McDonnell v. Commission on Medical Discipline

• Decision Date: 01 September 1984
• Docket Number: No. 25,25
• Citation: 301 Md. 426,483 A.2d 76
• Parties: , 44 A.L.R.4th 237 Edmond J. McDONNELL v. COMMISSION ON MEDICAL DISCIPLINE. ,
• Court: Maryland Court of Appeals

Page 426

301 Md. 426

483 A.2d 76, 44 A.L.R.4th 237

Edmond J. McDONNELL v. COMMISSION ON MEDICAL DISCIPLINE.

No. 25, Sept. Term, 1984.

Court of Appeals of Maryland.

Nov. 2, 1984.

Shale D. Stiller, Baltimore (Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief), for appellant.

Susan K. Gauvey, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Martha H. Somerville, Staff Atty., Baltimore, on the brief), for appellee.

Argued Before MURPHY, C.J., and SMITH, ELDRIDGE, COLE and COUCH, JJ.

MURPHY, Chief Judge.

The question presented in this medical disciplinary case is whether a physician's attempt to intimidate adverse witnesses scheduled to testify against him at a medical malpractice trial constitutes "[i]mmoral conduct of a physician in his practice as a physician" in violation of Maryland Code (1957, 1980 Repl.Vol.), Article 43, § 130(h)(8).

I.

In 1975, Dr. Edmond J. McDonnell, a Maryland orthopedic surgeon, was sued for medical malpractice by Alvin Meyer, a former patient. Shortly before trial, which was scheduled for May 9, 1977, Meyer retained Drs. Robert Nystrom and Frank Pizzi to testify as medical experts against Dr. McDonnell. Counsel for Dr. McDonnell thereafter quickly deposed both witnesses. It was not until after trial had begun that the depositions were transcribed and Dr. McDonnell was able to read them. He expressed concern to his lawyer at that time that the physician witnesses were inexperienced, had never examined Meyer, and possessed little knowledge of the surgical procedure involved (use of Harrington instrumentation for fixation of the spine). After discussion with his attorney, Dr. McDonnell decided to communicate to Drs. Nystrom and Pizzi his intention of having transcripts of their depositions disseminated to their local and national medical societies. According to Dr. McDonnell, his purpose in doing so was to make certain that the testimony of the witnesses would be honest, reasonable and medically accurate. To this end, Dr. McDonnell initiated a phone call to Dr. Robert Keyser whom he knew to be highly regarded by Dr. Nystrom and from whom Dr. Nystrom had received his training in orthopedic surgery. For the same purpose, Dr. McDonnell also initiated a phone call to Dr. Thomas Langfitt, a physician who had trained Dr. Pizzi in neurosurgery and whom Dr. McDonnell knew to be highly respected by Dr. Pizzi. Dr. McDonnell's message was thereby conveyed to Drs. Pizzi and Nystrom during the progress of the malpractice trial. While each of the witnesses felt intimidated by the phone calls, they nevertheless testified against Dr. McDonnell at the trial. Upon learning of the phone calls, the trial judge chastised Dr. McDonnell for his misconduct, although he found no improper intent on the physician's part.

The jury returned a verdict in Dr. McDonnell's favor. On appeal, the judgment was reversed for error in the jury instructions with respect to Dr. McDonnell's attempt to intimidate the two expert witnesses. Meyer v. McDonnell, 40 Md.App. 524, 392 A.2d 1129 (1978). In its opinion in that case, the Court of Special Appeals characterized Dr. McDonnell's actions as "outrageous" and as "tampering" with the witnesses. The instant medical disciplinary proceedings were thereafter instituted against Dr. McDonnell.

II.

At the time of the disciplinary proceedings in this case, the Commission on Medical Discipline, a part of the Department of Health and Mental Hygiene, was authorized by Art. 43, § 130(h) to hear charges of "unprofessional conduct" brought against a physician on any of nineteen enumerated grounds; and to "reprimand a physician or place him on probation, revoke or suspend his license, or dismiss the charges." ¹ The charge against Dr. McDonnell under § 130(h)(8)--"[i]mmoral conduct of a physician in his practice as a physician"--was heard by the Commission on April 7, 1981. After an evidentiary hearing, the Commission found as a fact that even if Dr. McDonnell did not intend to influence the testimony of Drs. Nystrom and Pizzi, he should have known that his conduct in having Drs. Keyser and Langfitt contact the two medical experts "was clearly intimidating and was improper." The Commission concluded as a matter of law that Dr. McDonnell violated § 130(h)(8) as charged and reprimanded him.

