Roane v. Maryland Board of Physicians

NAZARIAN, J. After receiving and investigating complaints involving medication-for-sex relationships between appellant Donald C. Roane, M.D. and two vulnerable patients, the Maryland Board of Physicians (“Board”) initiated two separate disciplinary proceedings against him: one to suspend his license to practice medicine summarily and another to revoke it altogether. The Board ultimately took both actions, and prevailed when Dr. Roane challenged both decisions in the Circuit Court for Anne Arundel County. Dr. Roane contends in these appeals that the Board lacked authority to suspend him and seek to revoke his license at the same time and, even if it had the authority, that both decisions were arbitrary and capricious and not supported by substantial evidence. Because we find no errors in the revocation proceeding, we affirm that decision, and because that decision leaves Dr. Roane with no license to suspend, we dismiss his appeal of the suspension proceeding as moot.

I. BACKGROUND Dr. Roane was first licensed to practice medicine in Maryland in 1965. He maintained a full-time family practice in West River, Maryland and Annapolis, Maryland from about 1973 through 2001, “semi-retired” in 2001, then purportedly ⁶²⁴ retired from the practice of medicine in 2008. The Board first charged Dr. Roane with violations of the Maryland Medical Practice Act, Md.Code (1981, 2009 Repl. Vol.), § 14-101 et seq. of the Health Occupations Article (“HO”) on April 12, 2010. 1 A. Patient Allegations.

The Board first received allegations involving Dr. Roane in February 2008, when one of his former patients (“Patient A”) filed a complaint with the Board. Patient A alleged that Dr. Roane sexually assaulted her beginning in 1974 when, at the age of fourteen, she began medical treatment with him for insulin-dependent diabetes. She alleged that the assaults continued through 2003. Dr. Roane’s advances toward Patient A began when he fondled her breasts at her first or second visit with him; she said that he showed an interest in her social life and led her to believe he cared for her.

Patient A had a history of sexual abuse by her father and brother, along with a history of depression and behavior that one therapist characterized as “narcissistically self-absorbed, and extremely manipulative.” Over the near thirty-year history of the relationship, Dr. Roane gave Patient A samples of prescription medication in return for sexual activity. These medications included not just insulin to treat her diabetes, but also Zoloft to treat her depression. When Patient A began counseling in 2002, her counselor discussed Patient A’s relationship with Dr. Roane in an attempt to “break her long history of victimization,” and ⁶²⁵ the last time Patient A saw Dr. Roane was in her apartment in January 2003, when he physically assaulted her. 2 Patient B’s complaint, filed with the Board in May 2004, gave a detailed account of sexual activity in Dr. Roane’s office on repeated occasions. Patient B, who also had a complex history that included incarcerations and crack cocaine abuse, first sought treatment from Dr. Roane in May 1982, when she was in her early twenties.

In 1988 or 1989, Dr. Roane sexually assaulted her while she was lying on the examination table and after an attending nurse left the room. Patient B continued treatment with Dr. Roane and “[o]n a number of occasions,” Dr. Roane “gave Patient B free prescription medication or money in return for fellatio.” Patient B did not report the conduct at the time, but did file a complaint in May 2004 at the urging of a psychiatrist who was treating her at that time. B. The Summary Suspension Proceeding. The Board initiated two proceedings in response to the complaints filed by Patient A and Patient B. First, on April 12, 2010, the Board charged Dr. Roane with violating [¶] § 14-404 and voted on May 21, 2010 to suspend his license summarily.

