Md. Bd. of Physicians v. Geier

• Decision Date: 01 October 2015
• Docket Number: No. 722 and 2256, Sept. Term, 2014,722 and 2256, Sept. Term, 2014
• Parties: MARYLAND BOARD OF PHYSICIANS, et al. v. Anne GEIER, et al.
• Court: Court of Special Appeals of Maryland

225 Md.App. 114

123 A.3d 601

MARYLAND BOARD OF PHYSICIANS, et al.

v.Anne GEIER, et al.

No. 722 and 2256, Sept. Term, 2014

Court of Special Appeals of Maryland.

Oct. 1, 2015.

Julia D. Bernhardt (Jennifer L. Katz, Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellant.

Francis J. Kreysa, Gaithersburg (James M. Love, Titus, Hillis, Reynolds, Love, Dickman & McCalmon, PC, Tulsa, OK), on the brief, for Appellee.

Panel: ARTHUR, FRIEDMAN, ARRIE W. DAVIS (Retired, Specially Assigned), JJ.

Opinion

ARTHUR, J.

During a disciplinary proceeding against appellee Mark Geier, M.D., the Maryland Board of Physicians publicly disclosed confidential medical information concerning Dr. Geier, his wife Anne, and their son David. David Geier was the subject of a separate disciplinary proceeding at the time of the disclosures.

The Geiers responded to the disclosures by accusing the Board, its 22 members, its administrative prosecutor, and two staff members of abuse of power, invasion of privacy, and acting maliciously and vindictively. They filed suit in the Circuit Court for Montgomery County.

In discovery, the Geiers attempted to uncover why the Board¹ publicly disclosed their confidential medical information. The Geiers also attempted to establish that the disciplinary proceedings against them were motivated by malice. Although the Geiers ordinarily could not have obtained discovery about the Board's decisional processes in the disciplinary proceedings against them (see, e.g., Montgomery County v. Stevens, 337 Md. 471, 481, 654 A.2d 877 (1995) ; Public Serv. Comm'n v. Patuxent Valley Conservation League, 300 Md. 200, 214, 477 A.2d 759 (1984) ), they attempted to discover that information in this separate civil case and then to use it in the disciplinary proceedings. Their discovery requests collided with the public interest in protecting the confidentiality of governmental communications of “an advisory or deliberative nature,” Hamilton v. Verdow, 287 Md. 544, 563, 414 A.2d 914 (1980), as well as the general statutory prohibition on the discoverability and admissibility of documents from the Board's investigations and hearings. Md.Code (1981, 2014 Repl.Vol.) § 14–410 of the Health Occupations Article (“HO”).

Citing the deliberative privilege, the general statutory prohibition against the discovery of the records of its investigatory proceedings, the attorney-client privilege, and the work-product protection, the Board refused to produce much of the information that the Geiers had requested in discovery. The circuit court granted one of the Geiers' several motions to compel, and the Board took an interlocutory appeal from that discovery order (No. 722).

After this Court stayed part of the discovery order pending the appeal, the Geiers moved for discovery sanctions because of the Board's other failures of discovery, most notably including the failure to produce a properly prepared designee at a duly noted deposition. The circuit court imposed the sanction of a default judgment on the issue of liability, and the Board took a second interlocutory appeal (No. 2256), which we consolidated with the first.

Questions Presented

The Board's consolidated appeal presents several questions for our review. We quote the single question presented in No. 722 and rephrase and consolidate the questions posed in No. 2256:

1. Does the circuit court's order compelling disclosure violate the Board's absolute quasi-judicial immunity, its common law and statutory privileges, and §§ 1–401(d) and 14–410 of the Health Occupations Article ?

2. Did the court err by entering an order of default against the Board on the issue of liability?²

The Geiers have moved to dismiss both appeals on the ground that the order compelling discovery and the order of default are unappealable interlocutory orders, and not final judgments from which an appeal will lie.

In the unusual circumstances of this case, we conclude that the first of the two appeals is properly before us, because the requested discovery implicates the decisional processes of high-level government administrators and is thus eligible for an immediate appeal under the collateral order doctrine. See, e.g., Stevens, 337 Md. at 479–80, 654 A.2d 877 ; Patuxent Valley, 300 Md. at 210, 477 A.2d 759. On the merits, we vacate the discovery order and remand for further proceedings, because the circuit court did not correctly evaluate some of the Board's statutory and common-law privileges, including the deliberative privilege.

