Burke v. Md. Bd. of Physicians

• Citation: 250 A.3d 313,250 Md.App. 334
• Decision Date: 28 April 2021
• Docket Number: No. 0513, Sept. Term, 2020,0513, Sept. Term, 2020
• Parties: Thomas F. BURKE, M.D. v. MARYLAND BOARD OF PHYSICIANS
• Court: Court of Special Appeals of Maryland

250 Md.App. 334

250 A.3d 313

Thomas F. BURKE, M.D.

v.MARYLAND BOARD OF PHYSICIANS

No. 0513, Sept. Term, 2020

Court of Special Appeals of Maryland.

April 28, 2021

Argued by: Jeffrey M. Lichtstein (Rosenberg, Martin, Greenberg, LLP on the brief), Baltimore, MD, for Appellant.

Argued by: Stacey M. Darin (Brian E. Frosh, Atty. Gen. on the brief), Baltimore, MD, for Appellee.

Panel: Berger, Friedman, Wells, JJ.

Wells, J.

After Doctor Thomas F. Burke entered guilty pleas to five counts of prescribing controlled dangerous substances in violation of Md. Code Ann., Crim. Law ("CR") § 5-902(c), the Maryland State Board of Physicians (the "Board") found that his conduct constituted crimes of moral turpitude and revoked his medical license. The Circuit Court for Baltimore City affirmed. Dr. Burke appealed. We affirm the circuit court's decision.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Doctor Burke was licensed to practice medicine in Maryland on July 21, 1995, under license number D47746. He remained a practicing physician until the Board revoked his license on November 20, 2018. Dr. Burke is board-certified by the American Board of Internal Medicine in general Internal Medicine, Pulmonary Disease

, Critical Care and Sleep Medicine. He is also certified in Sleep Medicine by the American Board of Sleep Medicine. Beginning in 2001 and up until his license was revoked, he practiced at Chesapeake Pulmonary Associates in Fallston.

A. Dr. Burke's Criminal Charges

The Grand Jury for Harford County returned a sixty-two-count indictment against Dr. Burke on February 28, 2018, charging him with various offenses related to the distribution, possession, or the writing of prescriptions for controlled dangerous substances ("CDS"). On January 28, 2019, Dr. Burke pleaded guilty to five counts, each alleging a violation of CR § 5-902(c), namely, writing prescriptions outside "the course of regular professional duties." At the plea hearing, he admitted to writing several prescriptions for Schedule II and IV CDS,¹ such as, Valium

(Diazepam ), Xanax (Alprazolam ), Adderall (Amphetamine ), and Oxycodone for his long-term girlfriend, his brother, and his neighbor. Dr. Burke admitted that he did not conduct a medical examination for any of these individuals nor did he provide a medical rationale for any of the prescriptions. He insisted that he wrote these prescriptions because none of the recipients had a primary care physician and, according to Dr. Burke, each individual had been prescribed the same medications by a physician on a prior occasion.

On January 28, 2019, the Circuit Court for Harford County sentenced Dr. Burke to two-years’ incarceration on each count, to be served consecutively, with all but three years suspended and imposed a period of probation. The court gave credit against the sentence for time served awaiting disposition. As a condition of the plea, Dr. Burke surrendered his Drug Enforcement Administration and Maryland CDS registrations during the term of probation.

B. Maryland Board of Physicians Initial Proceedings

On November 20, 2018, prior to Dr. Burke entering the guilty pleas as described, the Board summarily suspended his medical license under Md. Code Ann., State Gov't § 10-226(c)(2) after concluding that emergency action was required to protect the public's health, welfare and safety. Dr. Burke did not challenge this summary suspension.

Later, on December 3, 2018, the Board charged Dr. Burke with violating Md. Code, Health Occupations ("HO") § 14-404(a)(3)(ii) and (a)(27).² Dr. Burke requested a Disciplinary Committee for Case Resolution Conference ("DCCR") as provided by HO § 14-404(a). The DCCR conference was initially scheduled for April 2019, but Dr. Burke requested a postponement, so the hearing was rescheduled to September 25, 2019.

In the meantime, on May 7, 2019, the Office of Attorney General ("OAG") filed a petition to revoke Dr. Burke's medical license based on his January 2019 convictions. The Board charged Dr. Burke under HO § 14-404(b)³ and issued a petition to show cause. These charges were in addition to the charges that had been previously filed under HO § 14-404(a). Dr. Burke and his counsel responded to the show cause petition on June 24, 2019 requesting that the Board deny the petition.

On September 9, 2019, the Board issued a Final Decision and Order and revoked Dr. Burke's medical license. The Board found that Dr. Burke's convictions on five counts of prescribing CDS outside the course of his regular professional duties constituted crimes of moral turpitude and were violative of the standards of the medical profession. The Board then cancelled the September 25, 2019 DCCR because the Board had now revoked Dr. Burke's license under HO § 14-404(b)(2), which does not require the Board to hold a hearing if it concludes that the conduct underlying the revocation involved moral turpitude.

