Kim v. Maryland State Bd. of Physicians

• Decision Date: 29 November 2011
• Docket Number: 2011.,No. 1,Sept. Term,1
• Citation: 423 Md. 523,32 A.3d 30
• Parties: Charles Y. KIM v. MARYLAND STATE BOARD OF PHYSICIANS.
• Court: Maryland Court of Appeals

32 A.3d 30

423 Md. 523

Charles Y. KIM

v.MARYLAND STATE BOARD OF PHYSICIANS.

No. 1

Sept. Term

2011.

Court of Appeals of Maryland.

Nov. 29, 2011.

Frederick W. Goundry, III (Varner & Goundry, Frederick, MD), on brief, for petitioner.

Thomas W. Keech, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS, BARBERA, JJ.BARBERA, J.

Maryland Code (1981, 2009 Repl. Vol.), § 14–404 of the Health–Occupations Article, provides, inter alia, that the Board of Physicians (“Board”) has the authority to sanction a physician licensed in Maryland if the licensee: “is guilty of: Immoral ... or unprofessional conduct in the practice of medicine,” § 14–404(a)(3); “Willfully makes or files a false report or record in the practice of medicine,” § 14–404(a)(11); or “Willfully makes a false representation when seeking or making application for licensure or any other application related to the practice of medicine,” § 14–404(a)(36). This case calls upon us to determine whether the Board erred in finding that Petitioner Charles Y. Kim violated each of the above subsections of § 14–404,¹ when he falsely indicated on an application for renewal of his license that he was not involved in a medical malpractice action. For the reasons that follow, we hold that the Board committed no error.

I.

Petitioner came to the United States in 1973. He received his initial license to practice medicine in Maryland in 1977. He practices in the area of Obstetrics and Gynecology and is board certified.

In June 2005, a medical malpractice lawsuit was filed in the Circuit Court for Frederick County, naming Petitioner as a defendant (“the Wagner case”). Petitioner answered the complaint in July 2005, and was deposed in November 2005. The Wagner case was pending when, on February 23, 2006, Petitioner filed an application for renewal of his privileges at Frederick Memorial Hospital. The application asked: “Have any professional liability or malpractice claims been made against you during the past two years?” Petitioner initially marked “No” in response to that question but then amended his response and marked “Yes.” Petitioner also submitted a handwritten addendum to the application. The addendum provided additional information about three malpractice matters: two concluded matters and the Wagner case, which was scheduled to be tried in November 2006.

Then, on August 15, 2006, Petitioner filed with the Board an application for Renewal of Medical License (“the application”). The application included three questions relevant to the present matter, to all of which Petitioner responded “No.”

CHARACTER AND FITNESS QUESTIONS

6. The following questions pertain to the period since July 1, 2004. If this is your first renewal, these questions apply to the period commencing with the date of your initial licensure or reinstatement.

SINCE JULY 1, 2004

* * *

m. Have you been named as a defendant in a filing or settlement of a medical malpractice action?

* * *

If you answered “YES” to any of questions 6(a) through (q), attach a separate page with a complete explanation of each occasion. Each attachment must have your name in print, signature and date.

* * *

13. HEALTH CARE ALTERNATIVE DISPUTE RESOLUTIONS QUESTIONS

The following questions pertain to the period since July 1, 2004. If this is your first renewal, these questions apply to the period commencing with the date of your initial licensure or reinstatement.

* * *

b. Have you, your partners or associates or anyone in your immediate family or household, been sued or had a claim filed against you or any of them for medical malpractice?

* * *

f. Are you, or any member of your immediate family or household, currently a party in a medical malpractice case?

In November 2006, Petitioner's counsel was attempting to schedule a Case Resolution Conference (“CRC”),² for an unrelated matter. During the conversation with the Assistant Attorney General who was prosecuting the matter on behalf of the Board, Petitioner's counsel revealed that Petitioner was scheduled to be in court on the date proposed for the CRC in that unrelated matter. That disclosure led to further investigation by the Board, which learned that Petitioner, despite the responses provided in his license renewal application, had been involved in a malpractice action at the time he submitted his application in August 2006.

