Finucan v. Board of Physicians

• Citation: 827 A.2d 176,151 Md. App. 399
• Decision Date: 25 June 2003
• Docket Number: No. 1891,1891
• Court: Court of Special Appeals of Maryland
• Parties: Thomas E. FINUCAN, Jr. v. MARYLAND STATE BOARD OF PHYSICIAN QUALITY ASSURANCE.

827 A.2d 176

151 Md. App. 399

Thomas E. FINUCAN, Jr. v. MARYLAND STATE BOARD OF PHYSICIAN QUALITY ASSURANCE.

No. 1891, Sept. Term, 2001.

Court of Special Appeals of Maryland.

June 25, 2003.

Thomas E. Finucan,Jr., Elkton, for appellant.

Thomas W. Keech, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee. Before MURPHY, C.J., BARBERA and RAYMOND G. THIEME, JR. (Retired, specially assigned) JJ.

BARBERA, J.

This case presents the question whether the Board of Physician Quality Assurance ("the Board") could reasonably conclude that a physician's having consensual sexual relations with adult patients, at times and locations other than those involving the immediate act of diagnosis or treatment, is "immoral or unprofessional conduct in the practice of medicine" within the meaning of Maryland Code (1981, 2000 Repl.Vol.), § 14-404(a)(3) of the Health Occupations Article. We hold that the Board could so conclude.

FACTS AND PROCEEDINGS

Appellant, Thomas E. Finucan, Jr., M.D., is a physician who from 1985 until 2001 worked as a family practitioner in Cecil County, Maryland. In addition to maintaining a private practice at his medical office in North East, Dr. Finucan worked evenings and weekends at Perry Point VA Medical Center, and was on staff at Union Hospital in Elkton.

On October 21, 1998, the Board received a written complaint from a patient, identified hereinafter as Patient A, that Dr. Finucan engaged in a sexual relationship with her while acting as her physician. The Board began investigating Patient A's complaint. The investigation disclosed that, from 1993 through 1998, Dr. Finucan engaged in a series of sexual and personal relationships with several patients while maintaining a physician-patient relationship with them.

Nearly one year later, the Board charged Dr. Finucan with immoral or unprofessional conduct in the practice of medicine. A seven-day evidentiary hearing was conducted by an Administrative Law Judge ("ALJ"). The ALJ made extensive fact findings, and concluded that Dr. Finucan had engaged in sexual relationships with three of his patients, Patients A, B, and D, while serving as their primary care physician.¹

Patient A was fifty-two years old at the time of the hearing. She first sought medical treatment from Dr. Finucan in March 1993. In September 1995, Dr. Finucan began calling Patient A and eventually visiting her at her home in the evenings, occasionally after midnight. At the time, Patient A was in the midst of a separation from her husband.

By the end of 1995, Dr. Finucan and Patient A had begun a consensual sexual relationship. They engaged in sexual intercourse and other sexual activity at her house and at his house on Old Field Point Road.² In addition to vaginal intercourse, Dr. Finucan wanted to have anal intercourse. He also frequently requested that Patient A perform oral sex on him, and that he be allowed to ejaculate in her mouth, so that "part of [him] will be with [her] all day." Patient A initially opposed these requests. Patient A testified that Dr. Finucan ignored her feelings and eventually "coerce[d]" her into doing these things she did not want to do.

Dr. Finucan also asked Patient A to seek reversal of a tubal ligation so that she could bear his child. Patient A did not acquiesce to this request.

Dr. Finucan insisted that he remain Patient A's physician while they were involved sexually. During this time, Dr. Finucan treated Patient A for several medical conditions, including a seizure disorder, high blood pressure, emotional problems, a shoulder injury, bee stings, and a sinus infection. On two occasions, Dr. Finucan delivered prescription medicine to Patient A's home after diagnosing her medical condition.

Except for a several-month break in late 1996 and early 1997, Dr. Finucan and Patient A continued their dual professional and sexual relationships until September 1997. In that month, he saw her as a patient for the last time. Their sexual relationship ended in the spring of 1998.

Patient A suffered psychological difficulties as a result of her sexual relationship with Dr. Finucan and began seeing a therapist. In October 1998, Patient A filed the complaint that prompted these proceedings.

Patient B was thirty-five years old at the time of the hearing. She first obtained medical care from Dr. Finucan in March 1995. About a year later, Patient B sought medical advice from him regarding a hip injury. During that office visit, Dr. Finucan discussed with Patient B his own personal stress and expressed interest in seeing her outside of the office. Approximately one week later, Dr. Finucan met Patient B in a park and confided in her about a relationship with another woman (Patient D). Thereafter, Dr. Finucan occasionally telephoned Patient B while he was on duty at Perry Point VA Medical Center.