C. Judicial Review of the Board's Decision

On October 9, 2019, Dr. Burke filed a petition for judicial review in the Circuit Court for Baltimore City. The Board opposed. After the June 25, 2020 hearing, the circuit court affirmed the Board's decision in a written memorandum and order. Dr. Burke filed a timely appeal.

Standard of Review

The Maryland Board of Physicians is an adjudicative administrative body in the Executive Branch of the Maryland state government and "its decisions are subject to the same standards of judicial review as adjudicatory decisions of other administrative agencies." NIHC, Inc. v. Comptroller of Treasury , 439 Md. 668, 683, 97 A.3d 1092 (2014). This Court confines its review to the administrative agency's decision and does not review the decision of the circuit court. Motor Vehicle Admin. v. Pollard , 466 Md. 531, 537, 222 A.3d 177 (2019) ; Frey v. Comptroller of Treasury , 422 Md. 111, 136-37, 29 A.3d 475 (2011) (noting that "[o]n review of an agency's decision, we focus on the agency's decision and look past the circuit court's decision"); Consumer Prot. Div. v. Morgan , 387 Md. 125, 160, 874 A.2d 919 (2005) (explaining that the Court "review[s] directly the action of the agency, rather than the decision of the intervening reviewing courts").

Final decisions are reviewed "in accordance with the well-established principles of administrative law." Para v. 1691 Ltd. P'ship , 211 Md. App. 335, 354, 65 A.3d 221 (2013). An administrative agency's final order "is subject to deferential judicial review." Id. (quoting Carriage Hill Cabin John, Inc. v. Md. Health Res. Planning Comm'n , 125 Md. App. 183, 220, 724 A.2d 745 (1999) ); Md. Nat'l Capital Park & Planning Comm'n v. Greater Baden-Aquasco Citizens Ass'n , 412 Md. 73, 84, 985 A.2d 1160 (2009) ("Review of an administrative agency's action generally is a narrow and highly deferential inquiry."). A reviewing court reviews "the agency's decision in the light most favorable to it" because the agency's decision "is prima facie correct and presumed valid" as it is within the agency's role to resolve evidentiary conflicts. Md. Aviation Admin v. Noland , 386 Md. 556, 571, 873 A.2d 1145 (2005) (quoting Bd. Of Physician Quality Assurance v. Banks , 354 Md. 59, 67-69, 729 A.2d 376 (1999) ); Md. State Bd. of Social Exam'rs v. Chertkov , 121 Md. App. 574, 583, 710 A.2d 391 (1998) ("Final decisions are presumptively correct, and a court must show deference both to findings of fact and drawings of inferences by an agency.").

This Court, however, cannot uphold or reverse the decision of the Board on any grounds "other than the findings and reasons set forth by the [Board]."

Gore Enter. Holdings, Inc. v. Comptroller of Treasury , 437 Md. 492, 503, 87 A.3d 1263 (2014) ; Frey , 422 Md. at 137, 29 A.3d 475 ; Md. Code Ann., State Gov't § 10-222 (h)(1-3) (explaining that on review the court may remand the case, affirm the final decision or "reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion or decision ... is unsupported by competent, material, and substantial evidence in light of the entire record as submitted" or "is arbitrary or capricious").

The substantial evidence standard refers to "evidence that ‘a reasonable mind might accept as adequate.’ " Pollard , 466 Md. at 537, 222 A.3d 177 ; Frey , 422 Md. at 136-37, 29 A.3d 475 (explaining that substantial evidence "consider[s] whether a reasoning mind reasonably could have reached the factual conclusion the agency reached"). This standard is applied to both the agency's factual findings and mixed questions of law and fact, such as to "issues of whether the agency applied the law correctly to the facts." Greater Baden-Aquasco Citizens Ass'n , 412 Md. at 84, 985 A.2d 1160 ; Frey , 422 Md. at 137, 29 A.3d 475 ("We review factual findings and inferences therefrom under a substantial evidence standard."); Gen. Motors Corp. v. Bannings Beltway Pontiac , 138 Md. App. 671, 773 A.2d 584 (2001).

The entire record is reviewed to determine whether the final order is "supported by substantial evidence and correct conclusions of law." Pollard , 466 Md. at 537, 222 A.3d 177 ; Bd of Directors of Cameron Grove Condo., II v. State Comm'n on Hum. Relations , 431 Md. 61, 80, 63 A.3d 1064 (2013) ; Para , 211 Md. App. at 354, 65 A.3d 221 (explaining that the reviewing court looks to "whether the agency's findings were supported by substantial evidence in the record made before the agency"); Greater Baden-Aquasco Citizens Ass'n , 412 Md. at 84, 985 A.2d 1160 (noting that the reviewing court examines whether "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 based on an erroneous legal conclusion"); Noland , 386 Md. at 571, 873 A.2d 1145 (quoting Banks , 354 Md. at 67-69, 729 A.2d 376 ) (explaining that a reviewing court is "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...