 2003, the ALJ issued a Proposed Decision, to which the parties filed exceptions. 3 On May 7, 2004, the Board issued a Final Opinion and Order, modifying the ALJ’s Proposed Decision. Concluding that Dr. Pickert violated Sections 14-404(a)(22) and (40), the Board ordered that Dr. Pickert be reprimanded and successfully complete two Board-approved courses. Additionally, in its opinion, the Board noted the following error of the ALJ: [T]he ALJ admitted into evidence (as [Dr. Pickert’s] Exhibits 7 and 8) the records which show that Dr. Pickert was not liable in the malpractice case involving [Patient A].

Although neither of these rulings had a substantial effect on this case, the Board disagrees with both. The ALJ clearly understood and articulated that a malpractice action is a different type of case in which a different issue is heard by a lay jury, and that therefore malpractice verdict documents are not particularly probative in a case arising under the Medical Practice Act — yet the ALJ admitted these non-probative documents into evidence. Since the Board agrees that documents reflecting the verdicts of medical malpractice cases are not probative of the issue in a Medical Practice Act case, they should not have been admitted into evidence. This ruling is intended as a prior adjudication as that term is used in Md. State Gov’t Code Ann. § 10-214(b).

This is not intended to limit the use of any other evidence that may have been used in a malpractice case (transcripts of testimony, depositions, medical records, factual admissions, etc.), which evidence may well be probative and admissible. Thereafter, Dr. Pickert filed a petition for judicial review in circuit court, and oral argument was heard on August 17, 2005. ⁴⁹⁶ In a Memorandum Opinion and Order filed August 26, 2005, the circuit court remanded the case to the Board. The circuit court concluded, in part, 4 that the Board should not have excluded the documents reflecting Dr. Pickert’s defense verdict in his medical malpractice trial from evidence in determining whether Dr. Pickert violated H.O. § 14-404. The court wrote: Md. State Gov’t Code Ann. § 10-213 states that, in an administrative agency appeal, each party in a contested case shall offer all of the evidence that the party wishes to have made part of the record.

It goes on to state that the presiding officer may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs, and give probative effect to that evidence. The presiding officer may exclude evidence that is incompetent, irrelevant, immaterial, or unduly repetitious. While the Board is correct when it states that “verdict sheets in prior malpractice actions reflect the vagaries of a different proceeding on a different issue ... in which the concepts of negligence, proximate cause, proof or monetary damages and contributory negligence are at play,” we disagree that this makes the verdict sheet incompetent, irrelevant, or immaterial. [Dr. Pickert’s] defense verdict in his medical malpractice case, reflecting a jury’s determination that [Dr. Pickert] did not breach his duty of care, is a piece of evidence that a reasonable and prudent individual would commonly accept when deciding whether there had been a violation of the medical standard of care under § 14-404(a)(22) of the Medical Practice Act. While the AL J, and ultimately the Board, could have decided to give little weight to the verdict of the jury in its decision, it was ⁴⁹⁷ improper to hold that the verdict was completely non-probative and not consider it as evidence.

Because the verdict sheet was neither incompetent, immaterial, or irrelevant, and because a reasonable and prudent individual would consider it when determining whether Dr. Pickert violated the medical standard of care, this evidence was not subject to exclusion under § 10-213(d) of the State Government [AJrticle of the Annotated Code of Maryland. (Emphasis added). On February 13, 2006, the Board issued a Final Decision and Order on Remand. The Board again found that Dr. Pickert violated the standard of care in his treatment of Patient A under H.O. § 14-404(a)(22) and failed to keep adequate medical records in violation of H.O. § 14-404(a)(40).

As before, the Board ordered that Dr. Pickert be reprimanded and successfully complete two Board-approved courses. In reference to Dr. Pickert’s defense verdict, the Board stated: In its Memorandum Opinion and Order, the circuit court found that the Board should have considered the defense verdict in a prior medical malpractice case filed against Dr. Pickert in deciding whether he provided substandard medical care under the Medical Practice Act. On remand, the Board convened to re-consider this case and issues this Final Decision and Order on Remand after considering the directives in the circuit court’s remand order, specifically, that the Board ... consider as evidence [Dr. Pickert’s] Exhibit 7 (“Judgment”), and [Dr. Pickert’s] Exhibit 8 (jury “Verdict Sheet”) that Dr. Pickert proffered during the evidentiary hearing before the [ALJ]. The Board agrees with the State that the malpractice jury verdict sheet and judgment in Dr. Pickert’s favor does not bind the Board to a finding that Dr. Pickert violated the Medical Practice Act by providing substandard medical ⁴⁹⁸ care.

