Solomon v. State Board of Physician Quality Assurance

BARBERA, Judge. In this, her second appeal before this Court, appellant, Barbara A. Solomon, M.D., challenges the decision of the Board of Physician Quality Assurance (“the Board”) to revoke her medical license because she “fail[edj to cooperate with a lawful investigation,” pursuant to Maryland Code (1981, 1994 Repl.Vol., 1999 Supp.), § 14-404(a)(33) of the Health Occupations Article (“HO”). In December 1999, the Board issued a subpoena duces tecum commanding that Dr. Solomon produce the medical records of 19 of her patients. Dr. Solomon refused to comply with the subpoena on the grounds that she was not under investigation by the Board for misconduct, the subpoena was overbroad, and her compliance with the subpoena would violate her patients’ privacy rights.

One year after issuing the subpoena, the Board revoked Dr. Solomon’s medical license. Dr. Solomon filed a petition for judicial review in the Circuit Court for Baltimore County, which affirmed the Board’s decision. On appeal, Dr. Solomon presents eight questions, which we have distilled into three: I. Was Dr. Solomon entitled to resist the Board’s subpoena on the grounds that: (1) no investigation was underway at the time; (2) the subpoena was over-broad; and (3) it violated the Confidentiality of Medical Records Act, HIPAA, and the physician-patient privilege?

II

Did the administrative law judge err or abuse her discretion in denying Dr. Solomon’s request to call a number of witnesses to testify on her behalf?

III

Did the Board abuse its discretion by subjecting Dr. Solomon to “excessive punishment,” when it revoked her license to practice medicine? For the reasons that follow, we affirm the judgment of the circuit court. ⁶⁹³ FACTS AND PROCEEDINGS Most of the relevant underlying facts are contained in the opinion of this Court, Solomon v. Board of Physician Quality Assurance, 132 Md.App. 447 , 752 A.2d 1217 , cert. denied, 360 Md. 275 , 757 A.2d 811 (2000) (“Solomon /”). We therefore borrow liberally from the recitation of facts in that opinion. In February 1997, the Board received a complaint from a patient of Dr. Solomon claiming, among other things, that she had not been adequately informed by Dr. Solomon of the diagnostic procedures and methods of treatment employed.

After conducting a preliminary investigation of that complaint, which included visiting Dr. Solomon’s office and consulting with the Food and Drug Administration about Dr. Solomon’s use of the Computonix System for diagnostic testing, a subcommittee of the Board recommended that no formal charges be filed against Dr. Solomon. On August 26, 1998, the Board sent Dr. Solomon an advisory letter notifying her that the complaining patient’s case was closed. The letter nevertheless advised Dr. Solomon 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.” The letter also included the following notice: 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. On February 19, 1999, the Board sent a letter to the Medical and Chirurgical Faculty, requesting that it conduct a review of Dr. Solomon’s practice, including a review of her patient consent and disclosure forms. Several weeks later, the Board issued a subpoena duces tecum to Dr. Solomon, ⁶⁹⁴ commanding her to produce 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 Dr. Solomon’s appointment schedule for October, November, and December 1998. Refusing to surrender the records requested in the absence of an open complaint against her, Dr. Solomon filed an action in the Circuit Court for Baltimore County to quash the subpoena.

In response, the Board filed a motion to dismiss that action, asserting that the Medical Practice Act authorized it to proceed as it had done. Dr. Solomon responded with a motion to strike the Board’s motion to dismiss. On July 26, 1999, a hearing on the motion to dismiss was held in the Circuit Court for Baltimore County. At the conclusion of the hearing, the court dismissed Dr. Solomon’s complaint with prejudice, declaring that she has “no right to quash the administrative investigatory subpoena that was issued in this case.” 1 Dr. Solomon noted an appeal to this Court, Solomon I. Then, on November 22,1999, she turned over the appointment logs to the Board.

On December 2, 1999, the Board issued another subpoena. This subpoena commanded Dr. Solomon to produce within 21 business days “the entire medical chart, including, but not limited to, the billing records” of 19 patients randomly selected from the appointment logs. Dr. Solomon refused to comply with the subpoena, asserting that disclosure of her patients’ medical records without consent violated their privacy. 2 ⁶⁹⁵ On May 25, 2000, approximately six months after the December 2nd subpoena issued, the Board charged Dr. Solomon with unprofessional conduct in the practice of medicine and failure to cooperate with a lawful Board investigation. Several weeks later, we filed Solomon I, affirming the circuit court’s denial of Dr. Solomon’s action to quash the initial 1999 subpoena.