On Dr. McDonnell's appeal to the Baltimore City Court (now the Circuit Court for Baltimore City), that court held that the Commission's decision was based on an erroneous application of the law to the facts found by it and thus required reversal. The court said that under applicable dictionary definitions Dr. McDonnell's conduct was not immoral, it being neither "so inherently evil that one's conscience recognizes it as wrong or [because] community standards condemn it as wrong." It found a complete absence of evidence of immoral conduct on Dr. McDonnell's part. The court also held that the Commission reached an erroneous legal conclusion when it found that Dr. McDonnell's conduct occurred "in his practice as a physician." It said that conduct, to fall within § 130(h)(8), must be shown to have a "detrimental effect" on the performance of a physician's activities in the practice of medicine. The court concluded that

"the censured conduct arose only after Dr. McDonnell and his patient were in the adversary position of defendant and plaintiff in a malpractice action. The court has no difficulty in finding that the question of whether or not it was proper to contact witnesses in a law suit was primarily an issue related to the practice of law and was clearly not a decision made by Dr. McDonnell in his practice as a physician."

The Court of Special Appeals, in reversing the judgment of the circuit court, concluded that the Commission, which consisted primarily of physicians, had special expertise in assessing "the effect that the telephone calls initiated by Dr. McDonnell would have upon the prospective expert witnesses for Meyer." Com'n on Medical Discipline v. McDonnell, 56 Md.App. 391, 467 A.2d 1072 (1983). It said that "the seemingly innocuous message that transcripts of [the expert witnesses'] testimony would be forwarded to appropriate medical societies, delivered by the recipients' mentors, would naturally tend to intimidate Drs. Nystrom and Pizzi and constrict their testimony." 56 Md.App. at 402, 467 A.2d 1072. The intermediate appellate court said that the Commission had sufficient evidence before it to support a finding that Dr. McDonnell "initiated the telephone calls in question with the intention of intimidating witnesses in a lawsuit and constricting their testimony against him"; that such conduct "is clearly morally wrong" and "amounts to an endeavor to obstruct justice," a crime involving moral turpitude. Id. 56 Md.App. at 403, 467 A.2d 1072. The court disagreed with the circuit court's conclusion that the asserted immoral conduct was not committed by Dr. McDonnell "in his practice as a physician." The court rejected the argument that a physician's conduct, to be immoral "in his practice as a physician," must be shown to have had a detrimental effect upon the performance of such activity. To come within the proscription of § 130(h)(8), the court held that

"the physician's misconduct need not be confined to his actions in diagnosing or treating a patient but must be directly related to some aspect of the practice of medicine." Id. 56 Md.App. at 404, 467 A.2d 1072.

What was involved, the court emphasized, was Dr. McDonnell's effort to suppress evidence that he failed to use adequate skill in treating a patient, a matter which implicated his professional reputation. Affording deference to the Commission's expertise in interpreting that which constitutes or is in "the practice of medicine," the court concluded that the Commission could legally find "that a physician's attempt to protect and preserve his professional reputation is conduct 'in his practice as a physician' because his future practice may well depend upon his reputation." Id. We granted certiorari to consider the important issue involved in the case.

III.

Before us, Dr. McDonnell admits that his actions were wrong, improper and injudicious. But that is not the issue, he asserts; rather, the primary question is whether his actions were those of "a physician in his practice as a physician," as charged in the disciplinary petition. ² He maintains that his misconduct had nothing to do with the practice of medicine. Moreover, he notes that the patient-physician relationship which he had with Meyer terminated long before the Meyer trial. He argues that it is not any immoral conduct which subjects a physician to sanction under § 130(h)(8) but only that conduct which reflects adversely upon the physician's fitness to practice medicine. ³ No evidence was adduced, he says, to show that his conduct adversely affected his ability or fitness to practice medicine.

The Attorney General argues that Dr. McDonnell's misconduct was inextricably related to the practice of medicine and consequently is within the purview of § 130(h)(8). He contends that the provisions of this subsection encompass not just a physician's technical competence in the practice of medicine but moral character and integrity considerations as well. He relies on a raft of cases from other jurisdictions which, he suggests, indicate that acts done by a physician which are not directly in the course of patient care and treatment, but which are otherwise connected to a present or former patient-physician relationship, fall within the ambit of medical disciplinary provisions similar to § 130(h)(8). The Attorney General maintains that Dr. McDonnell's misconduct occurred in the utilization of his medical office and while he was acting as a physician and thus occurred "in his practice as a physician." He stresses that Dr. McDonnell's actions were calculated to protect his professional reputation and ultimately his ability to practice and accept...