Burke v. Md. Bd. of Physicians
| Decision Date | 28 April 2021 |
| Docket Number | No. 0513,0513 |
| Parties | THOMAS F. BURKE, M.D. v. MARYLAND BOARD OF PHYSICIANS |
| Court | Court of Special Appeals of Maryland |
ADMINSTRATIVE LAW AND PROCEDURE - JUDICIAL REVIEW - AGENCY EXPERTISE - SCOPE OF REVIEW
The scope of review is limited to the factual findings and legal conclusions made by the Board. Administrative agency final orders are subject to deferential judicial review. Appellate courts review final agency decisions in the light most favorable to the agency as agency decisions are presumed correct. A reviewing court may not substitute its judgment for the agency's expertise.
ADMINSTRATIVE LAW AND PROCEDURE - JUDICIAL REVIEW - SUBSTANIAL EVIDENCE
An agency's findings must be supported by substantial evidence in the record made before the Board. Substantial evidence is "evidence that 'a reasonable mind might accept as adequate.'" Motor Vehicle Admin. v. Pollard, 466 Md. 531, 537 (2019).
HEALTH - PROFESSIONAL REGULATION - DISCIPLINE, REVOCATION, AND SUSPENSION - MORAL TURPITUDE
Moral turpitude in the criminal context focuses on truthfulness whereas moral turpitude in the administrative context is a broader and more fluid concept. In the administrative law context, moral turpitude affects public confidence in the administration of government. Stidwell v. Md. State Bd. of Chiropractic Exam'rs, 144 Md. App. 613, 619 (2002).
HEALTH - PROFESSIONAL REGULATION - DISCIPLINE, REVOCATION, AND SUSPENSION - CRIMINAL CONVICTION - MORAL TURPITUDE
Based on the precedent established in Stidwell, 144 Md. App. 613, we hold that the appellant's "intentional and knowing" decision to prescribe controlled dangerous substances outside the course of acceptable medical standards constituted a crime of moral turpitude. While the appellant may still have credibility to testify in court, his actions decreased the public's confidence in the practice of medicine.
HEALTH - PROFESSIONAL LICENSING - MORAL TURPITUDE - PRESCRIPTIONS - CONTROLLED DANGEROUS SUSBTANCES - GUILTY PLEA
The appellant's guilty plea to five counts of the misdemeanor offense of writing prescriptions for controlled dangerous substances outside the scope of the medical profession was a conviction for a crime involving moral turpitude. Md. Code Ann., Crim Law § 5-902. Here, the Board properly concluded that the appellant pleaded guilty to a crime involving moral turpitude because the appellant's actions undermined the public's confidence in the practice of medicine.
CONSTITUIONAL LAW - DUE PROCESS - PROPERTY INTEREST - MEDICAL LICENSE
A licensed medical professional has a property right in their medical license and this right cannot be deprived without due process of law. The right to practice medicine is subject to the police power of the State to regulate public health and safety.
CONSTITUIONAL LAW - DUE PROCESS - PROPERTY INTEREST - MEDICAL LICENSE
While the appellant had a property interest in his license, the State did not deprive him due process by summarily suspending his license because the property right was subject to the State's police powers.
ADMINSTRATIVE LAW - JUDICIAL REVIEW - ARBITRARY AND CAPRCIOUS
Arbitrary and capricious review applies to review of the agency's discretionary functions. A reviewing court applies a high level of deference to an agency's exercise of its discretionary power. A reviewing court will only intervene in an agency's discretionary decisions if the agency acted "arbitrary or capricious."
ADMINSTRATIVE LAW - JUDICIAL REVIEW - ARBITRARY AND CAPRCIOUS - DEFERENCE TO AGENCY
Here, the agency's decision to charge the appellant under Md. Code Ann., Health Occ. §14-404(b), rather than § 14-404(a) was not arbitrary or capricious. The guilty plea provided the necessary facts for the Board to conclude that the appellant pleaded guilty to a crime involving moral turpitude. The Board properly exercised its discretion in choosing to proceed with summary disposition under §14-404(b).
HEALTH - PROFESSIONAL REGULATION - DISCIPLINE, REVOCATION, AND SUSPENSION - HEARING
Md. Code Ann., Health Occ. §14-404(b) mandates license revocation if the Board concludes an individual has been convicted of or pleaded guilty to a crime involving moral turpitude. The Board may hold a hearing, but hearings are solely limited to contestable issues to allow for expedited and summary disposition. Crimes involving moral turpitude will ordinarily be resolved without the need for evidence or fact-finding, thus eliminating the need for a hearing.
HEALTH - PROFESSIONAL REGULATION - DISCIPLINE, REVOCATION, AND SUSPENSION - HEARING
In this case, the agency's decision to deny the appellant's request for a hearing was not arbitrary or capricious because the statute allows the Board to proceed with summary disposition after an individual has been convicted of a crime involving moral turpitude.
Circuit Court for Baltimore City
Case No. 24C19007001
REPORTED
Opinion by 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.
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.
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 forSchedule 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.
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.
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.
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. ...
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