State Board of Physicians v. Rudman

KRAUSER, Chief Judge. The Maryland State Board of Physicians (the “Board”), appellant, revoked the medical license of Michael S. Rudman, M.D., appellee, after he entered an Alford plea to second-degree assault, which, given the nature and circumstances of the assault, the Board determined to be a crime of moral turpitude. The Circuit Court for Frederick County vacated the Board’s revocation order, declaring that the Board erred in making that finding because, in its view, the facts of the ⁵ assault were in dispute and thus required a hearing. This appeal followed.

The Board presents four issues for our consideration. Renumbered and only slightly rephrased to facilitate review, they are: I. Whether an Alford plea is a guilty plea within the meaning of section 14-404(b) of the Health-General Article of the Maryland Code (2005 RepLVol.); II. Whether a probation before judgment under section 6-220 of the Criminal Procedures Article of the Maryland Code (2008 RepLVol.) nullifies the guilty plea on which the probation was based; III. Whether the crime of second-degree assault constitutes a crime of moral turpitude for professional disciplinary purposes when the perpetrator is a physician and the assault was the repeated rubbing of his erect penis against the back of a female patient without her consent while providing medical treatment in his medical office; and IV.

Whether, in a case arising under section 14-404(b) of the Health Occupations Article of the Maryland Code (2005 RepLVol.), the Board must grant a request for an evidentiary hearing by a respondent who proffers facts and conclusions contrary to the facts set forth in a certified court record. Background Licensed to practice medicine in Maryland, Rudman, for the past thirty years, has practiced medicine in the Middletown area of Frederick County. In July 2005, Ms. E., a patient of Rudman’s, filed a complaint with the Board that Rudman had inappropriately touched her breast, vaginal area, and lower stomach. As a result of this complaint, the Board began an investigation and notified the Frederick County Sheriffs Office, as required by section 14-411(k) of the Health Occupations Article of the Maryland Code (2005 RepLVol.). 1 The ⁶ investigation led to another patient, Ms. P. She informed the Board that Rudman had inappropriately rubbed his body against her back with what she believed to be his erect penis. 2 A formal complaint was thereafter filed with the Board by Ms. P concerning this conduct.

In December 2005, a criminal information was filed in the Circuit Court for Frederick County, charging Rudman with a total of three counts of second-degree assault and three counts of fourth-degree sexual offense with respect to both Ms. E. and Ms. P. After several newspaper articles appeared asking anyone with information “on the case” to contact the sheriffs office, the Board was notified by that office that nine different people had come forward with complaints about Rudman. Rudman was accused by those individuals of, among other things, “rubbing female patients’ breasts, failing to provide female patients privacy when disrobing, touching a female patient’s vaginal area on multiple occasions, pressing and/or rubbing his genital area against female patients, and/or initiating undressing of female patients.” Determining that there was probable cause to believe that Rudman was “guilty of immoral or unprofessional conduct in the practice of medicine,” in violation of section 14—404(a)(3) of the Health Occupations Article and that this conduct constituted “extraordinary circumstances,” the Board, in a written order dated February 9, 2006, suspended Rudman’s license to practice medicine pursuant to section 10—226(c)(2) of the State Government Article (2004 Repl.Vol.). 3 ⁷ Following a subsequent hearing, on February 22, 2006, the Board vacated the suspension of Rudman’s medical license subject to the following conditions, which, if violated, would result in a re-imposition of the suspension. Among other things, those conditions required that (1) Dr. Rudman shall not practice any form of massage on any of his patients; and (2) Dr. Rudman shall, for each patient encounter with each and every female patient, have a female chaperone in the room, and in such position as the chaperone is able to directly observe the activities, during the entire consultation, examination and treatment. The identity of the chaperone must be documented in the medical record of each patient.

Rudman entered an Alford plea ' 4 to one count of second-degree assault with respect to Ms. P. after the State nolle prossed all of the other charges. That plea was preceded by the following colloquy: THE COURT: Do you understand you’re entering a plea of guilty—an Alfred [sic] plea of guilty, but a plea of guilty nevertheless, to Count One, second-degree assault? [Rudman]: Yes. THE COURT: The event that you’re pleading guilty to is alleged to have occurred on February 5th of 2005. Do you understand that? [Rudman]: Yes. ⁸ ;[: * :]: THE COURT: Now, you’re represented by Mr. Winik and Mr. Varner, is that correct? [Rudman]: Yes.

Q. Have you fully discussed all these matters with both your counsel? A. Yes, I have, sir. Q. Have they explained to you the charges pending against you today? A. Yes.

Q. Have they explained to you the plea agreement? A. Yes, sir. Q. And do you understand that this is a plea of guilty, but a special type of plea of guilty known as an Alfred [sic] plea. Do you understand that?

