Geier v. Md. State Bd. of Physicians

• Decision Date: 29 May 2015
• Docket Number: No. 1095, Sept. Term, 2014.,1095, Sept. Term, 2014.
• Citation: 116 A.3d 1026,223 Md.App. 404
• Parties: Mark R. GEIER v. MARYLAND STATE BOARD OF PHYSICIANS.
• Court: Court of Special Appeals of Maryland

223 Md.App. 404

116 A.3d 1026

Mark R. GEIER

v.MARYLAND STATE BOARD OF PHYSICIANS.

No. 1095, Sept. Term, 2014.

Court of Special Appeals of Maryland.

May 29, 2015.

Reconsideration Denied July 31, 2015.

Francis John Kreysa, Gaithersburg, MD (James M. Love, Titus, Hillis, Reynolds, Love, Dickman & McCalmon, PC, Tulsa, OK), all on the brief, for appellant.

David E. Wagner (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, GRAEFF and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

Opinion

GRAEFF, J.

Mark R. Geier (“Dr. Geier”), appellant, seeks review of the decision of the Maryland State Board of Physicians (the “Board”), appellee, to revoke his license to practice medicine.¹ The Board revoked his license after it determined that he violated numerous provisions of the Medical Practice Act (the “Act”), Md.Code (2009 Repl.Vol.) §§ 14–401 et seq., of the Health Occupations Article (“HO”), including HO §§ 14–404(a)(3)(ii) (unprofessional conduct in the practice of medicine), 14–404(a)(11) (willfully making or filing a false report or record in the practice of medicine), 14–404(a)(22) (failing to meet standards, as determined by peer review, for the delivery of quality medical care), 14–404(a)(40) (failing to keep adequate medical records), and 14–404(a)(12) (willfully failing to file or record any medical report as required under law, willfully impeding or obstructing the filing or recording of the report, or inducing another to fail to file or record the report).

Dr. Geier petitioned for judicial review in three jurisdictions, the Circuit Court for Baltimore City, the Circuit Court for Baltimore County, and the Circuit Court for Montgomery County. After Dr. Geier voluntarily dismissed his petitions in Baltimore City and Baltimore County, the Board moved to dismiss the remaining petition on res judicata grounds, pursuant to Md. Rule 2–506(c), which provides “that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim.”² The Circuit Court for Montgomery County denied the Board's motion to dismiss, and it affirmed the Board's decision on the merits.

On appeal, Dr. Geier presents 12 questions for this Court's review, which we have consolidated and rephrased, as follows:

1. Was there substantial evidence in the record to support the Board's findings that Dr. Geier: (1) engaged in unprofessional conduct in the practice of medicine, pursuant to HO § 14–404(a)(3)(ii) ; (2) willfully made a false record in the practice of medicine, pursuant to HO § 14–404(a)(11) ; and (3) failed to meet appropriate standards for the delivery of quality medical care, pursuant to HO § 14–404(a)(22) ?

2. Did the ALJ abuse its discretion in admitting the testimony of the State's expert witness, Dr. Linda Grossman?

3. Did the ALJ properly exclude from evidence two exhibits offered by Dr. Geier?

4. Did the Board properly reject Dr. Geier's contention that the State was required to admit into evidence two peer review reports?

5. Did the circuit court properly deny Dr. Geier's request to supplement the administrative record?

6. Did the circuit court abuse its discretion in denying Dr. Geier's motion for a stay?

The Board, although it did not file a cross-appeal, lists in its brief the following additional question for review:

Was Dr. Geier's petition for judicial review in the Circuit Court for Montgomery County barred on res judicata grounds under [Md.] Rule 2–506(c) after Dr. Geier voluntarily dismissed two other petitions for judicial review that he had filed to contest the Board's decision?

For the reasons that follow, we conclude that the Board's question presented is not properly before this Court. With respect to the issues raised by Dr. Geier, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Relevant Proceedings

On October 3, 2006, the Board notified Dr. Geier that it had received a complaint against him regarding his use of the drug Lupron to treat autistic children.³ The complainant, who was neither a patient of Dr. Geier's, nor a parent of a patient, alleged that, in treating autistic children, Dr. Geier was: (1) practicing outside of the scope of his expertise and the prevailing standard of care for autism ; (2) experimenting on children without a rational scientific theory or the supervision of a qualified review board; and (3) failing to provide appropriate informed consent regarding the potential side effects of Lupron and similar drugs.