The Board agrees with the State that the issue of the standard of quality medical care in a physician licensure disciplinary case poses a different question answered by different legal standards and different triers of fact. As the circuit court ruled, these two documents were only pieces of evidence to be considered along with the other 20 documentary exhibits and expert witness testimony admitted into evidence at the evidentiary hearing before the [ALJ]. The Board concludes that a jury’s verdict, regardless of whether the verdict is “negligent” or “not negligent,” in a related medical malpractice case has no conclusive, binding effect on the Board’s ultimate conclusion on the issue of whether Dr. Pickert violated section 14-404(a)(22) of the Medical Practice Act by providing substandard medical care to the patient. The circuit court has ruled that the Board’s ruling [in] its Final Opinion and Order of May 7, 2004, which flatly excluded those documents from evidence, was an error of law.

The Board, not having appealed the circuit court’s decision, is bound by the law of the case to admit and consider those documents. The Board had previously opined that admission or not of these documents would not have any “substantial effect” on the case. In considering these documents now, on remand, the Board finds that they have no substantial effect on the case. These documents reflect the opinion of a lay jury on a related but different issue in a different context.

The documents are admitted, but the Board has given them little weight. The Board’s consideration of these documents has not changed in any way the Board’s factual findings or legal conclusions, nor does it have any effect on the sanction imposed. (Emphasis added). On March 14, 2006, Dr. Pickert filed a petition for judicial review of the Board’s Final Decision and Order on Remand in ⁴⁹⁹ circuit court.

In a Memorandum Opinion and Order filed February 16, 2007, the court affirmed the Board’s Final Decision and Order on Remand. In relevant part, the court noted that the Board appropriately considered the defense verdict as evidence, and therefore, did not violate the circuit court’s remand order of August 26, 2005. The court wrote: On remand, the Board clearly considered the verdict sheet, but chose to give it very little weight in its consideration of all the evidence. The Board stated, “[t]he documents are admitted, but the Board has given them little weight.” The Board’s decision to give the jury verdict little weight is not inconsistent with this Court’s order.

This Court merely ordered that the evidence be considered, not that the evidence be given any significant weight or conclusionary and binding effect. Thus the Board’s statement that the jury verdict sheet “has no conclusive, binding effect on the Board’s ultimate conclusion” is consistent with this Court’s Order. The Board was free to attach any significance to the evidence it felt necessary, so long as the evidence was at least considered. It was the Board’s prerogative to decide that the jury verdict sheet had no significant effect on its final decision.

Because the Board definitively stated that it considered the jury verdict as a piece of evidence, this Court finds that the Board did not violate its Order. Dr. Pickert timely noted this appeal. STANDARD OF REVIEW In reviewing the decision of an administrative agency, “ ‘we reevaluate the decision of the agency, not the decision of the lower court.’ ” Days Cove Reclamation Co. v. Queen Anne’s County, 146 Md.App. 469, 484 , 807 A.2d 156 (2002) (quoting Gigeous v. Eastern Correctional Instit., 363 Md. 481, 495-96 , 769 A.2d 912 (2001)). We examine whether the agency’s decision is “ ‘in accordance with the law or whether it is arbitrary, illegal, and capricious.’ ” Md. Dep’t. of the Env’t. v. Ives, 136 Md.App. 581, 585 , 766 A.2d 657 (2001) (citations ⁵⁰⁰ omitted).

Thus, our role is “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.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). When reviewing an agency’s conclusions of law, “we may substitute our judgment for that of the agency” if we conclude that the agency’s decision is based on “erroneous conclusions of law.” Ives, 136 Md.App. at 585 , 766 A.2d 657 . When, however, we decide “whether the agency’s conclusions were premised on an error of law, we ordinarily give ‘considerable weight’ to ‘an administrative agency’s interpretation and application of the statute which the agency administers.’ ” Montgomery County v. Rotwein, 169 Md.App. 716, 727 , 906 A.2d 959 (2006) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999)). Here, Dr. Pickert does not claim that the Board’s decision is not based on substantial evidence.

Rather, Dr. Pickert asserts that the Board erred as a