Md. Bd. of Physicians v. Geier

• Decision Date: 23 January 2017
• Docket Number: No. 11, Sept. Term, 2016,11, Sept. Term, 2016
• Parties: MARYLAND BOARD OF PHYSICIANS, et al. v. Mark R. GEIER, Personal Representative of the Estate of Anne Geier, et al.
• Court: Court of Special Appeals of Maryland

451 Md. 526

154 A.3d 1211

MARYLAND BOARD OF PHYSICIANS, et al.

v.Mark R. GEIER, Personal Representative of the Estate of Anne Geier, et al.

No. 11, Sept. Term, 2016

Court of Appeals of Maryland.

January 23, 2017

Motion for Reconsideration by Office of the Attorney General Granted February 21, 2017

Motion for Reconsideration by Mark R. Geier Denied in Part, Granted in Part March 27, 2017

Julia Doyle Bernhardt, Asst. Atty. Gen. (Jennifer L. Katz, Nicholas E. Johansson, Kara Wilcox Mundy, Asst. Atty. Gen., Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellants.

James M. Love (Titus, Hillis, Reynolds, Love, Dickman, & McCalmon, P.C., Tulsa, OK; Francis John Kreysa, Francis John Kreysa, P.C., Gaithersburg, MD), on brief, for appellees.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Hotten, J.

We consider whether a party asserting the absolute quasi-judicial privilege and the deliberative process (executive) privilege may properly appeal three orders from the circuit court prior to a final judgment, and whether those privileges prevent the admissibility of certain discovery. Respondents, Dr. Mark Geier ("Dr. Geier"), David Geier ("Mr. Geier") and Anne Geier ("Ms. Geier"),¹ filed a complaint against Petitioners² "), in the Circuit Court for Montgomery County, alleging that Petitioners invaded their privacy by publicizing their private medical information in a cease and desist order that was issued during disciplinary proceedings brought by Petitioners against Dr. Geier and Mr. Geier.

During discovery, the circuit court entered three separate orders that: (1) granted Respondents' sixth motion for sanctions against Petitioners regarding the disclosure of audiotapes of Petitioners' deliberations; (2) denied Petitioners' motion for reconsideration of a default order on liability for a series of discovery failures; and (3) denied Petitioners' motion for a protective order from Respondents' sixth motion to compel documents, which required Petitioners to disclose their personal financial information to Respondents. Petitioners appealed all three interlocutory orders, and this Court granted certiorari.

For the reasons that follow, we grant Respondents' motion to dismiss as it relates to the orders denying Petitioners' motions for reconsideration and for a protective order; deny Respondents' motion to dismiss as it relates to the order granting Respondents' sixth motion for sanctions; reverse and vacate the order granting Respondents' sixth motion for sanctions; and remand the case to the circuit court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

I. Board's Administrative Proceedings Against Respondents Mark R. Geier and David Geier

a. Mark Geier

On October 3, 2006, the Board notified Dr. Geier that it had received a complaint against him regarding his use of the drug Lupron³ to treat autistic children. The complaint alleged that 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 summarily suspended Dr. Geier's right to practice medicine, asserting that the "public health, safety or welfare imperatively required emergency action" due to certain medical practices engaged in by Dr. Geier.⁴ On May 16, 2011, the Board formally charged Dr. Geier with violations of the Medical Practice Act, Md. Code (Repl. Vol. 2014), §§ 14–401 et seq. of the Health Occupations Article ("Health Occ.").

On September 15, 2011 the Board issued amended charges against Dr. Geier for prescribing medicine to family members while his license was suspended. After amending its complaint, the Board charged Dr. Geier with: (1) unprofessional conduct in the practice of medicine; (2) willfully making or filing a false report or record in the practice of medicine; (3) willfully failing to file or record any medical record as required under law; (4) practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine; (5) gross overutilization of health care services; (6) failing to meet standards, as determined by peer review, for the delivery of quality medical care; and (7) failing to keep adequate medical records.

On September 26, 2011, after six days of hearings,⁵ an Administrative Law Judge ("ALJ") issued a proposed decision upholding the summary suspension of Dr. Geier's license. On March 13, 2012, following an additional five days of hearings, the ALJ issued a 126–page proposed decision, recommending that the charges against Dr. Geier be upheld,⁶ and that his license be revoked.

