Smith v. Delaware North Companies

GREENE, J. In the instant case, we address whether Md. Code (1981, 2014 Repl. Vol., 2015 Cum. Supp.), § 14-410 of the Health Occupations Article (“HO”) bars the admission of a Board of Physicians’ consent order as evidence in a civil or criminal proceeding. Brenda Smith (“Smith”) filed a workers’ compensation claim seeking compensation benefits from Delaware North Companies and its insurer (collectively “Delaware North”) for a full knee replacement.

At issue was whether the injury Smith sustained at work caused her to need knee replacement surgery. During a jury trial in the Circuit Court for Baltimore City, Smith presented the expert testimony of Dr. Kevin McGovern. To impeach Dr. McGovern’s credibility, Delaware North sought to admit a consent order that Dr. McGovern entered into with the Maryland Board of Physicians (“the Board”). Over a timely objection, the trial court admitted into evidence a portion of that consent order.

We ³⁷⁶ conclude it was legal error to do so. HO § 14-410 serves generally as a statutory bar to the admission of a Board of Physicians’ consent order into evidence in a civil or criminal action. FACTUAL AND PROCEDURAL BACKGROUND On September 7, 2012, Smith slipped on the floor in the course of her employment as a cook at Camden Yards. She landed on her left knee when she fell.

A few weeks after the fall, Smith sought medical attention from Dr. Thomas Whitten. An MRI of her left knee revealed that she had torn the posterior horn of the medial meniscus 1 and that she had medial 2 compartment arthritis. Smith initially sought conservative treatment from Dr. Whitten in the form of cortisone shots. Dr. Whitten also recommended that Smith undergo an arthroscopic procedure.

After Dr. Whitten’s retirement, Smith transferred her care to Dr. Kenneth Tepper. Dr. Tepper recommended that Smith undergo unicompartmental knee arthroplasty. 3 Next, Smith visited Dr. Mark Cohen at Maryland Orthropedics, P.A. on November 11, 2013. Dr. McGovern, another practitioner at Maryland Orthropedics, P.A. saw Smith on February 18, 2014. Both Dr. Cohen and Dr. McGovern recommended Smith undergo a full left knee replacement.

On January 28, 2014, Smith filed a workers’ compensation claim requesting an authorization for a total left knee replacement. The Workers’ Compensation Commission denied her ³⁷⁷ claim after it held a hearing on April 4, 2014. Smith filed a petition for judicial review of the Workers’ Compensation Commission’s denial of her claim in the Circuit Court for Baltimore City and requested a jury trial. On November 24, 2014, Smith filed a “Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D.” to prevent Delaware North from raising questions at trial about any professional disciplinary action taken against Dr. McGovern. 4 Smith also sought to exclude portions of Dr. McGovern’s de bene esse deposition where defense counsel inquired into the disciplinary charges against Dr. McGovern. 5 She argued in her motion that ³⁷⁸ HO § 14-410 “expressly prohibits the introduction of such evidence in any collateral proceeding such as an appeal from a workers’ compensation commission claim.” 6 ³⁷⁹ On December 11, 2014, a jury trial was held in the Circuit Court for Baltimore City to answer the question of whether Smith’s knee replacement surgery was causally related to the accidental injury she suffered on September 7, 2012.

Prior to jury selection, the trial judge heard the parties’ arguments regarding Smith’s “Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D.” Smith argued that the admission of the consent order would violate HO § 14-410(a). The trial judge disagreed and stated, “I do agree with [djefense counsel that the stating (sic) of the consent order in effect is a stipulation of the parties that it’s okay to be used.” 7 She explained, “it’s an exception to the medical review committee privilege 8 as we’re referring to it.” Once the trial judge determined that the consent order was admissible, she provided Smith with an opportunity to argue whether the admission of the consent order was “more substantially prejudicial than probative of the issue of whether Dr. McGovern is telling us facts that are relevant to Ms. Smith’s case.” 9 Smith noted that even though Dr. McGovern was on probation pursuant to the consent order, his license to practice medicine was still in good standing and that Dr. ³⁸⁰ McGovern was still qualified to treat patients and offer expert testimony. Smith then argued that questioning on the disciplinary action would confuse and mislead the jury about the merits of the case, which involved the narrow issue of whether Smith’s workplace injury caused her need for knee replacement surgery. Therefore, Smith contended that the probative value of the consent order and disciplinary action was substantially outweighed by their prejudicial effect.

