Rudman v. Maryland State Board of Physicians

MURPHY, J. In the Circuit Court for Frederick County, Dr. Michael S. Rudman, Petitioner, (1) was charged with second degree assault and fourth degree sex offense, (2) entered an Alford plea of guilty to the crime of second degree assault, 1 and (3) was granted probation before judgment pursuant to § 6-220 of the Criminal Procedure Article. As a result of that disposition, the Maryland State Board of Physicians (the Board), Respondent, concluded that (in the words of its order revoking Petitioner’s license), “[sjince [Petitioner] has pled guilty to a crime of moral turpitude, and no appeal was filed, and the time for filing an appeal has passed, the Board must revoke his license to practice medicine under [Md. Code Ann., Health Occ. (H.O.) ] § 14-404(b)(2).” The Circuit Court “vacated” the revocation, but that decision was reversed by the Court of Special Appeals in State Board of Physicians v. Rudman, 185 Md.App. 1 , 968 A.2d 606 (2009). Petitioner then filed a “Petition for Writ of Certiorari” in which he presented this Court with the following question: ²⁴⁶ [Petitioner] entered into an Alford plea on one count of second degree assault.

The Circuit Court struck the guilty plea and granted [Petitioner] probation before judgment, placing him on supervised probation for three years. Thereafter, the Board revoked [Petitioner’s license without a hearing. Did the Circuit Court err by vacating the Final Decision and Order of the Board? We granted the petition. 409 Md. 47 , 972 A.2d 861 (2009).

For the reasons that follow, we hold that the Board erred in its conclusion that Petitioner’s license “must” be revoked on the basis of his guilty plea. We shall therefore reverse the judgment of the Court of Special Appeals. Background Following a criminal investigation that resulted from a complaint made to the Board by one of Petitioner’s former patients, Petitioner was charged with six offenses—two against “patient A,” and four against “patient B”—in a Criminal Information that included the following assertions: COUNT 1-SECOND DEGREE ASSAULT Patricia McLane, Assistant State’s Attorney for Frederick County, Maryland, upon her official oath, does inform the Court that Michael Stephen Rudman, on or about February 5, 2005, at Frederick County, Maryland, did unlawfully assault [patient A] in the second degree; contrary to the form of the Act of Assembly in such cases made and provided and against the peace, government, and dignity of the State. (Criminal Law § 3-203) CJIS Code: 1 H15 COUNT 2-FOURTH DEGREE SEXUAL OFFENSE And, Patricia McLane, Assistant State’s Attorney for Frederick County, Maryland, upon her official oath, does further inform the Court that Michael Stephen Rudman, on or about February 5, 2005, at Frederick County, Maryland, did unlawfully commit a sexual offense in the fourth degree upon [patient A] contrary to the form of the Act of Assem ²⁴⁷ bly in such cases made and provided and against the peace, government, and dignity of the State.

(Criminal Law § 3-308) CJIS Code: /, 3600 On August 16, 2006, Petitioner entered a guilty plea to Count One. The record shows that the following transpired in open court: [THE PROSECUTOR]: Your Honor, it’s my understanding today that the defendant is going to enter an [Alford] plea to Count One, second degree assault, on [patient A]. Upon acceptance of the plea and finding of guilt, [the] State will enter a [nolle] prosequi as to the remaining charges. THE COURT: ...

Dr. Rudman, Count One alleges that you on or about February 5th, 2005, in Frederick County, Maryland did unlawfully assault [patient A] in the second degree. Do you understand that charge? THE [PETITIONER]: Yes, sir. THE COURT: Do you understand that you’re entering a plea of guilty, an [Alford] plea of guilty, but a plea of guilty nevertheless to that charge?

THE [PETITIONER]: Yes, I—I—I deny that this has occurred, but I admit that the State has evidence for a conviction. THE COURT: Well, let me—do you understand that an [Alford] plea, you are not admitting to me that you did the charge? THE [PETITIONER]: Yes, sir. THE COURT: You are admitting to me that if this had gone to trial, whether before a jury or before a judge, the State had sufficient evidence—the State does have sufficient evidence to prove the charges beyond a reasonable doubt if a court or jury believed the witnesses.

Do you understand that? THE [PETITIONER]: Yes, sir. ²⁴⁸ THE COURT: And in recognition of that, and what you consider to be a favorable recommendation from the State, you’re entering into this plea. Do you understand that? THE [PETITIONER]: Yes, sir.

THE COURT: Do you wish to plead guilty, an [Alford] plea of guilty, but a plea of guilty nevertheless, to Count One, second degree assault? THE [PETITIONER]: Yes, Your Honor. THE COURT: Have a seat next to [defense counsel] and listen to [the prosecutor]. [THE PROSECUTOR]: Your Honor, had the State proceeded to trial, we would have called Deputy Tracey McCutcheori from the Frederick County Sheriffs Office, who would testify that she interviewed [patient A] regarding her contact with the defendant, who both Ms. McCutcheon and [patient A] would identify as the same individual seated before you today, Dr. Michael Rudman. [Patient A] would take the stand and state that she had an appointment with Dr. Rudman at the Middletown Family Practice, located at South Church Street in Frederick County; that her appointment was February 5th, 2005, at 12:15 p.m. She made the appointment for a sinus infection, and her daughter was present, and they went into the examination room together, [patient A] would tell the Court that her vitals were taken by the nurse on duty, but she had left the room after taking the vitals.