On March 5, 2007, the Board charged Petitioner with violating the three subsections of § 14–404 that we mentioned at the outset: subsection (a)(3), which prohibits unprofessional conduct in the practice of medicine; (a)(11), which prohibits the willful making of a false report or record in the practice of medicine; and (a)(36), which prohibits the willful making of a false representation when making an application for licensure or any other application related to the practice of medicine. The Board requested that Petitioner be reprimanded, take a course on ethics, and be required to pay a $10,000 fine.

Administrative Proceedings

Petitioner asked for and received a hearing before an Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings. Petitioner moved to dismiss the charges, asserting that the Board impermissibly pursued the charges based on confidential information received from Petitioner's counsel while scheduling the unrelated CRC. Petitioner relied in support of his argument on COMAR 10.32.02.03.C(7)(d), which provides: “Except for consideration of a proposed resolution of a case achieved through the CRC, the Board may not make later use of any commentary, admissions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” (Emphasis added.)

The ALJ denied the motion, in a written order, on three grounds: knowledge of the existence of the Wagner case was available from two other sources, the Maryland Health Claims Arbitration Office and the public judiciary website; the information Petitioner's counsel had disclosed was unrelated to the merits of the CRC proceedings; and, in any event, the Board had relied, not on counsel's disclosure but rather, on information discovered through its own investigation and obtained from other sources.

The merits hearing took place on July 12, 2007. The compliance analyst who reviewed Petitioner's renewal application testified that it was routine for the Board to obtain all filings from the Health Claims Arbitration Office and review renewal applications filed during the pendency of a Board investigation. The analyst further testified that information provided on renewal applications is verified through information obtained from the Health Claims Arbitration Office. She became aware of the medical malpractice claim against Petitioner before he renewed his application, and the Health Claims Arbitration filing (in the Wagner case) was part of the Board's record prior to the investigation of the unrelated matter in 2006. The analyst also testified that she was prompted to review Petitioner's application after learning from the Assistant Attorney General for the Board that Petitioner would be in circuit court in December 2006. She then searched for Petitioner's name on the judiciary case information website.

Petitioner testified that he attended medical school in Korea and then came to the United States in 1973. He completed a three-year residency, in English, and received his Maryland license to practice medicine in 1977. He passed separate written and oral exams, both administered in English, in 1983. He speaks English on a regular basis with his patients and colleagues. He added, though, that he has some difficulty understanding certain aspects of the English language, “especially legal or written.”

Petitioner admitted that he had knowledge of the Wagner case since 2005, had met with his attorney, and was deposed in connection with that matter on November 9, 2005. Petitioner explained his responses to the questions on the license renewal application. Beginning with question 6(m), Petitioner testified that he did not intend to deceive the Board; rather, he had read “filing or settlement” as “filing and settlement” (emphasis added); moreover, because the Wagner case had not settled, he believed the correct response to question 6(m) was “no.” As for question 13(f), Petitioner testified that he understood the question to pertain only to family or household members, not himself. Petitioner further testified that he failed to respond to questions 21 through 31 when he filed the application, and, when it was returned to him, his wife assisted him in completing the remainder of the application. Petitioner acknowledged that he signed the affirmation at the end of the renewal application.

Petitioner's license renewal application was admitted into evidence. Also admitted was Petitioner's application for renewal of privileges at Frederick Memorial Hospital, which predated his license renewal application and acknowledged the pending Wagner case.

The ALJ issued a Proposed Decision on November 29, 2007. The ALJ determined that Petitioner's conduct was unprofessional and occurred “in the practice of medicine,” because the information withheld in the license renewal application involved the “delivery of patient care in those matters that led to the filing of a malpractice claim.” The ALJ also found that Petitioner knew of the pending malpractice case and had a duty to disclose that information in the license renewal application. The ALJ reasoned that, because the Board relies on the information provided to assess physicians' fitness, the failure to disclose information regarding pending malpractice claims constitutes “serious misconduct that may involve substantial risk of harm to patients, and may diminish the standing of the medical profession as caregivers.” The ALJ further concluded that the conduct was...