The trial judge ruled that [i]t appears to this [cjourt that the probative value of going into the disciplinary action against Dr. McGovern is outweighed by the prejudicial effect of the possible confusion of the jury. However, there’s no question in my mind that the question about the status of his license, that should be asked. Now, how far that question is allowed to go will depend on the answers Dr. McGovern gives. If I understand from the written submissions, Dr. McGovern’s license is authorized only in the case that he obey the terms of the consent order.

Thus, the trial judge granted, in part, Smith’s “Motion In Limine to Exclude Certain Testimony from Kevin McGovern, M.D.” and excluded the portions of Dr. McGovern’s de bene esse deposition that referenced the disciplinary charges against him. She, however, allowed “the Defense to introduce the consent order showing that there are restrictions on [Dr. McGovern’s] license.” In response, Smith asked that the admission of the consent order “be limited to the conclusions of law and the order that sets forth the conditions in [Dr. McGovern’s] probation” rather than the whole consent order which details the facts of each disciplinary charge against Dr. McGovern. The trial judge agreed with Smith and limited the submission of the consent order to the last six pages, excluding the first seventeen pages of the order. The last six pages of the consent order begin with the Board’s “Conclusions of Law,” which state: Based on the foregoing Findings of Fact, the Board concludes as a matter of law that [Dr. McGovern’s] actions and ³⁸¹ inactions, as set forth above, constitute a failure to meet the appropriate standards for the delivery of quality medical care, in violation of H.O. § 14-404(a)(22); and a failure to keep adequate medical records, in violation of H.O. § 14-404(a)(40).

The charges under H.O. § 14-404(a)(23), of willfully submitting false statements to collect fees for which services are not provided, and H.O. § 14-404(a)(19), of grossly overutilizing health care services, are dismissed. These pages of the consent order also set forth the conditions of Dr. McGovern’s two year probation 10 and disclosed that the consent order “is considered a PUBLIC DOCUMENT^]” The page that contains Dr. McGovern’s signature is entitled, “CONSENT” and states: I, Kevin McGovern, M.D., acknowledge that I am represented by counsel and have consulted with counsel before entering into this Consent Order. By this Consent and for the purpose of resolving the issues raised by the Board, I agree and accept to be bound by the foregoing Consent Order and its conditions. I acknowledge the validity of this Consent Order as if entered into after the conclusion of a formal evidentiary hearing in which I would have had the right to counsel, to confront witnesses, to give testimony, to call witnesses on my own behalf, and to all other substantive and procedural protections provided by law.

I agree to forego my opportunity to challenge these allegations. I acknowledge the legal authority and jurisdiction of the Board to initiate these proceedings and to issue and enforce this Consent Order. I ³⁸² affirm that I am waiving my right to appeal any adverse ruling of the Board that I might have filed after any such hearing. I sign this Consent Order after having an opportunity to consult with counsel, voluntarily and without reservation, and I fully understand and comprehend the language, meaning and terms of the Consent Order.