By the beginning of the summer of 1996, Dr. Finucan and Patient B had commenced a sexual relationship. The relationship continued for approximately six months. They engaged in sexual intercourse and other sexual activity at an apartment he maintained above his medical office and, on at least two occasions, at a local motel.³

As he did with Patient A, Dr. Finucan requested that Patient B engage in oral sex and that she swallow his ejaculate because, Dr. Finucan told Patient B, it "made us as one and it was part of him that would be with [her] for awhile." Patient B testified that she initially opposed the request, but Dr. Finucan "used his control over me and his position to have me do things that I really wouldn't even do with my husband."

At his insistence, Dr. Finucan continued to see Patient B as a patient. During medical office visits, Dr. Finucan would "touch [her] breasts and things like that," and "[they] would kiss." During that same period, Patient B convinced her husband that they should transfer their teenaged daughter's care to Dr. Finucan.

As he did with Patient A, Dr. Finucan asked Patient B to seek reversal of a tubal ligation so that she could bear his child. Patient B spoke to another doctor regarding the procedure, but did not commence the process.

Dr. Finucan last saw Patient B as a patient in March 1997, treating her at that time for anxiety. Dr. Finucan had ended their sexual relationship one month earlier, over Patient B's objection. Patient B began psychotherapy to deal with issues of distrust, shame, self-blame, and anger. Patient D was forty years old at the time of the hearing. In late 1992, Patient D's husband visited Dr. Finucan for a physical examination as part of the law enforcement officer application process. Dr. Finucan learned that Patient D's husband would be training for several months at the police academy on the Eastern Shore, returning home only on weekends.

In early 1993, Dr. Finucan began a sexual relationship with Patient D. At about the same time, Dr. Finucan became the primary care physician for Patient D, her husband, and her daughters. Later that year, Dr. Finucan hired Patient D to be his office receptionist.

Patient D did not testify at the hearing, but her former husband did. Sometime in 1993, he discovered, in their home, men's clothing and condoms that did not belong to him. Patient D's husband also testified that he found greeting cards from Dr. Finucan to Patient D, and a photograph of Dr. Finucan "snuggling" with Patient D's children. On one occasion, Patient D's husband found Dr. Finucan asleep in Patient D's bed.

Patient D's marriage dissolved as a result of her sexual relationship with Dr. Finucan. In February 1994, Patient D and Dr. Finucan began living together. Dr. Finucan asked Patient D to have his baby and to undergo fertility testing, which she agreed to do. Sometime thereafter, Patient D became pregnant with Dr. Finucan's child, but suffered a miscarriage. The two became engaged to be married. Throughout this time, Dr. Finucan continued to provide medical care to Patient D and her daughters.

In June 1995, Patient D took an overdose of prescription medication in an apparent suicide attempt and was admitted to Union Hospital. Hospital records show that Patient D listed Dr. Finucan as her family physician, that he served as her admitting and attending physician, and that he had significant involvement in her care while she was in the hospital. The records also show that Patient D was discharged from the hospital to Dr. Finucan's care.

Approximately one year later, Patient D and Dr. Finucan ended their sexual relationship.

Herbert L. Muncie, Jr., M.D., Chair of the Department of Family Medicine at the University of Maryland School of Medicine and an expert in physician-patient boundary issues and the ethical practice of medicine, testified as a witness for the Board. Dr. Muncie stated that boundaries are important in the physician-patient relationship, in part because of the powerful role that the physician plays in that relationship. Dr. Muncie explained that a patient may naturally develop warm feelings for the physician and consequently be unable to perceive clearly the role to which the physician must adhere. The physician, therefore, must take care not to exploit the advantage physicians naturally gain over their patients. Even in those cases in which a sexual relationship develops after termination of the physician-patient relationship, ethical concerns may arise, depending on the physician's knowledge about the patient's past, family situation, and emotional state. Dr. Muncie opined "that there is never ... any situation, where having a sexual relationship with a [current] patient is ever, ever appropriate."

Counsel for the Board entered into evidence the Board's spring 1993 newsletter and a Journal of the American Medical Association ("JAMA") article entitled Sexual Misconduct in the Practice of Medicine, both of which state that sexual contact that occurs simultaneously with the physician-patient relationship constitutes sexual misconduct...