Board of Physician v. Banks

Decision Date12 May 1999
Docket NumberNo. 87,87
Citation729 A.2d 376,354 Md. 59
PartiesBOARD OF PHYSICIAN QUALITY ASSURANCE v. LESTER H. BANKS. Lester H. Banks v. Board of Physician Quality Assurance.
CourtMaryland Court of Appeals

Andrew H. Baida, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; C. Frederick Ryland, Asst. Atty. Gen., on brief), Baltimore, for petitioners.

Kathleen Howard Meredith (Stephen Y. Brennan, Iliff & Meredith, P.C., on brief), Baltimore, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER, and CATHELL, JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case to decide whether the Board of Physician Quality Assurance could reasonably conclude that a physician's sexually harassing conduct towards co-employees, committed while the physician was on duty at the hospital and in working areas of the hospital, constitutes immoral or unprofessional conduct in the practice of medicine within the meaning of Maryland Code (1981, 1994 Repl.Vol.), § 14-404(a)(3) of the Health Occupations Article.

I.

From 1986 until 1991, Dr. Lester H. Banks worked at Carroll County General Hospital as a medical-surgical house physician. As house physician, Dr. Banks was expected to work twelve hour shifts and was responsible for admitting patients into the hospital, caring for patients, and assisting in the operating room and emergency department. The house physician program was new to the hospital and was thus underutilized by the medical staff, resulting in considerable "down time" for the house physician. Because of the underutilization, Dr. Banks often agreed to work twenty-four and thirty-six hour shifts, frequently working as many as thirty shifts per month. When on duty, Dr. Banks was not free to leave the hospital and was expected to be available at all times. Nevertheless, when Dr. Banks was on duty but not utilized by the medical staff, he was free to sleep, eat, watch television, use the telephone, read, or visit with other employees in the hospital.

The evidence at the administrative hearing in this case disclosed the following. During the time Dr. Banks was employed by Carroll County General Hospital, he engaged in a pattern of sexually harassing female employees while he was on duty. A unit secretary at the hospital, witness # 1, stated that Dr. Banks on several occasions came to her work station and repeatedly touched her, rubbed her shoulders, back and neck, put his hands through her hair, and pinched her behind. She further stated that Dr. Banks "repeatedly made rude and unnecessary comments, most often regarding sex." She testified that on one occasion, Dr. Banks approached her from behind and put his hands around her waist and squeezed her stomach. Witness # 1 was offended by Dr. Banks's unwelcome advances and told him to leave her alone. She indicated that Dr. Banks's "conduct often occurred in areas where patients, visitors, and other staff could observe the embarrassing advances." Witness # 1 reported the offensive conduct to her supervisor and also filed a written report describing the conduct.

Witness # 2, a unit secretary in the hospital's emergency department, also reported sexual harassment by Dr. Banks. She stated that on one occasion shortly after she began her employment at the hospital, Dr. Banks was waiting behind her to stamp some documents on the addressograph machine for a patient he was admitting. While he was waiting, Dr. Banks hit witness # 2 "very hard on the backside, causing her to jump in surprise." Witness # 2 testified that on another occasion, an employee had accidentally knocked over a cup of coffee, spilling coffee on witness # 2 and on her shoes. At that time Dr. Banks asked witness # 2 to retrieve a patient chart for him. Witness # 2 told Dr. Banks that she would retrieve the chart just as soon as she was able to clean the coffee off of herself. Dr. Banks responded, "[w]hy don't you let me lick it off." Witness # 2 told Dr. Banks that he was "disgusting" and that he should leave her alone. On a third occasion, Dr. Banks came to witness # 2's desk and asked her when she would go out with him, to which witness # 2 responded "never." An emergency department nurse observed and commented upon this last incident. Witness # 2 subsequently filed a complaint with the hospital administration concerning Dr. Banks's unwelcome behavior.

Witness # 3, an emergency department registrar at the hospital, testified that Dr. Banks asked her to go out with him for drinks. Witness # 3 declined, stating that she was only nineteen years old and that she had a steady boyfriend. On another occasion, witness # 3 was walking out of the ladies room into the hallway outside the emergency department when Dr. Banks "pinned" her up against the wall with his arms and knee. She stated that they were so close that their stomachs were touching. Dr. Banks then asked witness # 3 "is it going to be your place or mine?" To this, witness # 3 replied "neither." Dr. Banks again asked her "when will it be?" She replied "never." An orderly who observed the incident pulled Dr. Banks away from witness # 3, allowing her to escape. Witness # 3 overheard Dr. Banks say to the orderly, "I guess she is not wet yet." Witness # 3 prepared a written report of this incident and subsequently filed a legal action against Dr. Banks.