After the court addressed the parties’ motions, a jury was selected and trial began. Smith was the first witness to testify. She testified on her own behalf as to the injuries she suffered and the recommendations of her doctors. Next, Smith presented expert witness testimony by playing a redacted version of Dr. McGovern’s video deposition for the jury. 11 Dr. McGovern testified as follows: [Plaintiffs Counsel]: Now, you said you reviewed Dr. Cohen’s notes prior to your examination of Ms. Smith; is that correct? [Dr. McGovern]: Yes. [Plaintiffs Counsel]: Did you also look at his impression and his diagnosis of what her injury was? [Dr. McGovern]: Of course. [Plaintiffs Counsel]: And what was his diagnosis of her injury? [Dr. McGovern]: Aggravation of pre-existing medial compartment arthritis of her left knee related to the injury of September 7th, 2012. [Plaintiffs Counsel]: And what were the — what was shown by the x-rays? [Dr. McGovern]: That she had degenerative arthritis, severe in her left knee and moderate in her right knee. ³⁸³ [Plaintiffs Counsel]: And what were the results of the— when you reviewed the MRI, what were the results of Ms. Smith’s MRI? [Dr. McGovern]: Again, it showed degenerative changes and it showed a tear of her medial meniscus in her left knee ....

The menisci, the medial and lateral meniscus, the medial is on the inner part of the joint, the lateral is on the outer part of the joint. The medial part is the part of your knee that would touch your other knee if you put your knees together .... In this case[,] there’s a tear in the back portion of the meniscus, the posterior horn of the meniscus, which is the most common place for menisci to tear when they tear. The medial is the most common place for it to tear.

The lateral meniscus on the outside of the knee doesn’t tear nearly as frequently as does the one on the inner aspect of the knee. And most meniscal tears are caused by some sort of twisting injury to the knee. [Plaintiffs Counsel]: And Ms. Brenda Smith, she would— had both of those positive showings on the MRI as far as her left knee is concerned? [Dr. McGovern]: It showed that she had a tear of the posterior horn of her medial meniscus as well as arthritis in her knee. [Plaintiffs Counsel]: And as far as the arthritis is concerned, the MRI classified that as — how did the MRI classify that arthritis in the findings? Would it be correct to say that they said mild degenerative arthritic changes? [Dr. McGovern]: Well, it says in the lateral meniscus— meniscus it shows mild degenerative change without definite tear. And then in the medial meniscus it shows mild degeneration of the meniscus.

That is a little bit different than the arthritis itself. Again that’s what they’re talking about in the menisci being mildly degenerated. We know from the x-ray that she has fairly significant arthritis in her knee. [Plaintiffs Counsel]: Can someone have arthritis and not need a knee replacement? ³⁸⁴ [Dr. McGovern]: Oh absolutely. You’re looking at one right now, I have arthritis in one of my knees and I don’t need a knee replacement. [Plaintiffs Counsel]: And can arthritis in someone’s knee, can that be aggravated by a trauma? [Dr. McGovern]: Absolutely. [Plaintiffs Counsel]: And can you just explain to the ladies and gentlemen of the jury how a trauma could aggravate pre-existing arthritis? [Dr. McGovern]: Well, in a simplistic way, it’s possible that that could just be the straw that breaks the camel’s back.

At some point something happens that makes a joint become painful and symptomatic. In this particular case the mostly (sic) likely scenario is that she had arthritis in her knee. She had mild degeneration of her menisci, but when she had the fall she ended up tearing her medial meniscus [as] the result of the fall. That tear then aggravates and inflames the joint and causes the knee to become symptomatic, the arthritis to become symptomatic.

In a young healthy person with no arthritis you could go in there with the arthroscope and repair or remove the damaged meniscus, and the symptoms would go away. But unfortunately once the knee is arthritic, such as this one, then taking care of the meniscus, fixing it or removing it doesn’t solve the problem. Because the arthritis, once it becomes inflamed and symptomatic, stays symptomatic. So she would need something more significant than an arthroscopy for a torn meniscus, she would need a knee replacement to make her symptoms go away. [Plaintiffs Counsel]: And what is your diagnosis as to after, you know, reviewing the history, reviewing the MRIs, looking at your notes, Dr. Cohen’s notes, the x-rays, what is" your diagnosis of what the cause of her current condition is and what’s the cause of the need for the left knee replacement? [Dr. McGovern]: Well, it’s my belief that she had arthritis in her knee that wasn’t symptomatic before this injury.

