Board of Physician Quality Assur. v. Levitsky
| Citation | 725 A.2d 1027,353 Md. 188 |
| Decision Date | 01 September 1998 |
| Docket Number | No. 34,34 |
| Parties | BOARD OF PHYSICIAN QUALITY ASSURANCE v. Leon R. LEVITSKY, M.D. , |
| Court | Maryland Court of Appeals |
Andrew H. Baida, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; Thomas W. Keech, Asst. Atty. Gen., on brief), Baltimore, for petitioner.
John A. Austin, Towson, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
In a Final Opinion and Order dated July 30, 1997, the Board of Physician Quality Assurance found that respondent, Leon R. Levitsky, had violated two provisions of the Maryland Medical Practices Act--abandonment of a patient and failure to meet appropriate standards for the delivery of medical care--and revoked his license to practice medicine. The Circuit Court for Prince George's County, acting on Dr. Levitsky's petition for judicial review, reversed the Board's order upon a finding that the peer review process that occurred prior to the filing of charges against Dr. Levitsky was not conducted in strict compliance with procedural requirements governing that process. In reaching that conclusion, the court followed the decision of the Court of Special Appeals in Young v. Board of Physician, 111 Md.App. 721, 684 A.2d 17, cert. granted, 344 Md. 568, 688 A.2d 447, cert. dismissed, 346 Md. 314, 697 A.2d 82 (1997). We granted the Board's petition for certiorari before argument in the Court of Special Appeals to consider whether the irregularities alleged or shown in this case suffice to invalidate the Board's final order. We shall conclude that they do not and therefore shall reverse the judgment of the circuit court.
Before delving into the relevant facts and procedural history, we think it helpful to summarize the process used by the Board to investigate and adjudicate complaints made against physicians. That process is governed by the Maryland Medical Practices Act (Maryland Code, title 14 of the Health Occupations Article), regulations adopted by the Board that are codified in COMAR 10.32.02, and a Peer Review Handbook for Maryland adopted jointly by the Board and the Medical and Chirurgical Faculty of Maryland (Med Chi) in 1989.
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.
§ 14-401(a). Unless, as a result of that investigation, the Board elects not to proceed further, it is required to refer to Med Chi, "for further investigation and physician peer review," any allegation involving standards of medical care. § 14-401(c)(2). Med Chi may delegate the matter to a medical review committee but is required, within 90 days, to make a report to the Board. The report is to contain the information and recommendations necessary for appropriate action by the Board. § 14-401(e).
The peer review process is governed by the Peer Review Handbook. Although there is no reference to the Handbook in either the statute or the Board's regulations, a preface to it states that the Handbook was adopted by the Board as "its required administrative procedure for investigation in the State of Maryland." Chapter III of the Handbook states that Med Chi "conducts its investigation in accordance with the protocols in the Peer Review Handbook."
The Handbook calls for the President of Med Chi, annually, to appoint a Peer Review Management Committee with responsibility, among other things, to receive cases from the Board, identify the guidelines to be used in conducting a peer review, refer cases from the Board to an appropriate medical review committee, review reports received from the medical review committee to assure that the review and report were conducted and prepared in accordance with the Handbook guidelines, and to transmit proper reports to the Board. In cases where the peer review is of a physician's practice, rather than of an individual incident, the medical review committee, after determining whether the physician's records are sufficiently legible to proceed, may appoint a medical review team, consisting of at least two physicians, only one of whom need be a member of the medical review committee. Those physicians, on the medical review team, must examine the records of at least ten patients. Each member of the team must review all ten records and complete an Initial Medical Record Assessment Worksheet, in the form attached as an Appendix to the Handbook, for each record reviewed. Following an office visit, the medical review team, individually or jointly, must The medical review committee is directed to gather whatever pertinent information is needed to form a clear picture of the physician's present practice, and the Handbook describes a number of ways in which the committee may obtain that information. The committee must meet with the review team to discuss the office review report, and, if the committee or the team has a concern about the physician's practice, the committee must meet with the physician. In that regard, Chapter XI, p C.13 of the Handbook provides, in relevant part:
write a report for consideration by the medical review committee.
The medical review committee prepares a report to the Board, which it forwards to the Peer Review Management Committee for transmission to the Board.
Upon receipt of the Med Chi report, the Board determines whether there is reasonable cause to charge the physician with a failure to meet appropriate standards of care. COMAR 10.32.02.03B. If it files a charge, the Board refers the matter to an administrative prosecutor for prosecution and sends notice to the physician. COMAR 10.32.02.03C. Unless the case is resolved through a case resolution conference or an offer by the physician to surrender his or her license, an evidentiary hearing is held either before the Board or before an administrative law judge (ALJ) from the Office of Administrative This case proceeded in accordance with that general format. In October, 1993, the Board received an Adverse Action Report from Doctors' Community Hospital in Prince George's County stating that Dr. Levitsky (1) was unavailable on the day that a patient of his was admitted and continued to be unavailable during that patient's hospital stay, and (2) had been abusive to nursing and laboratory personnel. Although the text of the Action Report is not in the record before us, it appears from a description of it that numerous complaints had been filed with the hospital's medical quality assurance committee and that, as a result, the hospital had suspended Dr. Levitsky's privileges for six months, with reinstatement subject to certain conditions. After a preliminary investigation, the Board referred the matter to Med Chi for further investigation and peer review. In January, 1994, the Board subpoenaed and turned over to Med Chi medical records relating to eleven of Dr. Levitsky's patients.
Hearings. § 14-405; COMAR 10.32.02.03E. If the matter is tried before an ALJ, as it was in this case, the ALJ issues findings of fact, conclusions of law, and a proposed disposition, to which the physician or the administrative prosecutor may except. After a hearing on any exceptions, the Board issues an order containing the accepted findings of fact and conclusions of law and a disposition. That order is then subject to judicial review in accordance with the Administrative Procedures Act (Maryland Code, title 10, subtitle 2 of the State Government Article).
Med Chi's Peer Review Management Committee referred the matter to a medical review committee of six physicians which, in turn, designated a medical review team, consisting of Drs. Mel P. Daly and John Kelly, to review the patient records. In July, 1994, Dr. Daly rendered a written report to the medical review committee, in which he summarized in general terms both the outpatient and inpatient records. He stated that he had reviewed each patient's record separately, and he concluded that "all of the records reviewed revealed potentially serious deficiencies in patient care." Dr. Daly did Dr. Kelly made a separate report in August, one page of which is missing from the record. In his general comments, Dr. Kelly noted that Dr. Levitsky's handwriting was illegible, thereby making it nearly impossible to identify from the progress notes his thought processes or even his presence. Dr. Kelly pointed out, however, that in none of the cases was there an adverse event or outcome. He concluded that Dr. Levitsky's record keeping was "less than satisfactory," but because there was no adverse medical result, it was difficult for him to address the standard of care issue. Unlike Dr. Daly, Dr. Kelly completed an Initial Medical Record Assessment Worksheet with respect to each patient.
not, however, complete the Initial Medical Record Assessment Worksheet called for by Chapter XI, p C.8 of the Handbook.
In December, 1994, the medical review committee met. According to the committee's report, Dr. Kelly and Dr. Daly "reviewed each of the medical records for the eleven patients." Dr. Kelly "commented individually on the patient records," and Dr. Daly "presented his review in the form...
To continue reading
Request your trial