On the other hand, we conclude that the order of default is not properly before us. Nonetheless, because the decision on the discovery order may indirectly affect the premises for the order of default, the circuit court, upon a proper motion, should reevaluate the propriety of that interlocutory order on remand.See Md. Rule 2–602(a) (stating that, in general, “an order or other form of decision, however designated, that adjudicates ... less than an entire claim ... is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties”); Gertz v. Anne Arundel County, 339 Md. 261, 272–73, 661 A.2d 1157 (1995) (an interlocutory order “is not a final judgment and may be revised at any time before the entry of a final judgment”).

Factual and Procedural History

Dr. Geier is a physician who advocates the theory that certain vaccines cause autism

in genetically susceptible children. Dr. Geier's son, David Geier, is not a physician, but has assisted his father in his research concerning that theory. In a case concerning the admissibility of expert testimony, the Court of Appeals has held that “Dr. Geier's genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it.” Blackwell v. Wyeth, 408 Md. 575, 618, 971 A.2d 235 (2009).

In protracted and contentious disciplinary proceedings, the Board has established that Dr. Geier committed numerous violations of the Medical Practice Act, HO §§ 14–401 et seq., in his treatment of autistic children. Geier v. Maryland State Bd. of Physicians, 223 Md.App. 404, 415–17, 116 A.3d 1026 (2015). The Board has also established that, while assisting in the treatment of autistic children in Dr. Geier's practice, David Geier practiced medicine without a license. David A. Geier v. Maryland Bd. of Physicians, No. 709, Sept. Term 2014, slip op. at 8–10 (filed July 31, 2015).

The Geiers contend that the Board has acted against them out of a desire to punish them and to discredit their research.

A. The Disciplinary Proceeding against Dr. Geier

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.” On May 16, 2011, the Board formally charged Dr. Geier with violations of the Medical Practice Act. As later amended, the charges included unprofessional conduct in the practice of medicine; willfully making or filing a false report or record in the practice of medicine; willfully failing to file or record any medical record as required under law; practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine; gross overutilization of health care services; failing to meet standards, as determined by peer review, for the delivery of quality medical care, and failing to keep adequate medical records. Geier, 223 Md.App. at 413–14, 116 A.3d 1026.

In September 2011, after six days of hearings, an administrative law judge (“ALJ”) issued a proposed decision upholding the summary suspension of Dr. Geier's license. In March 2012, after an additional five days of hearings, the ALJ issued a 126–page proposed decision, in which she recommended that the Board uphold the charges of unprofessional conduct, willfully making or filing a false report or record, failing to meet standards for the delivery of quality medical care; and failing to keep adequate medical records. The ALJ also recommended that Dr. Geier's license be revoked. Id. at 414, 116 A.3d 1026.

Dr. Geier took exceptions, but on August 22, 2012, the Board issued a final decision ordering that his license be revoked. On a petition for judicial review, the Circuit Court for Montgomery County affirmed on April 9, 2014. Id. at 418, 116 A.3d 1026. On appeal, this Court affirmed as well. Id. at 412, 116 A.3d 1026.³

B. The Disciplinary Proceeding against David Geier

Meanwhile, on May 16, 2011, the Board charged David Geier with practicing medicine without a license in violation of HO § 14–601. On March 7, 2012, an ALJ recommended that the charges be dismissed. On July 30, 2012, however, the Board rejected the recommendation (and many of the ALJ's findings), concluded that Mr. Geier had practiced medicine without a license, and imposed a fine of $10,000. On a petition for judicial review, the Circuit Court for Montgomery County affirmed on April 25, 2014. In an unreported opinion dated July 31, 2015, this Court affirmed as well.⁴

C. The Disclosure of the Geiers' Medical Information

On January 25, 2012, while both of these disciplinary proceedings were pending, the Board issued a cease and desist order that accused Dr. Geier of practicing medicine at a time when his license had been summarily suspended. The order, which was posted to the Board's website and could be viewed by the public, specifically alleged that Dr. Geier had written prescriptions for himself, his son David, and his wife Anne. The order also detailed the Geiers' confidential medical information, identifying the specific medications that Dr. Geier had allegedly prescribed for each person and describing the medical conditions that each medication typically treated. Rather than reproduce the confidential medical information, we shall simply state that it was highly personal in nature and not of the sort that an ordinary person would want to have disseminated to the public.

Although the...