That ³⁸⁵ this injury caused her to tear her medial meniscus which caused an aggravation of her arthritis and has caused her to remain symptomatic as a result of that. The only solution for her problem as a result of this injury of September 7th, 2012 now is to have the knee replacement. Nothing less than that will work. She’s already had conservative treatment.

She’s had Cortisone shots and gel injections into her knee of lubricants, called viscosupplementation, none of which have solved her problem and none of which probably would. And at this point a knee replacement is the only thing that would resolve her symptoms she now has as a result of her injury of September 2012. [Plaintiffs Counsel]: And that opinion is — diagnosis is based within a reasonable degree of medical probability? [Dr. McGovern]: Yes or I would haven’t (sic) said it. [Plaintiffs Counsel]: Did you have the opportunity to review a letter from Dr. Cohen dated January 21st, 2014? [Dr. McGovern]: Yes. [Plaintiffs Counsel]: In that letter did Dr. Cohen detail his opinion of Ms. Smith’s left knee condition in that letter? [Dr. McGovern]: It did. [Plaintiffs Counsel]: And what was his opinion? [Dr. McGovern]: The same as mine. [Plaintiffs Counsel]: Now, Ms. Smith was also diagnosed or I should say seen by a Dr. Becker; are you familiar with Dr. Becker? 12 [Dr. McGovern]: I know who Dr. Becker is, yes. [Plaintiffs Counsel]: And have you had a chance to look at his report and his addendum to his report? [Dr. McGovern]: I have. [Plaintiffs Counsel]: And what is your understanding of Dr. Becker’s role in this case? ³⁸⁶ [Dr. McGovern]: He performed an independent medical evaluation for the defense. [Plaintiffs Counsel]: And in reviewing his report is there anything significant that you disagree with? [Plaintiffs Counsel]: I think we disagree on the fact that she needs a knee replacement as a result of her injury. We agree that she has arthritis that was aggravated by the accident. On cross-examination, defense counsel asked, “can you state to a reasonable degree of professional certainty whether or not Ms. Smith would have needed a knee replacement even if she hadn’t slipped at work?” Dr. McGovern responded: No, I can’t say a hundred percent whether she would or wouldn’t have.

Again, she wasn’t symptomatic before this injury. There’s no way of knowing at what point she would or wouldn’t become symptomatic in the future. There’s a possibility she would have needed a knee replacement in the future with or without this injury, but I can’t say when it would be or for sure it would be. After Dr. McGovern’s deposition was played, the trial judge admitted into evidence Dr. McGovern’s curriculum vitae.

The defense presented the testimony of its expert witness, Dr. Larry Becker, via video deposition. Next, the court admitted into evidence Dr. Becker’s curriculum vitae and the Workers’ Compensation Commission’s Order resulting from the administrative proceeding. The trial judge also granted, over Smith’s objection, defense counsel’s request to move into evidence the last six pages of the Board’s consent order against Dr. McGovern. The parties rested and the trial judge gave the jury a series of instructions on the law.

After the jury instructions were given, the parties gave closing arguments. Defense counsel repeatedly mentioned the consent order in his closing argument: Bringing up this whole aggravation argument is what’s meant to confuse you, because they have to come up with something different than their expert .... [Smith’s Coun ³⁸⁷ sel] would indicate that there’s a piece of evidence [the consent order] that you’ll review in conjunction with their expert from Dr. McGovern. Please read that document and decide whether you believe anything that individual told you today, because when he was asked about his medical license, he said everything was just fine. He wasn’t truthful.