A. Yes, sir. Q. Have they explained that to you? A. Yes, sir. Q. And do you understand the charges?

A. Yes, sir. Q. The plea agreement? A. Yes, sir. Q. And what an Alfred [sic] plea is?

A. Yes, sir. Q. Mr. Winik, have you explained the charges to Dr. Rudman? [Winik]: I have. Q. And the plea agreement? [Winik]: Yes. Q. And what an Alfred plea [sic] is? [Winik]: Indeed I have.

Q. Do you feel that he understands the charges? [Winik]: Yes. Q. And the plea agreement? ⁹ [Winik]: Yes. Q. And what an Alfred [sic] plea is? [Winik]: I do. Q. Okay.

Do you feel that his plea today is his free and voluntary act? [Winik]: Yes. THE COURT: Thank you. Dr. Rudman, Count One alleges that you on or about February 5th, 2005, in Frederick County, Maryland, did unlawfully assault [Ms. P.] in the second degree. Do you understand that charge? [Rudman]: Yes, sir.

Q. Do you understand that you’re entering a plea of guilty, an Alfred [sic] plea of guilty, but a plea of guilty nevertheless to that charge? [Rudman]: 5 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 then an Alfred [sic] plea, you are not admitting to me that you did the charge? [Rudman]: Yes, sir. Q. 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? [Rudman]: Yes, sir.

Q. 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? [Rudman]: Yes, sir. ¹⁰ THE COURT: Now, I’ve already told you what an Alfred [sic] plea is. Do you understand that? And do you understand that this is a plea of guilty, is that correct? [Rudman]: Yes, sir.

THE COURT: But you understand that on an Alfred [sic] plea, again, you’re not admitting to this charge, but the State does have sufficient evidence, if believed by á jury or by a judge, to prove the charge beyond a reasonable doubt. Do you understand that? [Rudman]: Yes, sir. * * * THE COURT: Do you wish to plead guilty, an Alfred [sic] plea of guilty, but a plea of guilty nevertheless, to Count One, second-degree assault? [Rudman]: Yes, Your Honor. At the conclusion of the Alford colloquy, the State made the following proffer as to what the evidence would have shown had the case proceeded to trial: Your Honor, had the State proceeded to trial, we would have called Deputy Tracey McCutcheon from the Frederick County Sheriffs Office, who would testify that she interviewed [Ms. P.] regarding her contact with the defendant, who both Ms.* McCutcheon and [Ms. P.] would identify as the same individual seated before you today, Dr. Michael Rudman. Ms. [P.] 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. Ms. [P.] would tell the Court that her vitals ¹¹ were taken by the nurse on duty, but that 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, Ms. [P.] 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 in Ms. [P.’s] hair, and Ms. [P.] 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. Ms. [P.] asked her daughter to leave the room, and at that time Dr. Rudman asked Ms. [P.] 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 that 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 her daughter could re-enter the examination room. When she—when Ms. [P.] 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 ¹² finished the prescription. He never stood again. She left the office as quickly as possible.

Her husband, Tony [P.], would testify that approximately 15 minutes after Ms. [P.] left her appointment, he saw her at a rental unit that they own in Frederick City. Ms. [P.] tried to tell her husband what happened, but was crying extremely hard. And Mr. [P.] would testify that he thought she had received some extremely bad news from the doctor’s visit. It was about 10 minutes before Ms. [P.] could calm down and explain to him what had occurred on that day.

Ms. [P.] would testify that she changed doctors with her insurance company the next day. All these events occurred in Frederick County, Maryland. After Rudman’s counsel stated “we agree that that would have been [Ms. P.’s] testimony” and Rudman, himself, indicated that he understood what the prosecutor had said, the circuit court accepted Rudman’s plea, stating: Based on Mr. Rudman’s answers to my questions, I find this plea of guilty, an Alford plea, but a plea of guilty nevertheless, to Count One, second-degree assault, is freely, voluntarily and understanding^ 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 judge then proceeded with sentencing, stating: 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. You are subject to all the standard conditions of probation, court cost of $145 paid to the clerk of the court today; a supervision fee of $40 per month; special condition 22, submit to—I think we’ll do it differently. Strike 22.

Twenty-eight, no contact with [Ms. P.] and no contact with [Ms. E.]. Thirty-two, continue "with your current mental health treatment and any follow-up recom ¹³ mended. And 84, take your medications as prescribed. And also under 34, follow any and all terms, conditions and recommendations of the Maryland Board of Physicians.