Dr. Geier took exception to the ALJ's findings, but on August 22, 2012, the Board issued a final decision revoking his license. Dr. Geier petitioned for judicial review, and the Circuit Court for Montgomery County affirmed the Board's revocation on April 9, 2014. Dr. Geier moved to alter or amend the court's ruling, but the motion was denied. Dr. Geier then noted an appeal to the Court of Special Appeals, and that Court, in a reported opinion, affirmed the Board's decision. See Geier v. Md. State Bd. o f Physicians , 223 Md.App. 404, 116 A.3d 1026 (2015).

b. David Geier

On May 16, 2011, the Board also charged Dr. Geier's son, Mr. Geier, for practicing medicine without a license in violation of Health Occ. § 14–601.⁷ On March 7, 2012, an ALJ recommended that the charges against Mr. Geier be dismissed. On July 30, 2012, however, the Board rejected the ALJ's recommendation and many of the judge's findings, concluding that Mr. Geier had practiced medicine without a license because he diagnosed a patient, determined which blood tests the patient required, and ordered those tests. The Board imposed a $10,000 fine.

Mr. Geier petitioned the Circuit Court for Montgomery County for judicial review of the Board's findings, and the circuit court affirmed the Board's decision on April 25, 2014. Mr. Geier then appealed to the Court of Special Appeals, and that Court, in an unreported opinion dated July 31, 2015, also affirmed the Board.

c. The Disclosure of the Respondents Personal Medical Information

On January 25, 2012, during the pendency of both disciplinary proceedings, the Board issued a cease and desist order against Dr. Geier, accusing him of practicing medicine while his license had been summarily suspended. The order, posted to the Board's website and viewable by the public, specifically alleged that Dr. Geier had written prescriptions for all three Respondents. The order also detailed the Respondents' confidential medical information, identified the specific medications that Dr. Geier allegedly prescribed to each person, and described the medical conditions that each medication treated.⁸

Petitioners promptly removed the confidential information from the cease and desist order in response to Respondents' protest. Petitioners also issued an amended cease and desist order that deleted the references to the patients and the medications that Dr. Geier allegedly prescribed for them. In the interim between the initial publication and the Petitioners' remedial actions, other persons viewed and commented about the Respondents' confidential medical information, and those comments are still accessible on the internet.

Ultimately, an ALJ rejected the charge that Dr. Geier had written any prescriptions in violation of the summary suspension order issued by Petitioners.

II. Respondents' Civil Action Against Petitioners

a. The Complaint

On December 12, 2012, while Dr. Geier and Mr. Geier were pursuing judicial review of the Board's adverse rulings, Respondents filed a three-count complaint in the Circuit Court for Montgomery County against Petitioners. The complaint alleged that by publicizing the January 25th cease and desist order that contained the Respondents' confidential medical information, Petitioners deprived them of their constitutional right to privacy; violated the Maryland Confidentiality of Medical Records Act, Md. Code (1982, 2009 Repl. Vol.), §§ 4–301 et seq. of the Health General Article ; and invaded their privacy by giving unreasonable publicity to private facts. The complaint also alleged that Petitioners "acted with ill will and with the intent to injure [Respondents] by exposing Dr. Geier's personal medical information and that of his wife and son." Respondents requested compensatory damages, as well as three million dollars in punitive damages.

Petitioners moved to dismiss the complaint for failure to state a claim upon which relief could be granted, asserting they had absolute quasi-judicial immunity from suit under Ostrzenski v. Se i gel , 177 F.3d 245 (4th Cir. 1999). Following a hearing on July 10, 2013, the circuit court dismissed the Confidentiality of Medical Records Act claim, finding that the statute did not create a private cause of action. The circuit court allowed the constitutional and invasion of privacy claims to proceed, finding that the record was inadequate to evaluate the applicability of any immunities at such an early stage of the proceedings.

b. Discovery

Following the circuit court's ruling that allowed two of Respondents' claims to proceed, Respondents sought extensive discovery, attempting to uncover evidence demonstrating Petitioners acted out of animosity in publishing the cease and desist letter. Respondents sought information regarding the specific circumstances immediately surrounding the Petitioners' disclosure of their confidential medical information, as well as documents and testimony that revealed Petitioners' decisional process in the administrative proceedings against them. Respondents also sought communications between Petitioners and their counsel that...