He’s on probation currently for ethical problems involved in workers’ compensation claims and he’s who they hired .... Dr. McGovern’s disciplinary action, being on probation, I mean, look at the fíne that was levied against him for unethical practices in workers’ compensation claims, but yet you should believe him? His entire testimony should be disregarded .... Was Dr. McGovern’s testimony consistent?

Nope. The consent order shows the inconsistencies in his testimony about the status of his medical license. Whether the witness’ testimony was contradicted by evidence. Once again, the order that you’re going to read from the Maryland Board of Physicians completely contradicts and puts into question his truthfulness, his honesty, his integrity, his ethics.

And they want you to believe this gentleman .... But just think in your own mind, would you or would you (sic) have a loved one go to a doctor for treatment that’s been disciplined by the Maryland Board of Physicians, that’s on probation for ethical problems, would you ever in your wildest dreams send your loved one to that provider? But yet they want you to rely upon him in this claim. It’s insulting to this entire system.

And for that reason I would ask on behalf of my client that you affirm the decision of the Commission, [and] check the box “No.” During rebuttal, Smith’s counsel attempted to respond to the statements made by defense counsel during his closing argument: Now, I realize that defense counsel has submitted into evidence a disciplinary action against Dr. McGovern and it’s — he is on probation .... So you think to yourself, you say, all right, Dr. McGovern got disciplined, he must have done something wrong, he is on probation. Well, when ³⁸⁸ people are on probation, when they are being disciplined .... You make sure you tow the line, you make sure you don’t get in trouble, because if you do, you’re going to have to — have the consequences, and Dr. McGovern is in that exact situation right now.

So he’s not making any mistakes. He’s following the book, he’s following the rules, because he is on probation and that’s something to take into consideration when you weigh his credibility. After jury deliberations, the jury returned and responded “no” to the question: “ ‘Is Brenda Smith’s knee replacement surgery causally related to the accidental injury suffered on September 7, 2012,’ yes or no?” Based on this jury verdict, the trial judge affirmed the decision of the Workers’ Compensation Commission. On December 23, 2014, Smith filed a “Motion for a New Trial.” Initially, on April 1, 2015, another trial judge granted Smith’s “Motion for a New Trial” but subsequently denied Smith’s motion in an “Order Correcting and Replacing the Court’s Prior Order” on June 24, 2015.

The court explained that HO § 14-410(a) “only applies to civil trials involving tort actions for medical malpractice and thus is inapplicable to this case.” Smith noted an appeal to the Court of Special Appeals on July 9, 2015. Pending the appeal and prior to any proceedings in that court, we granted certiorari, Smith v. Delaware North Companies, 446 Md. 290 , 132 A.3d 193 (2016), to answer the following questions: 1. Does the privilege set forth under § 14-410 of the Health Occupations Article (“H.O.”) bar the admission of evidence of a Board of Physicians [cjonsent [ojrder to impeach a physician who is offering testimony as an expert witness? 2. Was the privilege set forth under § 14-410 intended to be strictly limited to medical malpractice actions?

For the reasons stated below, we shall answer the first question in the affirmative and the second question in the negative. ³⁸⁹ STANDARD OF REVIEW The issues before this Court arise out of the trial court’s admission as evidence at trial of the consent order and its subsequent denial of Smith’s motion for new trial. The trial court based both of these rulings on its interpretation of HO § 14-410. Questions of statutory interpretation are purely legal inquires, which we review de novo. Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 26 , 915 A.2d 970, 984 (2007). “The cardinal rule of statutory interpretation is to give effect to the legislative purpose or policy.” State Dep’t of Assessments & Taxation v. Md.-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13 , 702 A.2d 690, 696 (1997).

In ascertaining legislative intent, “we look first to the language of the statute, giving it its natural and ordinary meaning.” Scriber v. State, 437 Md. 399, 410 , 86 A.3d 1260, 1266 (2014). Where the plain language of the statute is unambiguous, we end our inquiry as to legislative intent and “apply the statute as written, without resort to other rules of construction.” Griffin v. Lindsey, 444 Md. 278, 287 , 119 A.3d 753, 758 (2015). We have also stated that: We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations- that limit or extend its application. We [ ] do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.

Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. ³⁹⁰ Merchant v. State, 448 Md. 75, 94-95 , 136 A.3d 843, 855 (2016). Additionally, we presume that “ ‘the Legislature intends its enactments to operate ... such that no part of the statute is rendered meaningless or nugatory.’ ” Fisher v. Eastern Corr. Inst., 425 Md. 699, 707 , 43 A.3d 338, 343 (2012) (quoting Smack v. Dep’t of Health and Mental Hygiene, 378 Md. 298, 306 , 835 A.2d 1175, 1179 (2003)).

DISCUSSION HO § 14-410 governs the issue of whether the Board of Physician’s consent order entered into by Dr. McGovern was admissible as evidence in the instant case. The parties, however, offer competing interpretations of this statute. HO § 14-410 provides in pertinent part: (a) Except by the express stipulation and consent of all parties to a proceeding before the Board, a disciplinary panel, or any of its other investigatory bodies, in a civil or criminal action: (1) The proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies are not discoverable and are not admissible in evidence; and (2) Any order passed by the Board or disciplinary panel is not admissible in evidence. (b) This section does not apply to a civil action brought by a party to a proceeding before the Board or a disciplinary panel who claims to be aggrieved by the decision of the Board or the disciplinary panel.

The Statutory Privilege Pursuant to HO § 14-410 Smith argues that HO § 14-410(a) creates what she calls “the board proceedings privilege.” The language of HO § 14-410 is clear and unambiguous. As Smith argues, the plain language of HO § 14-410(a) prevents the admission or discovery of, “in a civil or criminal action!,] ... [t]he proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies” and the discovery of “[a]ny order passed by the Board or disciplinary panel.” Smith is also ³⁹¹ correct in her assertion that HO § 14-410 provides only two exceptions to this privilege. Pursuant to HO § 14-410(a): “The proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies” and the discovery of “[a]ny order passed by the Board or disciplinary panel” may be used “in a civil or criminal action” if all parties to the Board proceeding or disciplinary panel expressly stipulate and consent to its use. HO § 14-410(b) provides a second exception: these privileged materials may also be used in “a civil action brought by a party to a proceeding before the Board or a disciplinary panel who claims to be aggrieved by the decision of the Board or the disciplinary panel.” The trial court’s determination that “the [signing] of the consent order in effect is a stipulation of the parties that it’s okay to be used” does not fall under either statutory exception.

Both Dr. McGovern and the Board signed the consent order and these signatures indicate the parties’ agreement to the terms of the order. As the consent order notes, by agreeing to the terms of the order, a physician acknowledges that he freely agrees to be bound by the terms of the consent order and is aware that he waives certain rights by settling the charges against him without an evidentiary hearing. Nowhere on the page entitled “CONSENT” or anywhere else in the consent order does it state that agreeing to the terms of the consent order also indicates consent to its admissibility or discoverability “in a civil or criminal action.” HO § 14-410. The plain language of HO § 14-410 requires “the express stipulation and consent of all parties to a proceeding” before any “proceedings, records or files of the Board” or “[a]ny order passed by the Board or disciplinary panel” can be admitted “in a civil or criminal action.” It is clear that Dr. McGovern’s signature on the “CONSENT” page does not rise to the level of an “express stipulation and consent” to anything other than agreement to be bound by the terms of the consent order.