At that time, Dr. Rudman entered the room, greeted both her and her daughter. She would say he examined her ears, nose and throat regarding the sinus infection. At that time, [patient A] mentioned to the doctor that she had neck pain for three weeks. He asked her to remove her jacket and lay down on the examination table.

He approached her from the top portion of the table and put his hands on her neck and head area. His hands were ²⁴⁹ in [patient A’s] hair, and [patient A] would state that this initially seemed odd. He attempted to elongate her neck by pulling on her head. He then asked her to sit up and asked if her daughter could step outside the examination room. [Patient A] asked her daughter to leave the room, and at that time Dr. Rudman asked [patient A] to sit on the small round stool that was in the room.

He stood behind her and flexed and massaged her neck. At first, she thought he was simply brushing up against her back. And this action continued throughout the massage, and she realized that it was his erect penis against her back, approximately in the middle of her back near her bra line. She tried to move away from him by straightening her back, moving towards the front of the stool.

She would testify she was extremely nervous and could not believe that this was occurring. Eventually he stopped the massaging and the rubbing against her back, and at that time he said that the daughter could re-enter the examination room. When she—when [patient A] turned around to retrieve the jacket from the chair in the examination room, she would testify that she saw that Dr. Rudman was, indeed, erected at the time. He washed his hands, sat down on the stool and wrote out a prescription for her sinus infection.

She would testify that she observed some discomfort from Dr. Rudman in sitting down because of his physical state. At that time, she was nervous and wanted to get her daughter and herself out of the examination room. He finished the prescription. He never stood again.

She left the office as quickly as possible. [Patient A’s] husband ... would testify that approximately 15 minutes after [patient A] left her appointment, he saw her at a rental unit that they own in Frederick City, [patient A] tried to tell her husband what happened, but was crying extremely hard. And [patient A’s husband] would testify that he thought she had received some extremely bad news from the doctor’s visit. It was about 10 minutes before [patient A] could calm down and explain to him what had occurred on that day. ²⁵⁰ [Patient A] would testify that she changed doctors with her insurance company the next day. All these events occurred in Frederick County, Maryland. [DEFENSE COUNSEL]: Your Honor, we agree that that would have been [patient A’s] testimony.

THE COURT: Based on [Petitioner’s] answers to my questions, I find this plea of guilty, an [Alford] plea, but a plea of guilty nonetheless, to Count One, second degree assault, is freely, voluntarily and understandingly made. There are sufficient facts to enter into the record to prove the allegations of that charge beyond a reasonable doubt, and I do accept this plea of guilty. THE COURT: ..., I do find that the request for probation before judgment is appropriate. Today, on Count One, second degree assault, I strike the verdict of guilty and grant you probation before judgment under criminal procedure 6-220.

You are placed on three years supervised probation to begin today, to be supervised by Parole and Probation. (Emphasis supplied). On October 26, 2006, the Board issued a “SHOW CAUSE ORDER,” requiring that Petitioner show cause why his license to practice medicine should not be revoked. This order was issued in response to a “PETITION TO REVOKE THE [PETITIONER’S] MEDICAL LICENSE” that included the following assertions: 11.

In assessing whether a crime involves moral turpitude, the Board examines the underlying facts of a particular case. Bd. of Dental Examiners v. Lazell [Lazzell], 172 Md. 314, 320 , 191 A. 240 (1937) (noting a crime which, at common law, was not a crime of moral turpitude may nonetheless constitute a crime of moral turpitude when analyzed for purposes of professional discipline). In the ²⁵¹ case of Stidwell v. State Bd. of Chiropractic Examiners, 144 Md.App. 613 , 799 A.2d 444 (2002), the Court of Special Appeals recognized that the term “moral turpitude” has “evolved from its common law trappings into an even more fluid descriptive tool” which “for the business of professional licensing ... strikes the broader chord of public confidence in the administration of government.” Stidwell, 144 Md.App. at 618-19 , 799 A.2d 444 . 12. Likewise, “[t]he Board, in past decisions, has considered the underlying conduct where the criminal offense is not in itself a crime of moral turpitude at common law”: The case of professional discipline ... is a different matter [in comparison to the assessment of moral turpitude in an impeachment context].