As I say, by accepting this, [Rudman] doesn’t even have the right to ask for relief to appeal, which I advised him of. Further, by accepting this, if he violates probation, he’s facing the original sentence of 10 years and a $2,500 fine, which that therefore becomes a suspended sentence. On October 26, 2006, the Office of the Attorney General petitioned the Board to revoke Rudman’s license to practice medicine, pursuant to section 14—404(b) of the Health Occupations Article, which provides: (b) Crimes involving moral turpitude.—(.1) On the filing of certified docket entries with the Board by the Office of the Attorney General, the Board shall order the suspension of a license if the licensee is convicted of or pleads guilty or nolo contendere with respect to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside. (2) After completion of the appellate process if the conviction has not been reversed or the plea has not been set aside with respect to a crime involving moral turpitude, the Board shall order the revocation of a license on the certification by the Office of the Attorney General.

The Board issued an order directing Rudman to show cause why his license to practice medicine should not be revoked. Rudman filed an answer and a motion to dismiss, requesting a hearing on both. Without holding the requested hearing, the Board issued a Final Decision and Order dated December 21, 2006, revoking Rudman’s license to practice medicine. It declared that it had no discretion but to do so because section 14-404(b) of the Health Occupations Article requires the Board to revoke the license of any physician who has pleaded guilty to or been convicted of a crime of moral turpitude. ¹⁴ In rendering that decision, the Board rejected Rudman’s claims that his Alford plea was not a guilty plea, that second-degree assault was not a crime of moral turpitude, and that the Board could not “act upon a plea of guilty if the court subsequently enters a disposition of probation before judgment.” With respect to his Alford plea, the Board, citing Ward v. State, 83 Md.App. 474, 478 , 575 A.2d 771 (1990), stated that “[a]n Alford plea is a guilty plea.” It further pointed out that “[t]he circuit court judge repeatedly advised Dr. Rudman ... that an Alford plea is a guilty plea, and Dr. Rudman and his attorney repeatedly acknowledged that they understood this.” In rejecting Rudman’s claim that second-degree assault was not a crime of moral turpitude, the Board stated that, “[r]egardless of a crime’s status at common law, a crime may be one of moral turpitude for purposes of administrative licensure sanctions if, upon consideration of the actual facts and circumstances of the crime, the licensing board determines that ‘public confidence in the administration of government’ would be jeopardized by continued licensure.” It then concluded that, based on the facts proffered by the State’s Attorney, Rudman’s crime, which was “committed by and through the use of his medical privileges and during a medical appointment,” was “the type that could cast the entire profession into disrepute and destroy public confidence in the government[al] regulation of physicians if not sanctioned” and therefore constituted a crime of moral turpitude.

The Board also found little merit to Rudman’s claim that the Board may not act upon a guilty plea if a probation before judgment is granted, explaining that it was required to act upon a plea, regardless of the subsequent disposition, unless the guilty plea itself is set aside. On January 5, 2007, Rudman filed a petition for judicial review in the circuit court. The circuit court vacated the final decision and order of the Board, explaining: The Petitioner acknowledges that there was a guilty plea and that it was accepted by the Court in the criminal case brought by the State against him. The Board argues that, ¹⁵ as to this issue, one need go no further after reading and adopting the plain language of the statute.

The Probation before Judgment is irrelevant. But, the Probation before Judgment has the effect of striking, or at least suspending, the guilty plea and rendering it of no force and effect, pending the conclusion of the probationary period. The entry of a judgment is stayed. Upon successful completion of probation, the defendant is discharged, there is no judgment of conviction and there is no conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime (see Criminal Law Procedure [sic] Article Section 6-220(g)(3)).

The Petitioner may then be eligible to have the entire criminal record expunged. That being the case, the question becomes: What is the status of the guilty plea pending the completion of the probationary period? The statute (14-404(b)(l)) makes no reference to Probation before Judgment and so the Board argues the legislature is presumed to have considered it and purposely ignored it as being inapplicable. On the other hand, one could argue that all the legislature had to do was say the act applies “whether or not the trial court grants Probation before Judgment” if that was its intent.

A close question in this court’s view. 1 resolve it in favor of the Petitioner. The case law cited by both parties is not dispositive. Since this case involves the denial of a hearing on the merits of the underlying alleged facts, it seems to the undersigned that any ambiguity should be resolved against the denial of a hearing on the disputed facts of this case. As to the issue of a crime involving moral turpitude, the Board acknowledges that, as a general proposition, Second-Degree Assault does not qualify.

However, the Board argues that the underlying facts alleged at the guilty plea turn the specifics of the Second-Degree Assault charge into a crime of moral turpitude. ¹⁶ The undersigned agrees with that proposition. For a physician to sexually abuse his patient is so outrageous as to require no argument to find moral turpitude. But, the problem in this case is that these outrageous facts are disputed. At the time they were alleged, the Petitioner denied them.

The specific sex crimes were dropped upon the acceptance of a plea to Second-Degree Assault. Without more, Second-Degree Assault would not qualify as a crime of moral turpitude. Since there has never been a hearing on the merits of