On April 27, 2011, the Board issued an order for summary suspension of Dr. Geier's license to practice medicine, concluding that the “public health, safety or welfare imperatively required emergency action.” On May 16, 2011, the Board issued charges against Dr. Geier pursuant to the Act. Dr. Geier requested hearings on both the order for summary suspension and the charges.

On June 17, 20, 21, 23, 27, and 30, 2011, an Administrative Law Judge (“ALJ”) held a hearing on the Board's order for summary suspension. On September 26, 2011, the ALJ issued a proposed decision upholding summary suspension of Dr. Geier's license.

In the interim, on September 15, 2011, the Board issued amended charges under the Act against Dr. Geier. The amended charges alleged violations of HO §§ 14–404(a)(3)(ii) (unprofessional conduct in the practice of medicine); (a)(11) (willfully making or filing a false report or record in the practice of medicine); (a)(12) (willfully failing to file or record any medical record as required under law); (a)(18) (practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine); (a)(19) (gross overutilization of health care services); (a)(22) (failure to meet appropriate standards for the delivery of quality medical care); and (a)(40) (failure to keep adequate medical records).

On December 6, 7, 8, 9, and 15, 2011, the ALJ held a hearing on the amended charges. At the hearing, by agreement of the parties, the entire record of the prior summary suspension hearing, including all testimony presented and all exhibits admitted, were incorporated into evidence. On March 13, 2012, following the hearing, the ALJ issued a 126–page proposed decision, recommending that the amended charges be upheld with regard to HO §§ 14–404(a)(3)(ii), 14–404(a)(11), 14–404(a)(22), and 14–404(a)(40) and dismissed with regard to HO §§ 14–404(a)(12), 14–404(a)(18), and 14–404(a)(19). The ALJ recommended that Dr. Geier's license be revoked.

In April 2012, Dr. Geier filed exceptions to the ALJ's proposed decision. On May 23, 2012, the Board held an exceptions hearing. On August 22, 2012, the Board issued a Final Decision and Order, ordering that Dr. Geier's license be revoked.

The Board found, among other things, that Dr. Geier treated patients with Lupron, a medication that was not approved by the U.S. Food and Drug Administration (“FDA”) for use on children in the absence of precocious puberty, and that Dr. Geier did not perform an adequate examination to determine if the patients had precocious puberty. Although it noted Dr. Geier's opinion that Lupron therapy was appropriate for purposes not approved by the FDA or the American Academy of Pediatrics, and his testimony that he treated patients who met his profile with Lupron, it found that, with the exception of one patient who was the subject of the hearing, “none of these patients met even Dr. Geier's profile for Lupron therapy.”

The Board also found that Dr. Geier

prescribed chelation therapy to patients who failed to display the need for chelation. He began this therapy without documenting a reason for the treatment and without adequate documented informed consent. He violated the standard of quality care by so doing. He also violated the standard of quality care by prescribing for patients ... a drug not approved for any use in the United States.

(Footnotes omitted). The Board found that Dr. Geier “egregiously violated basic medical standards in his treatment of these patients by not evaluating them properly, lying about which drug he was prescribing, and failing to evaluate in any realistic medical way whether his intensive and very expensive treatment was effective.”

The Board concluded that Dr. Geier violated multiple provisions of the Act, stating as follows:

Dr. Geier committed unprofessional conduct in the practice of medicine within the meaning of [HO] § 14–404(a)(3)(ii) when he had parents sign a consent form that falsely implied that he was conducting an experimental protocol approved by an Institutional Review Board [ (“IRB”) ] when in fact that review board was, as the ALJ put it, “a façade covering the intentions of a group that did not believe that they were bound by federal or state law and had no intention of being so bound.” ^{[ 4 ]} He committed further unprofessional conduct when he had a parent sign a consent form for the use of one drug for chelation therapy when in fact another drug, a drug not approved for use in the United States, was intended to be used and was in fact used. His violations of the standard of care, especially his treating of some patients without examining them and his reaching diagnoses in the absence of required diagnostic tests, were so egregious as to amount to unprofessional conduct in themselves.

By willfully reporting false credentials when he applied for the renewal of his medical license, Dr. Geier made a willfully false statement in the practice of medicine within the meaning of [HO] § 14–404(a)(11).

By failing to properly evaluate patients before treating them with an intensive regimen of drug therapy, by providing the parents with inadequate or falsified consent forms, by failing to properly evaluate whether his treatment was working, by ordering continued therapy to a patient for whom there was no possibility of monitoring the effects, and by failing to

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