The parties appeared before an administrative law judge (“ALJ”) to present evidence regarding the charges on June 7, 2010 (the “Suspension Proceeding”), and at that time the Board presented the testimony of Patients A and B, along with that of a licensed certified social worker who had treated Patient A. Dr. Roane also testified at the hearing (the “Suspension Hearing”), and although his version of events differed from the accounts of the Board’s witnesses, he hardly exonerated ⁶²⁶ himself. He admitted to a personal relationship with Patient A, including two sexual encounters. He testified that he treated Patient A in the 1975-76 time period and did not provide any treatment for her after that time. Nevertheless, he admitted writing on her behalf to Pfizer, a pharmaceutical company, in January 2000 to support her request for free antidepressant medication, and admitted that he described Patient A in his letter as someone he “followed in [his] practice for more than 20 years.” He testified that his representation to Pfizer was inaccurate, but was meant as “embellishment” designed to ensure that Patient A received the free medication.

He contended that he did not believe he had any reason to “be concerned” about having a personal or sexual relationship with Patient A because in his view, she was not his patient. And when asked during the Suspension Hearing about his relationship with Patient A—“And is it your testimony that after that physician/patient relationship was terminated, in your opinion, that there was no problem with having a personal or sexual relationship with her?”—Dr. Roane answered, “Except as far as my marital status.” Dr. Roane categorically denied any sexual contact with Patient B. After hearing and considering the evidence, the ALJ issued a written order that concluded, by a preponderance of the evidence, that Dr. Roane’s continued practice of medicine raised a “substantial likelihood of risk of serious harm to the public health, safety, or welfare,” because of the sexual relationships Dr. Roane initiated and encouraged with Patients A and B. The ALJ discussed at length the encounters between Dr. Roane and Patient A underlying his finding that Dr. Roane engaged in sexual misconduct with Patient A. The ALJ disagreed specifically with Dr. Roane’s contention that he was not “practicing medicine” when he requested medication on Patient A’s behalf from Pfizer. More generally, the ALJ found that the two patients’ independent accounts tended to corroborate further one another’s allegations and bolstered his determination that their versions of events were more credible than Dr. Roane’s. And the ALJ noted that both victims were “vulnerable individuals”: ⁶²⁷ They both were subject to rather easy manipulation.

Neither had substantial means for medical care and both needed medication on a regular basis____[NJeither patient was known to the other, yet their stories regarding [Dr. Roane’s] actions toward them were strikingly similar. Based on his findings, the ALJ concluded that summary suspension was appropriate and affirmed the Board’s decision. Dr. Roane filed exceptions to the ALJ’s decision that attacked the length of the Board’s investigation before initiating the Suspension Proceeding and challenged the Board’s authority to seek summary suspension and revocation simultaneously, but, importantly, did not dispute the ALJ’s factual findings. On December 13, 2010, the Board issued a final decision upholding the decision of the ALJ and ordered summary suspension of Dr. Roane’s license (the “Suspension Order”).

The Department of Health and Mental Hygiene Board of Review affirmed the Suspension Order on April 5, 2011. On April 20, 2011, Dr. Roane filed a petition for judicial review of the Suspension Order in the Circuit Court for Anne Arundel County. By that time, however, the Board had revoked his license through the proceeding we discuss next and, as part of the revocation, terminated the summary suspension. After a hearing, the circuit court dismissed the petition as moot, then denied Dr. Roane’s subsequent Motion to Revise Judgment.

Dr. Roane filed a timely appeal. C. The Revocation Proceeding. The Board initiated a separate proceeding that sought, based on the same alleged violations of [¶] § 14404(a)(3), to revoke Dr. Roane’s license altogether (the “Revocation Proceeding”). This proceeding was assigned to a different ALJ, who held an evidentiary hearing on October 25, 2010 (the “Revocation Hearing”).

The parties agreed at that time to incorporate all of the testimony and exhibits from the Suspension Hearing rather than reprising the same presentations. On January 24, 2011, the ALJ issued a proposed decision in which he upheld the charges and recommended that the Board ⁶²⁸ revoke Dr. Roane’s license. He specifically disagreed with Dr. Roane’s contention that his admission of sexual activity on two occasions with Patient A and the letter to Pfizer were insufficient to justify revocation of his license: I have found that [Dr. Roane] abused his profession to satisfy his sexual desires. In the process, he shamelessly exploited the vulnerabilities of two young women.