Here, the Board is mandated to determine whether a licensee is morally fit to practice medicine. This inquiry involves assessing the risk to the public posed by physicians convicted of certain crimes, as well as protecting the integrity of the profession, by insuring that licensees have good moral character. Clearly, the Board must look further than to the mere elements of the crime, and actually examine the physician’s underlying conduct, in order to make this determination. In the Matter of Keith-Jan Lindemann, M.D., MBP Case Number 2005-0481; In the Matter of Michael Q. Stearns, M.D., BPQA Case Number 95-0611; See also In the Matter of Rosario Guerzon, M.D., BPQA Case Number 93-0727. 13.

In the instant case, the [Petitioner] admitted there was sufficient evidence to prove beyond a reasonable doubt that he brushed his erect penis against a patient while massaging her neck. His conduct took place during the course of the patient’s appointment seeking medical care. 14. Unwanted sexual contact with another person is an inexcusable crime for anyone to commit; what is even more disturbing is when it takes place under the guise of a medical examination. The American Medical Association’s principles of Medical Ethics define the essentials of a physi ²⁵² dan’s honorable behavior, including that the physician have “compassion and respect for human dignity and rights,” and that he or she “... respect the law.” AMA Guideline E-0.01 Principles of Medical Ethics. 15.

Based on the totality of the circumstances, the [Petitioner’s] unwanted sexual contact with a patient under the guise of a medical examination constitutes a crime of moral turpitude. Moreover, the time for filing an appeal has expired as more than 30 days have passed since the [Petitioner’s] August 16, 2006, plea hearing. Wherefore, in accordance with the mandate of H.O. § 14-404(b)(2), the Office of the Attorney General prays that the Board enter an Order REVOKING the [Petitioner’s] license to practice medicine. (Emphasis supplied).

Petitioner filed an “ANSWER TO PETITION TO REVOKE AND MOTION TO DISMISS,” and a “REQUEST FOR HEARING” on that motion, in which he presented the following arguments: The Board’s attempt to revoke [Petitioner’s] medical license under subsection 14-404(b)(2) must fail, and this Petition be dismissed, because the Alford plea entered into by [Petitioner], the alleged trigger for this Petition, is not a final judgment. * * * Under Section 14-404(a)(3), the Board could have opted to charge [Petitioner] with “immoral or unprofessional conduct in the practice of medicine” according to the allegations of the Petition. Under that section, [Petitioner] would have been entitled to a hearing. Instead, the Board ignored that provision for the sole purpose of denying [Petitioner] an opportunity to be heard on this issue. [Petitioner] entered into an Alford plea as to one count of second degree assault on August 16, 2006. In [Ward v. ²⁵³ State, 83 Md.App. 474 , 575 A.2d 771 (1990), the Court of Special Appeals] described an Alford plea as “... a specialized type of guilty plea where the defendant, although pleading guilty, continues to deny his or her guilt, but enters the plea to avoid the threat of greater punishment.” [Id. at 478, 575 A.2d at 772 .] Specifically, during the hearing when the plea was entered into, [Petitioner] stated: “I deny that this has occurred, but I admit the State has evidence for a conviction.” The Court then further clarified that [Petitioner] was admitting “the State does have sufficient evidence to prove the charges beyond a reasonable doubt if a court or jury believed the witnesses.” Second degree assault under Maryland law is defined as an intentional, harmful physical contact with the victim that is not legally justified.

Foy v. Giant Food, Inc., 298 F.3d 284 (2002). There is no sexual element involved in this offense, and it is defined as a misdemeanor, pursuant to Md. Code [Criminal Law] Section 3-203(b)____[Petitioner] did not plead guilty to any sexual offense, and vehemently denies that any “unwanted sexual contact” occurred at any time with this patient, or any other patient. Pursuant to the definition of the offense which [Petitioner] pled guilty to, there is no support for the Board’s position that this offense is a crime of moral turpitude. (Emphasis in original).

Without holding a hearing, the Board filed a “FINAL DECISION AND ORDER,” in which it rejected Petitioner’s arguments, “Ordered that the license to practice medicine of [Petitioner], is hereby revoked,” and responded as follows to Petitioner’s argument that his license could not be revoked without a hearing: [Petitioner] argues that the Board cannot consider as facts the testimony of the victim as proffered by the State’s Attorney during the plea agreement hearing. The ²⁵⁴ regulations provide that the transcript of the plea agreement proceeding may be before the Board; in fact, that transcript is on the list of four documents, one of which must be in the administrative record before the Board may issue a show cause order in a case such as this. COMAR 10.32.02.04 C.(l)(b)(iii). The purpose of this regulation is to allow the Board to consider the actual facts of this offense.

In the plea agreement proceeding, [Petitioner] agreed that if the case went to trial the State would produce the victim and that she would testify as to certain facts. The testimony she would produce if called was set out in the court transcript. Although [Petitioner] now characterizes the victim as an “emotionally disturbed woman,” and though he now argues against that testimony, he waived his right to confront this witness, his right to cross-examine this witness and the right to produce any other evidence tending to discredit her testimony or to establish a different factual scenario. He waived his rights in the plea agreement proceeding in return for the dropping of other charges, the avoidance of a trial and the avoidance of the possibility of a much more severe criminal sanction of up to ten years