An evidentiary hearing on the Board’s charges was conducted by an Administrative Law Judge (“ALJ”) in November 2000. The following month, the ALJ issued her Proposed Decision. The ALJ made extensive fact findings, from which she concluded that Dr. Solomon had “repeatedly failed to cooperate with the Board’s lawful investigation,” and that this failure constituted “unprofessional conduct in the practice of medicine.” The ALJ proposed that Dr. Solomon’s license be revoked. Dr. Solomon filed exceptions with the Board.

After a hearing on March 28, 2001, the Board issued its final order, adopting the ALJ’s findings of fact and conclusions save for the ALJ’s conclusion that Dr. Solomon had engaged in unprofessional conduct in the practice of medicine. The Board agreed with the ALJ’s proposed sanction, adding: Dr. Solomon’s license will be revoked. The Board needs to review Dr. Solomon’s medical records before it can determine whether she is practicing competently and within the standard of care. Without medical records, which document the medical care she is rendering, the Board will never know this, and will be completely unable to fulfill its mission to protect the public.

As of the date of this Final Order, Dr. Solomon has not turned over the nineteen (19) patient records for which the Board issued a subpoena on Decem ⁶⁹⁶ ber 2,1999; furthermore, she has testified that she does not intend to comply with that subpoena. Dr. Solomon filed a petition for judicial review of the Board’s order in the Circuit Court for Baltimore County. After hearing arguments from counsel, the court affirmed the Board’s decision. Prom the entry of judgment on that order, Dr. Solomon filed this timely appeal. 3 DISCUSSION Standard of Review The standard to be applied in reviewing a decision of an administrative agency was recently restated in Finucan v. State Board of Physician Quality Assurance, 151 Md.App. 399 , 827 A.2d 176 , cert. granted, 377 Md. 275 , 833 A.2d 31 (2003): “Appellate review of an administrative agency’s decision is narrow.” Id. at 411 , 827 A.2d 176 .

We are “ ‘ “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.” ’ ” Id. (citation omitted). “ ‘[T]he expertise of the agency in its own field should be respected.’ ” Id. (citation omitted). Therefore, “ ‘an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.’ ” Id.

(citation omitted). When reviewing the ALJ’s legal conclusions, however, “ ‘the court “must determine whether the agency interpreted and applied the correct principles of law governing the ⁶⁹⁷ case and no deference is given to a decision based solely on an error of law.’ ” ” McKay v. Department of Pub. Safety & Corr. Sens., 150 Md.App. 182, 193 , 819 A.2d 1088 , cert. denied, 376 Md. 50 , 827 A.2d 113 (2003) (citations omitted).

I. 15] We can quickly dispose of one contention raised by Dr. Solomon. She argues that the circuit court “did not apply the correct standard for review to its analysis and determination of the issues of law.” It is settled, however, that “in an administrative appeal, it makes no difference whether or not the trial judge applied the correct standard for review.” Gabaldoni v. Board of Physician Quality Assurance, 141 Md.App. 259, 273 , 785 A.2d 771 (2001). This is so because “[o]ur role in reviewing the decision of an administrative agency is precisely the same as that of the circuit court. We, therefore, do not evaluate the findings of fact and conclusions of law made by the circuit court; instead, ‘we review the administrative decision itself.’ ” Id.

(citations omitted); accord Mayberry v. Board of Educ. of Anne Arundel County, 131 Md.App. 686, 700-01 , 750 A.2d 677 (2000).

II

Dr. Solomon lodges several challenges to the Board’s conclusion that she violated [¶] § 14-404(a)(33). She advances six grounds for why the Board should not have found her to have failed to cooperate -with a lawful investigation solely because of her noncompliance with the subpoena. Dr. Solomon argues, first, that she was not required to surrender the requested records in the absence of an ongoing “investigation regarding licensure, certification, or discipline of a health professional or the improper practice of a health profession,” pursuant to Maryland Code (1982, 1994 Repl.Vol., 1999 Supp.), § 4-306(b)(2)(i), (ii) of the Health General Article (“HG”). This section of the Confidentiality of Medical Records Act (“CMRA” or “the Act”), permits, in certain circum ⁶⁹⁸ stances, disclosure of patient records without the patient’s authorization.

HG 4 — 306(b)(2) provides: (b) Permitted disclosures. — A health care provider shall disclose a medical record without the authorization of a person in interest: * * * (2) Subject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in § 4-307 of this subtitle, to health professional licensing and disciplinary boards, in accordance with a subpoena for medical records for the sole purpose of an investigation regarding: (i) Licensure, certification, or discipline of a health professional; or (ii) The improper practice of a health profession. Dr. Solomon asserts that the Board’s December 2nd subpoena “was not for any of the permitted statutory purposes.” She reasons that there was no ongoing investigation; consequently, she properly resisted the subpoena. We rejected a very similar argument made by Dr. Solomon in Solomon I. In that appeal, Dr. Solomon contended “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.” 132 Md.App. at 449 , 752 A.2d 1217 . Dr. Solomon further maintained “that the Board may not lawfully issue a subpoena in the absence of a pending written complaint.” Id.

