Finucan v. Board of Physicians

• Decision Date: 05 April 2004
• Docket Number: No. 71,71
• Parties: Thomas E. FINUCAN, Jr. v. MARYLAND BOARD OF PHYSICIAN QUALITY ASSURANCE.
• Court: Maryland Court of Appeals

846 A.2d 377

380 Md. 577

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

No. 71, Sept. Term, 2003.

Court of Appeals of Maryland.

April 5, 2004.

Reconsideration Denied May 6, 2004.

Thomas E. Finucan, Jr., Port Deposit, pro se petitioner.

Thomas W. Keech, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. on brief), Baltimore, for Respondent. Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, Judge.

On 21 October 1998, Respondent, the Board of Physician Quality Assurance¹ ("the Board"), received a written complaint from a female patient of Thomas E. Finucan, Jr., M.D., Petitioner, alleging that Finucan engaged in a sexual relationship with her while concurrently acting as her physician. The subsequent investigation by the Board disclosed that, between 1993 and 1998, Finucan engaged in a series of sexual relationships with several female patients while maintaining, at the same time, a physician-patient relationship with them.

The Board charged Finucan with "immoral or unprofessional conduct in the practice of medicine." Following an administrative evidentiary hearing, an Administrative Law Judge (ALJ) of the Maryland Office of Administrative Hearings (OAH) concluded that Finucan had engaged in sexual relationships with three of his female patients during the time they were his patients. The ALJ recommended revocation of Finucan's license to practice medicine in Maryland. On 21 December 2000, the Board adopted the ALJ's findings and imposed license revocation as the appropriate sanction for the misconduct revealed by the facts.

Finucan sought judicial review of the Board's final order. After hearing oral argument, the Circuit Court for Talbot County affirmed the Board's decision. On direct appeal by Finucan, the Court of Special Appeals affirmed. We granted Finucan's petition for a writ of certiorari, Finucan v. Board of Physicians, 377 Md. 275, 833 A.2d 31 (2003), to consider the sole question posed in his petition:

Does a physician commit immoral or unprofessional conduct in the practice of medicine [ ] by engaging in consensual sexual activity with a patient concurrent with the existence of a physician-patient relationship, in the absence of evidence that such activity occurred while the physician was actually engaged in the treatment and care of the patient?

I.

Petitioner was a physician who, from 1985 until 2001, practiced as a family practitioner in Cecil County, Maryland. He maintained a private practice from a medical office in North East, was on the staff at Union Hospital in Elkton, and also worked at Perry Point Veterans Medical Center.

This case commenced on 21 October 1998 when the Board received a written complaint from a female patient ("Patient A") alleging that Finucan engaged in a sexual relationship with her while acting as her physician. The subsequent investigation of the complaint by the Board suggested that, from 1993 through 1998, Finucan engaged in a series of sexual relationships with several then current patients.

A. Administrative Proceedings

The Board charged Finucan on 30 September 1999 with "immoral or unprofessional conduct in the practice of medicine" under the Maryland Medical Practice Act ("the Act"), Md.Code (1981, 1994 Repl. Vol.), § 14-404(a)(3) of the Health Occupations Article.² A seven-day evidentiary hearing was conducted before an ALJ. After hearing from fifteen witnesses and considering seventy exhibits, the ALJ issued a Revised Proposed Decision³ concluding that Finucan violated the Act by engaging in sexual relationships with three female patients—Patients A, B, and D— while concurrently maintaining physician-patient relationships. The ALJ also concluded, however, that the Board had not proved similar charges involving Patient C. Finucan filed written Exceptions with the Board. After an exceptions hearing, the Board issued its Final Decision and Order on 24 January 2001, adopting the Revised Proposed Decision of the ALJ and revoking Finucan's license to practice medicine.

Facts Found as to Patient "A"

The Board found that Finucan began an intimate sexual relationship with Patient A during 1995 at a time when he also was treating her for a seizure disorder, high blood pressure, and emotional problems. Patient A initially consulted Finucan as her physician in 1993 for emotional difficulties following a separation from her second husband. Finucan began calling Patient A at home in September 1995, while she was a still a patient, to give her medical test results. He continued to call her at home, ultimately asking for and receiving directions to her house. He then began visiting her in the evenings and the two began a consensual sexual relationship before the end of 1995.