Thus, we conclude that the trial judge erred in ruling that the signing of the consent order constituted an exception to the privilege provided under HO § 14-410. ³⁹² As noted above, there are only two exceptions to the privilege set forth under HO § 14-410. Contrary to Delaware North’s characterization of the consent order as permissible impeachment evidence, HO § 14-410 does not contain an exception for the use of “proceedings, records or files of the Board” or “[a]ny order passed by the Board or disciplinary panel” to be used to impeach the credibility of a witness. To read in an impeachment exception would impermissibly “reflect an intent not evidenced in the plain and unambiguous language of the statute” and “construe the statute with forced or subtle interpretations that ... extend its application.” Kushell v. Dep't of Nat. Res., 385 Md. 563, 576-77 , 870 A.2d 186, 193 (2005) (quoting Price v. State, 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003)).

Therefore, we hold that the plain language of HO § 14-410 bars the admission of the consent order to impeach the credibility of a physician who is offering testimony as an expert witness. 13 The Public Nature of the Consent Order Delaware North’s contention that the consent order’s classification as a public document removes it from the ambit of HO § 14-410 is also without merit. As previously discussed, HO § 14-410 provides two statutory exceptions. Neither of these exceptions allows parties to a disciplinary proceeding of the Board to waive the protections provided under HO § 14-410 by signing a document containing a public document disclosure. Although HO § 14-410(a) allows privileged materials to be used if all parties to the Board proceeding or disciplinary panel expressly stipulate and consent to its use, ³⁹³ contrary to Delaware North’s belief, agreeing that a consent order is a public document does not amount to an express stipulation and consent as to the order’s use at trial.

To adopt Delaware North’s view would invite a “forced or subtle interpretation” of the exception provided in HO § 14-410(a). Fangman v. Genuine Title, LLC, 447 Md. 681, 691 , 136 A.3d 772, 778 (2016). In Certain Underwriters at Lloyd’s, London v. Cohen, the Fourth Circuit addressed the same argument that Delaware North puts forth: agreeing to enter into a consent order which is a public document 14 renders the order and the underlying ³⁹⁴ circumstances of the order admissible in a court proceeding. 15 ³⁹⁵ 785 F.3d at 893-94. Certain Underwriters at Lloyd’s, London involved a physician who had entered into a consent order with the Board. 785 F.3d at 888-89.

In the consent order, the physician agreed to a three-month suspension followed by a five-year period of probation. Id. The consent order also contained a provision providing that the consent order “shall be a public document.” Certain Underwriters at Lloyd’s, London, 785 F.3d at 893. The physician’s disability insurer then brought suit against the physician for misrepresentations he made on his insurance application regarding the disciplinary actions he faced.

The Fourth Circuit reversed the magistrate judge’s decision to admit the physician’s consent order at trial. It explained that based on the plain language of HO § 14-410, “solely by the ‘express stipulation and consent of all parties to a proceeding before the Board’ can a Board order be admitted into evidence in a civil proceeding like this one.” Id. It further concluded that the fact “[t]he Consent Order states on its face that it ‘shall be a public document’ under the Maryland Public Information Act” does not “somehow render it admissible in a judicial proceeding.” Id. The Fourth Circuit elaborated: [The Maryland Public Information Act] “allows generally for the inspection and receipt of copies of public records.” Waterkeeper Alliance, Inc. v. Md. Dep’t of Agric., 439 Md. 262 , [268,] 96 A.3d 105, 108 (2014).

Each disciplinary order is also publicly available on the Internet. See Md. Code Ann., Health Occ. §§ 14-411.1 (b)-(d)(2) (requiring the Board to “create and maintain a public individual profile” on each licensed physician, available to the public on the Internet, which includes “[a] description of any disciplinary action taken by the Board ... within the most recent 10-year period” and “includes a copy of the public order”). But nothing in either the Public Information Act or Title 14 of ³⁹⁶ the Health Occupations Article requires that public documents be admissible in judicial proceedings. Certain Underwriters at Lloyd’s, London, 785 F.3d at 893-94 (footnote omitted).

This logic is similarly applicable to the case sub judice. “That a document is public does not remove it from the purview of the rules of evidence, or a statute explicitly governing its admissibility.” Certain Underwriters at