Solomon v. Board of Physician Quality Assurance

KRAUSER, Judge. Appellant, Barbara Solomon, M.D., filed a complaint in the Circuit Court for Baltimore County to quash a subpoena duces tecum issued by appellee, the Board of Physician Quality Assurance (“the Board”), to obtain from appellant her patient ⁴⁴⁹ appointment schedule for the last three months of 1998. 1 Earlier, the Board had completed an investigation of a complaint filed by one of Dr. Solomon’s patients. The patient claimed that she had not been adequately advised of the diagnostic procedures and methods of treatment employed by the doctor in her alternative medicine practice. After advising appellant to use appropriate disclosure and consent forms and that it would perform a follow-up review in six months, the Board closed the case.

Six months later, it issued the subpoena in question as part of an effort to determine whether appellant had complied with its directive. Appellee then filed a motion to dismiss the complaint to quash its subpoena. That motion was granted, with prejudice, by the circuit court. Appellant then noted this appeal.

Dr. Solomon contends that the circuit court erred in dismissing her complaint because the Board had no lawful authority to issue a subpoena after closing the case that had prompted the investigation of her practice. Appellant further maintains that the Board may not lawfully issue a subpoena in the absence of a pending written complaint or renew an investigation more than eighteen months after receipt of a complaint. Although we are concerned about the scope of the subpoena in question, as it appears that it may have been intended to obtain a range of information that goes beyond the question of “informed consent,” 2 we have no evidence before us — only appellant’s bald and premature allegation of a “fishing expedition” — that the Board has exceeded its lawful authority. We therefore shall affirm the decision of the circuit court for the reasons set forth below.

We caution the Board, ⁴⁵⁰ however, that if its investigation proceeds beyond the scope of the issues raised in the initial complaint, without any reasonable justification, we may take a different view of this matter. BACKGROUND In February of 1997, the Board received a complaint from a patient of Dr. Solomon’s claiming, among other things, that she had not been adequately informed by appellant of the diagnostic procedures and methods of treatment that appellant employed. 3 After conducting a preliminary investigation of that complaint, which included visiting appellant’s office and consulting with the Food and Drug Administration on appellant’s use of the Computonix System for diagnostic testing, a subcommittee of the Board recommended that no formal charges be filed against her. On August 26, 1998, the Board sent appellant an advisory letter, in accordance with COMAR 10.32.02.03 C(l)(b), 4 notifying her that the complaining patient’s case was closed. That letter also advised her of the need to give each patient “complete disclosure including risks” about “experimental techniques” she intended to use and that “a patient disclosure form along with a signed and dated consent form should be made part of the patient’s medical records.” It then informed her: ⁴⁵¹ Six months from the date of this letter the Board will be conducting a re-review of your practice.

Board staff will obtain patient records, initiated after the date of this letter, in which experimental techniques were implemented. Each record will be reviewed regarding issues of standard of care to include a review of documentation of signed diagnoses and treatment disclosure forms and informed consent forms for each patient. Approximately six months later, on February 19, 1999, in accordance with Maryland Code (1981, 1994 Repl.Vol., 1998 Supp.) § 14 — 401(c)(2)(i) of the Health Occupations Article (“HO”), 5 the Board sent a letter to the Medical and Chirurgical Faculty (“Med Chi”), requesting that it conduct a review of appellant’s practice, including a review of her patient consent and disclosure forms. The Board then issued the subpoena duces tecum, which is the subject of this appeal, requesting her “complete appointment schedule for October, November and December 1998, along with a list of all hospitalized patients during this period, reasons for and date of hospitalization, and the name of the hospital, which materials are in your custody, possession or control.” The Board later limited the subpoena’s scope to include only her appointment schedule for October, November, and December of 1998.

Refusing to surrender the records requested in the absence of an open complaint against her, appellant filed an action in the Circuit Court for Baltimore County to quash the subpoena. In response, appellee filed a motion to dismiss that action, asserting that the Board is authorized by law to proceed as it had. Appellant then filed a motion to strike the motion to dismiss. ⁴⁵² On July 26, 1999, a hearing on the motion to dismiss was held in the Circuit Court for Baltimore County. At the conclusion of that hearing the circuit court dismissed appellant’s complaint with prejudice, declaring that appellant has “no right to quash the administrative investigatory subpoena that was issued in this case.” On August 2, 1999, appellant noted this appeal.

The Maryland Medical Practice Act Before addressing the issues presented by this appeal, we believe it would be helpful to review briefly the procedures the Board must follow in investigating complaints against physicians. These procedures are governed by the Maryland Medical Practice Act (the “Act”) (Maryland Code, title 14 of the Health Occupations Article), and regulations adopted by the Board that are codified in COMAR 10.32.02. “When an allegation that may constitute grounds for disciplinary action against a physician comes to the Board’s attention, the Board is required to conduct a preliminary investigation.” Board of Physician Quality Assurance v. Levitsky, 353 Md. 188, 190-91 , 725 A.2d 1027, 1028 (1999) (citing HO § 14-401(a)). Upon completing that preliminary investigation, the Board may, among other things, issue an advisory letter that “informs, educates, or admonishes a health care provider in regard to the practice of medicine under the Medical Practice Act.” See COMAR 10.32.02.02 B(4)(defining advisory letter); 10.32.02.03 C(l)(b). 6 It may also refer the allegation to Med Chi for further investigation. HO § 14 — 401(c)(l)(i).

Med Chi then must “report to the Board on its investigation within 90 days after the referral.” HO § 14-401(e)(l)(i). Med Chi’s report “shall contain the information and recommendations necessary for appropriate action by the Board.” HO § 14-401(e)(2). The Board is then authorized to “take the action, including further investigation, that it finds appropriate under this title.” HO § 14-401(e)(3) (emphasis added). If warranted, the Board may charge the physician with a violation of ⁴⁵³ the Act.

See COMAR 10.32.02.03 C(1)(e). 7 Before taking any disciplinary action, however, the Board must give the physician an opportunity for a hearing before an administrative law judge. HO § 14-405(a)-(b). The physician is entitled to be represented by counsel, and all factual findings must be supported by clear and convincing evidence. HO § 14 — 405(b)— (c).

At the conclusion of the hearing, the administrative law judge “shall refer proposed factual findings to the Board for the Board’s disposition.” HO § 14-405(e). If a physician disagrees with the proposed decision, he or she has a right to an exceptions hearing before the Board. See COMAR 10.32.02.03 F. If a majority of the Board’s “full authorized membership” finds grounds for disciplinary action, the Board is authorized to impose any of the sanctions set forth in HO § 14-404(a). 8 DISCUSSION I The principal issue in this appeal is whether the Board has the right to investigate the quality of medical care appellant is providing her patients as a result of concerns that arose in the course of investigating a patient complaint that the Board had formally closed. Appellant argues that, once the Board had closed that complaint, it lacked the authority to “re-review” appellant’s practice, to investigate any concerns arising out of the initial case, and to issue subpoenas pursuant to that investigation.

There is no dispute that the Board has a right to investigate an alleged violation of the Act upon the receipt of a written complaint, as it did in the instant case. [¶] § 14 —