To these arguments, Judge Krauser, writing for this Court, responded: Appellant’s position that the closing of the initial complaint against her precludes the Board from investigating any concerns that may have arisen as a result of the investigation of that complaint finds no support in law or logic. Nowhere does the Act suggest, either expressly or impliedly, that the closing of a specific complaint terminates ⁶⁹⁹ the Board’s authority to perform a follow-up investigation or to take remedial action. Moreover, as the Court of Appeals held in Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1999), “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected.” (Citations omitted.) Therefore, we must accord the Board’s interpretation of the Maryland Medical Practice Act considerable weight and deference.

Finally, appellant’s interpretation of the Board’s authority, if accepted, would strip the Board of its ability to monitor deficiencies in medical practice that have not yet arisen to the level of a violation of the standard of care and leave the Board with no means for determining whether corrective action requested by the Board has been taken by a physician. Such a narrow reading would thwart the Legislature’s intent to provide the Board with sufficient authority to assure a high standard of medical care from physicians licensed in this State. Id. at 455, 752 A.2d 1217 . Our analysis in Solomon I is equally applicable to the contention Dr. Solomon now presents.

The CMRA, on which Dr. Solomon relies, neither expressly nor impliedly dictates that the closing of a specific complaint terminates the Board’s authority to conduct a follow-up investigation. Moreover, the re-review of Dr. Solomon’s practice was, in any case, an “investigation,” as contemplated by HG § 4-306(b)(2). Dr. Solomon also argues that the Board’s December 2nd subpoena exceeded the scope of the original patient complaint filed in February 1997. Dr. Solomon attempts to capitalize upon the language found in the second paragraph of Solomon I, in which we said: Although we are concerned about the scope of the subpoena in question, as it appears that it may have been intended to ⁷⁰⁰ obtain a range of information that goes beyond the question of “informed consent”[], 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. 182 Md.App. at 449, 752 A.2d 1217 .

Our concern expressed in the above passage of Solomon I stemmed from the absence of the patient complaint in the record then on appeal. The record before us in the current appeal contains a copy of the patient complaint, which “reported concerns regarding the standard of care [employed by Dr. Solomon], the removal of dental amalgam filings, informed consent, the use of experimental procedures, and unprofessional billing practices.” Given the scope of the complaint, the concern we raised in Solomon I has disappeared. Neither are we concerned about the scope of the December 2nd subpoena. In Banach v. State of Maryland Comm’n on Human Relations, 277 Md. 502 , 356 A.2d 242 (1976), the Court of Appeals set forth a three-part test for determining the validity of a subpoena issued by an administrative agency.

Adopting the test first articulated in Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186, 208 , 66 S.Ct. 494 , 90 L.Ed. 614 (1946), the Court in Banach stated that to determine a subpoena’s validity, a reviewing court must ask “[w]hether the inquiry is authorized by statute, the information sought is relevant to the inquiry, and the demand is not too indefinite or overbroad.” 277 Md. at 506 , 356 A.2d 242 ; accord Scheek v. Maryland Sec. Comm’r, 101 Md.App. 390, 393 , 646 A.2d 1092 , cert. denied, 337 Md. 43 , 650 A.2d 726 (1994). It is the last part of the test that Dr. Solomon complains was not satisfied by this subpoena. The subpoena was not overbroad. Indeed, the reason for the Board’s interest in Dr. Solomon’s patients’ records is evident: Review of a random sampling of those records would undoubtedly yield information regarding the quality of medical care Dr. Solomon provided, including diagnostic and treatment information.

Review of the records would also elicit informa ⁷⁰¹ tion about Dr. Solomon’s coding and billing practices. Limiting the Board’s examination to whether an “informed consent” form was included in the patients’ files, as Dr. Solomon suggests, would not provide the information necessary to assist the Board in determining if Dr. Solomon is rendering appropriate medical care. Dr. Solomon argues that the Board’s December 2nd subpoena was “improperly issued, invalid, and unenforceable” because it lacked the required patient certification, pursuant to HG § 4-306(b)(6)(i). That subsection provides: (b) Permitted disclosures. — A health care provider shall disclose a medical record without the authorization of a person in interest: (6)(i) Subject to the additional limitations for a medical record developed primarily in connection with the provision of mental health services in § 4-307 of this subtitle and except as otherwise provided in items (2), (7), and (8) of this subsection, in accordance with compulsory process, if the subpoena, summons, warrant, or court order contains a certification that: 1.

A copy of the