The director of the emergency department at the hospital counseled Dr. Banks on several occasions regarding complaints about his conduct. In December 1987, the director counseled Dr. Banks concerning a comment Dr. Banks had made to a nurse, to the effect that "I'd like to get you behind closed doors." In May 1988, Dr. Banks was again counseled for a comment to a female employee, who was wearing red, that wearing red on certain days indicated sexual promiscuity. Finally, in September 1991, Dr. Banks was counseled concerning the incident with witness # 3. The hospital presented Dr. Banks with several options, and he elected to take a leave of absence. The hospital board of directors denied Dr. Banks's application for privileges as a result of his conduct. The Board of Physician Quality Assurance received information that Dr. Banks had been denied privileges at Carroll County General Hospital and subsequently decided to charge Dr. Banks with violating § 14-404(a)(3) of the Health Occupations Article, which provides as follows:

"(a) In general.—Subject to the hearing provisions of § 14-405 of this subtitle, the Board, on the affirmative vote of a majority of its full authorized membership, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee:

* * *

(3) Is guilty of immoral or unprofessional conduct in the practice of medicine...."

The Board issued charges and a summons to Dr. Banks to appear at a hearing before an administrative law judge (ALJ).

In a motion to dismiss the charges, Dr. Banks contended that the Board lacked jurisdiction and authority to take action in this case because Dr. Banks's conduct was not in the practice of medicine as is required by § 14-404(a)(3); rather, according to Dr. Banks, it did not even bear "the slightest relationship to [Dr. Banks's] performance of the practice of medicine, as that term is defined in § 14-101." Section 14-101(k) of the Health Occupations Article defines the "practice of medicine" as follows:

"(1) ... to engage, with or without compensation, in medical:

(i) Diagnosis;

(ii) Healing;

(iii) Treatment; or

(iv) Surgery.

(2)"Practice of medicine" includes doing, undertaking, pro-fessing to do, and attempting any of the following:
(i) Diagnosing, healing, treating, preventing, prescribing for, or removing any physical, mental, or emotional ailment or supposed ailment of an individual...."

The ALJ reserved ruling on Dr. Banks's motion until after a hearing on the merits. After conducting the evidentiary hearing, the ALJ issued a proposed order finding the facts as previously outlined and concluding that Dr. Banks violated § 14-404(a)(3) by committing unprofessional conduct in the practice of medicine, on two different occasions, toward witness # 2. The ALJ further concluded that Dr. Banks's conduct involving witnesses # 1 and # 3 was not in the practice of medicine. The ALJ held that Dr. Banks's conduct while waiting to use the addressograph machine to admit a patient and requesting that witness # 2 obtain a patient record were "part of the undertaking of patient treatment" and were, therefore, within the "actual performance of the practice of medicine." The ALJ stated that Dr. Banks was not "undertaking the diagnosing, healing or treating of an individual during the events described by witness # 1 or witness # 3." The ALJ proposed reprimanding Dr. Banks and requiring an evaluation by a psychiatrist to determine if psychiatric treatment was necessary.

The Board of Physician Quality Assurance adopted the ALJ's basic findings of fact but determined that all of Dr. Banks's above-described conduct, including his conduct toward witnesses # 1 and # 3, constituted "immoral or unprofessional conduct in the practice of medicine." The Board took the position that Dr. Banks's conduct occurred within the "practice of medicine" because his "presence in the hospital and `on-call' status clearly involved more than merely a `general or associative' relationship with his practice as a physician." Furthermore, the Board reasoned that a "hospital environment must at all times be conducive to the practice of medicine" because at "any time, an unforseen patient care emergency may require intensive team effort necessarily involving both physicians and hospital staff." It determined that Dr. Banks's conduct "risks a breakdown of the cooperation [among] the medical team which is so necessary to patient treatment in a hospital setting." The Board held that, because Dr. Banks's "conduct affected and soured the hospital working environment, there was a direct impact on...

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