The Legislature has given authority to the Board to revoke a physician’s license under these circumstances. Dr. Roane filed exceptions to the Proposed Decision on February 7, 2011. The Board issued a Final Decision and Order (the “Revocation Order”) on June 23, 2011, in which it concluded, consistent with its prior finding, that Dr. Roane had violated [¶] § 14-404 and revoked his license to practice medicine. The Board also directed that the prior Suspension Order, which had issued on May 21, 2010, be terminated as moot.

Dr. Roane petitioned the Circuit Court for Anne Arundel County for judicial review and following a hearing, the court entered an order on March 29, 2012, affirming the Revocation Order (the “Order Affirming Revocation”). The court concluded that Dr. Roane had waived both his argument that the Board’s findings were not based on substantial evidence and his argument that the Board acted arbitrarily and capriciously, because he had not raised these arguments at the proper stage of the proceedings—i.e., in the course of raising exceptions to the ALJ’s findings in front of the Board itself. On April 12, 2012—fourteen days after the circuit court’s entry of its order—Dr. Roane filed a Motion to Alter or Amend and Motion to Revise Judgment (the “Motion to Alter or Amend”). The circuit court denied the Motion to Alter or Amend by order dated May 2, 2012 (the “Order Denying Motion to Alter or Amend”), and he appealed that decision on May 30, 2012.

II

DISCUSSION A. The Playing Field. These two appeals grow out of the same underlying facts, raise the same issues, and are procedurally intertwined to the ⁶²⁹ point where our decision in one (Case No. 542, September Term 2012, the “Revocation Appeal”) drives the outcome of the other (Case No. 271, September Term 2012, the “Suspension Appeal”). For the sake of efficiency, we address both appeals in one opinion, and we start by outlining our analysis. Both appeals ask the same question at the outset: whether the Board had the authority to move simultaneously to suspend Dr. Roane’s license summarily and to revoke it.

We address that question first, and hold that the Health Occupations Article authorized the Board to pursue both forms of discipline at the same time. Dr. Roane argues that Board of Physician Quality Assurance v. Mullan, 381 Md. 157 , 848 A.2d 642 (2004), prohibits the Board from choosing both of these paths at the same time, but we disagree with his reading of Mullan . The issue appears to be one of first impression, as no other Maryland case addresses directly whether the paths are mutually exclusive. This may well be the case because it seems obvious from the structure of the statute that the Board is entitled to suspend and revoke a practitioner’s license at the same time, and so no court has found it necessary to say so expressly.

We analyze the question here to clarify any misconception about Mullan , and we explain below why both as a matter of statutory authority and as a matter of common sense, the Board acted properly. We then address the Revocation Appeal, in which Dr. Roane claims the circuit court improperly dismissed the Petition for Judicial Review on the ground that he waived his right to attack the Board’s findings as unsupported by substantial evidence and as arbitrary and capricious. 3 We agree with the circuit court’s reasoning and affirm its decision to dismiss Dr. ⁶³⁰ Roane’s petition. From there, we address the Suspension Appeal, in which Dr. Roane challenges the Board’s decision to suspend him summarily. 4 But because we conclude that the Board had properly revoked Dr. Roane’s license, the suspension is moot, and we dismiss the Suspension Appeal on that basis. B. Standard of Review.

The scope of judicial review of agency decisions is defined by the Administrative Procedure Act, Md.Code (1984, 2009 Repl. Vol.), § 10-201 et seq. of the State Government Article (“SG”). 5 Within that framework, our review is well defined and, for the most part, quite limited: we look through the circuit court’s review to the agency decision itself and determine whether there is substantial evidence in the record as a whole to support the agency’s findings and conclusions. Wallace H. Campbell & Co., Inc. v. Md. Comm’n on Human ⁶³¹ Relations, 202 Md.App. 650, 662 , 33 A.3d 1042 (2011) (appellate court’s role is narrowly circumscribed and “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions” (quoting Md. Aviation Admin. v. Noland, 386 Md. 556, 571 , 873 A.2d 1145 (2005))). We “defer to the agency’s fact-finding and drawing of inferences if they are supported by the record,” Bd. of Phys.