During the intimate relationship, Finucan requested that Patient A have her tubal ligation reversed so that she could bear his child. In addition, he assisted Patient A in having her driving privilege reinstated, writing a supporting letter, dated 15 December 1995, toward that end. Patient A viewed Finucan as "her champion" in this effort. In June 1996, during the course of Patient A's treatment by Finucan for high blood pressure, Patient A became dissatisfied with her treatment and caused her patient file to be transferred to another doctor for his review. The intimate relationship ceased for a couple of months beginning in June 1996, when the parties had a falling out, but resumed again.

In June 1997, Patient A went with a hurt shoulder for an office visit with Finucan. Subsequently, he brought drug samples to Patient A's home to treat her shoulder. Sometime during 1997 or 1998, Finucan also brought antibiotics to Patient A's home to treat her sinus infection. Finucan and Patient A continued their parallel professional and sexual relationships until September 1997. In September, he saw her as a patient for the last time, treating her for multiple bee stings. In approximately the Spring of 1998 the intimate relationship between Finucan and Patient A ended. As a result of psychological difficulties arising out of Patient A's intimate relationship with Finucan, she began seeing a therapist in July 1998. Facts Found as to Patient "B"

In the Spring of 1996, Patient B visited Finucan at his medical office, complaining of a hip injury. They flirted at that time and made arrangements to meet at a park a few days later. Approximately five weeks after first treating Patient B for her hip injury, Finucan began having a sexual relationship with her. Some of the sexual encounters occurred at an apartment that Finucan maintained adjacent to his medical practice. Patient B was married at the time, and her husband was also a patient of Finucan. Patient B convinced her husband that they should transfer their teenage daughter's care to Finucan as well.

During the intimate relationship, Finucan requested Patient B to bear a child by him. Patient B responded that she previously underwent a tubal ligation and was unable to conceive. Nevertheless, Patient B visited another doctor to inquire about a tubal ligation reversal, but did not follow through with the process. Finucan and Patient B continued their parallel professional and sexual relationships until February 1997, when they had sexual relations for the last time. Patient B continued, however, as his patient, being treated for anxiety in March 1997. Finucan ended the intimate relationship with Patient B against her will. Patient B had a difficult time dealing with the break-up and reacted by pursuing Finucan, following him around, appearing at his home and office uninvited and unwelcome. After ending her intimate relationship with Finucan, Patient B received psychotherapy to deal with sequelae issues of distrust, shame, self-blame, and anger.

Facts Found as to Patient "D"

Finucan was the primary care physician for Patient D, her husband, and their three daughters. Finucan, married at the time himself, was able to initiate a sexual relationship with Patient D by using knowledge gained from his physician-patient relationship with her husband. Patient D's husband visited Finucan for a physical examination as part of a government job application process. Finucan learned from him that he would be away from home at training for several months, returning only on weekends. In early 1993, while Patient D's husband was away, Finucan began his sexual relationship with Patient D. On one occasion, Patient D's husband returned home and found Finucan sleeping in the marital bed. Patient D's marriage crumbled as a direct result of Finucan's sexual relationship with her.

In the Fall of 1993, Patient D began working for Finucan in his medical office as a Registered Nurse. During the intimate relationship, Finucan asked Patient D to have his baby. In 1994, Patient D moved in with Finucan. She underwent fertility testing at his request. Finucan became engaged to Patient D while continuing to provide medical care to her and her family.

In early June 1995, Patient D took an overdose of a prescription medication in an apparent suicide attempt and was admitted to the Intensive Care Unit at Union Hospital. At that time, she listed Finucan as her family physician. Finucan was the admitting and attending physician and had significant involvement in her care for the overdose. She was discharged from the hospital to Finucan's continuing care. Approximately one year later, Patient D and Finucan ended their sexual relationship.

Expert Testimony

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 the Board's witness before the ALJ. Dr. Muncie testified that boundaries are important in the physician-patient relationship, in part because of the powerful role that the physician plays in that relationship. He observed that a patient...