Quality Assurance v. Banks, 354 Md. 59, 68 , 729 A.2d 376 (1999), and decide “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978) (quoting Dickinson-Tidewater v. Supervisor, 273 Md. 245, 256 , 329 A.2d 18 (1974)); see also Noland, 386 Md. at 572 , 873 A.2d 1145 (noting that a court’s task is not to substitute its own judgment for that of an agency, reasoning that “the expertise of the agency in its own field should be respected”); Salerian v. Md. State Bd. of Physicians, 176 Md.App. 231, 246 , 932 A.2d 1225 (2007). Agency decisions receive no special deference on questions of law, which we review de novo. Talbot County v. Miles Point Property, LLC, 415 Md. 372, 384 , 2 A.3d 344 (2010) (citing Belvoir Farms Homeowners Ass’n. v. North, 355 Md. 259, 267 , 734 A.2d 227 (1999)). Our review of the Revocation Appeal differs slightly because of a procedural mistake on Dr. Roane’s part.

The trial court entered the Order Affirming Revocation on the docket (ie., it “entered judgment” per Rules 1-202 and 2-601) on March 29, 2012. Dr. Roane filed a Motion to Alter or Amend on April 12, 2012. 6 Rule 2-534 requires that a Motion to Alter or Amend be filed “within ten days after the judgment’s entry” (counting weekends under Rule 1-203), in order to toll the period for filing a notice of appeal. Unnamed Att’y v. Att’y Grievance Comm’n, 303 Md. 473, 486 , 494 A.2d 940 (1985). ⁶³² Day Ten after entry of Judgment was April 8, 2012—a Sunday—so the deadline for Dr. Roane to file within ten days fell on the next business day, Monday, April 9, 2012. His Motion to Alter or Amend filed on April 12, then, did not operate to toll his deadline, which in turn meant the deadline to appeal from the underlying decision ran on April 30, 2012.

Md. Rule 8-202(a). But Dr. Roane waited until after the circuit court denied his Motion to Alter or Amend (coincidentally, on April 30) to file a Notice of Appeal, which he did on May 30. As such, Dr. Roane has not appealed from the circuit court’s Order Affirming Revocation, but rather (and only) from the Order Denying the Motion to Alter or Amend. This means that we ask not whether the judge considering the Motion to Alter or Amend “would have reached the same conclusion” as the judge who ruled on the underlying motion, but only whether that conclusion was so manifestly wrong and unjust that failure on his part to vacate the award would constitute an abuse of the wide discretion that attaches to rulings denying motions to vacate existing judgments ....

We have defined “abuse of discretion” in a variety of ways, all of them setting a very high threshold. Wilson-X v. Dep’t of Human Res., 403 Md. 667, 677, 944 A.2d 509 (2008). So with respect to the Revocation Proceeding, we look not at the Board’s Revocation Order, or even the circuit court’s Order Affirming Revocation, but at the Order Denying the Motion to Alter or Amend to determine whether “no reasonable person would take the view adopted by the [trial] court.” Schade v. Md. State Bd. of Elections, 401 Md. 1, 34 , 930 A.2d 304 (2007) (quoting Wilson v. John Crane, Inc., 385 Md. 185, 198 , 867 A.2d 1077 (2005)). C. The Board Was Authorized To Pursue Summary Suspension And Revocation Simultaneously.

Dr. Roane contends that the Board improperly proceeded down two paths at the same time. He contends that the statute giving an agency authority to proceed with a suspension or revocation proceeding requires that the agency choose one of these two remedies, citing Mullan as supporting his ⁶³³ position. The Board disagrees, arguing that neither the applicable statute nor Mullan defines a revocation proceeding and a suspension proceeding as mutually exclusive remedies or requires the Board to choose. Within the Administrative Procedure Act, SG § 10-226(c) provides for judicial review of the revocation or suspension of a license: (1) Except as provided in paragraph (2) of this subsection, a unit may not revoke or suspend a license unless the unit first gives the licensee: (i) written notice of the facts that warrant suspension or revocation; and (ii) an opportunity to be heard.

(2) A unit may order summarily the suspension of a license if the unit: (i) finds that the public health, safety, or welfare imperatively requires emergency action; and (ii) promptly gives the licensee: 1. written notice of the suspension, the finding, and the reasons that support the finding; and 2. an opportunity to be heard. SG § 10-226(c). We see nothing in the language of the statute or in Mullan that remotely suggests that the Board was required to pick one remedy to the exclusion of the other. 7 Mullan involved the suspension of a physician’s license after witnesses testified that he treated pediatric patients while under the influence of alcohol. 381 Md. at 162 , 848 A.2d 642 . The only question before the Court of Appeals was whether SG § 10-226(c) permitted emergency action by way of a summary suspension without first giving a licensee the oppor ⁶³⁴ tunity to be heard, when a suspension was required to protect the “public health, safety, and welfare.” The Court explained that under SG § 10—226(c), there are “two paths [available] to the licensing authority when it seeks to suspend or revoke a license.” Mullan, 381 Md. at 165 , 848 A.2d 642 (emphasis added).

The first of these, pursuant to SG § 10-226(c)(l), requires written notice and the opportunity to be heard before the effective date of a suspension or revocation. The second, on the other hand, under SG § 10-226(c)(2), empowers the Board to exercise its discretion and issue an emergency summary suspension as long as, mthin that order, it gives the licensee prompt notice and an opportunity to be heard. See Mullan, 381 Md. at 167-68 , 848 A.2d 642 . The Court looked specifically at the timing of the summary suspension proceeding under the latter section, and the “two paths” to which it referred were merely two alternative paths to suspension based upon the presence or absence of a risk to the public.

Nowhere did the Court suggest that the “two paths” referenced were the mutually exclusive choices of suspension on the one hand, and revocation on the other. The Board also points out that even within the facts of Mullan , there was a separate appellate proceeding in which Dr. Mullan’s license was revoked as well. See Mullan v. Bd. of Physician Quality Assurance, No. 1598, Sept. Term, 2002 (Md.App. June 9, 2004). Although the substance of unpublished decisions of this Court may not be relied upon or even referred to as precedent, see Md. Rule 1-104, the fact of the unreported Mullan decision demonstrates that a revocation case proceeded simultaneously with a suspension case in the very instance that Dr. Roane purports to use to show only one can take place at a time.

The procedures laid out for summary suspension appear to be more specific than those for revocation, even though the remedy is less drastic, likely because of the need for urgency in the decision-making process. (If you’re going to suspend someone’s livelihood immediately, even if temporarily, you must show with specificity an endangerment to the ⁶³⁵ “public health, safety, or welfare,” much like an applicant for a temporary restraining order has to show that it “clearly appears from specific facts shown by affidavit or other statement under oath that immediate, substantial, and irreparable harm will result ... before a full adversary hearing can be held on the propriety of a preliminary or final injunction.” Md. Rule 15-504(a).) And the effects of the two procedures are different: summary suspension stops a practice immediately and revocation ends it permanently. But the fact that SG § 10-226(c)(2) provides a separate procedure for a summary suspension in no way suggests that it provides an exclusive remedy, and Dr. Roane cites no other authority suggesting this to be the case. Cf.

Rosov v. Md. State Bd. of Dental Exam’rs, 163 Md.App. 98 , 877