Mesbahi v. Md. State Bd. of Physicians.

• Court: Court of Special Appeals of Maryland
• Citation: 201 Md.App. 315,29 A.3d 679
• Docket Number: 2009.,Sept. Term,No. 2791,2791
• Parties: Kathy MESBAHI, et al.v.MARYLAND STATE BOARD OF PHYSICIANS.
• Decision Date: 30 September 2011

201 Md.App. 315
29 A.3d 679

Kathy MESBAHI, et al.
v.
MARYLAND STATE BOARD OF PHYSICIANS.

No. 2791

Sept. Term

2009.

Court of Special Appeals of Maryland.

Sept. 30, 2011.

[29 A.3d 682]

Bradford J. Roegge (James M. Brault, Brault Graham, LLC, on the brief), Rockville, MD, for Appellant.

[29 A.3d 683]

David E. Wagner (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: ZARNOCH, MATRICCIANI, J. FREDERICK SHARER, (Retired, Specially Assigned), JJ.ZARNOCH, J.

[201 Md.App. 321] Appellants and cross-appellees, Dr. Kathy Mesbahi, Mina Nazemzadeh, and Aghdas Rahmati, challenge a judgment of the Circuit Court for Montgomery County upholding the decision of the Maryland Board of Physicians (“the Board”), appellee/ cross-appellant. The Board sanctioned Dr. Mesbahi for aiding an unauthorized person in the practice of medicine and unprofessional conduct in the practice of medicine, and the remaining appellants for practicing medicine without a license. In a cross-appeal, the Board challenges the circuit court's finding that certain sanctions imposed against appellants/ cross-appellees were arbitrary and capricious. The circuit court remanded the case to the Board with instructions to articulate its reasons for imposing those sanctions.

QUESTIONS PRESENTED

Appellants ¹ present the following questions for appellate [201 Md.App. 322] review: ²

1. Did the Board erroneously rely on Declaratory Ruling 00–1 in concluding that laser hair removal is a surgical act constituting the practice of medicine?

2. Did the Board deprive appellants of their constitutional right to due process by failing to adequately notify them and the medical community about the issuance of Declaratory Ruling 00–1?

3. Was the Board required to prove that appellants knowingly violated Declaratory Ruling 00–1 to impose the sanctions against them?

In its cross appeal, appellee presents an additional question for our review:

4. Did the circuit court err as a matter of law in remanding the case to the Board in order for the Board to articulate its reasoning for exercising its discretionary authority to determine and impose fines and the cease and desist order as sanctions for violating the Maryland Medical Practice Act, Health Occ. §§ 14–101–14–702 ...?

For the following reasons, the decision of the circuit court is affirmed in part and reversed in part.

STATEMENT OF FACTS

Dr. Mesbahi has been licensed to practice medicine in Maryland since 1982 and is board-certified in obstetrics and gynecology. She maintains offices in Gaithersburg and Rockville.³ In 1999, Dr. Mesbahi purchased her first laser machine and began to perform laser hair removal in her Rockville office. Dr. Mesbahi purchased another hair removal laser in June 2003 and signed a written sales quote certifying that:

[201 Md.App. 323] [T]he [laser] medical device will be purchased by or on the order of a licensed practitioner, and used only by either a licensed physician or a licensed practitioner

[29 A.3d 684]

as defined by applicable state law. The regulations defining who can own and use a medical device vary from state to state and are subject to change. It is the buyer's responsibility to ensure that all applicable state laws are followed.Dr. Mesbahi later signed a sales contract and initialed the page of the contract which contained the following provision:

Seller may provide educational sessions on the system ... provided, however, that the Buyer is solely responsible for the use and operation of the device in accordance with all applicable law and regulations, and for confirmation of all user qualifications. Buyer acknowledges improper use of the product carries a risk of injury to patients. Buyer represents and warrants that he, she, or it is in compliance with any and all applicable Federal, state, and local laws and regulations.

Both of Dr. Mesbahi's sisters worked in her Rockville office, Nazemzadeh as the business manager and Rahmati as the office receptionist. Neither sister is licensed as a physician, nurse practitioner, or physician's assistant. Nazemzadeh has an MBA and has been working as Dr. Mesbahi's office manager for at least twenty years. Rahmati has a bachelor's degree in “clinical lab” from Iran and worked as a hairdresser for several years before going to work as a receptionist for Dr. Mesbahi in 1989. In 2002, Nazemzadeh and Rahmati were trained by the laser machine manufacturer's representative and certified competent to perform laser hair removal procedures. Between early 2003 and August of 2005, Nazemzadeh performed approximately four to eight laser hair removal procedures a day in Dr. Mesbahi's Rockville office. Rahmati performed one to two laser hair removal procedures per day in the Rockville office between the summer of 2004 and August of 2005. Appellants do not dispute that both Nazemzadeh and Rahmati performed laser hair removal procedures, even when Dr. Mesbahi was not in the office.

[201 Md.App. 324] Complaints and Investigation

On December 1, 2004, a patient (“Patient A”) ⁴ filed a complaint with the Board questioning whether Nazemzadeh was authorized to perform laser hair removal. In her written complaint, the patient complained of “permanent scars and holes” in her body, as well as hypopigmentation, as a result of laser hair removal treatments performed by Nazemzadeh. Patient A reported that she “found out from other laser places that the speedy way [Nazemzadeh] performs laser treatments, over the same spot more than thirty times, but fast, with the Light Sheer machine is incorrect and has left my body burnt all over.” According to Patient A, other professionals apparently took 2–3 hours to perform a treatment that Nazemzadeh completed in 15 minutes. She wrote that Nazemzadeh would use Dr. Mesbahi's business cards to write appointments and she never saw any certifications or business cards with Nazemzadeh's name in the office, so the patient knew her only as “Mina” and was uncertain of her last name or qualifications. This complaint was later withdrawn.⁵

The Board received a second complaint from Patient A in February 2005. In this

[29 A.3d 685]

complaint, Patient A elaborated that Nazemzadeh performed laser hair removal procedures on her twice a month from November 2003 until November 2004. She claimed that the procedures left scabbing, visible scars, and/or hypopigmentation “about 22 times.” Patient A began to question Nazemzadeh's competence after one particular incident where the laser gun caused her skin to “pop,” leaving a “white hole” in the area. She was later told by other professionals, who used the same kind of laser as Nazemzadeh, that going over the same area of skin “over 20 times” as Nazemzadeh did was “unheard of and dangerous.” Patient A [201 Md.App. 325] reported that she was unsure of Nazemzadeh's title or qualifications, but she assumed that she was a physician's assistant. Nazemzadeh had recommended that Patient A use Neosporin to treat her burns. When she was later interviewed as part of the Board's investigation, Patient A stated that she had met Dr. Mesbahi only once for a gynecological exam, never for laser hair removal.

Patient A suggested that the Board's investigator contact her friend, Patient B, who also went to Nazemzadeh for laser hair removal. In a telephone interview, Patient B told the investigator that she had received laser hair removal treatments from Nazemzadeh approximately twice a month for one and a half years. She stopped going in August or September of 2004 because she was concerned about ongoing exposure to the laser and she heard about Patient A's burns and scars. Patient B also told the investigator that she has had laser treatments performed by other people. In comparison, Nazemzadeh's technique was different and her sessions were much quicker. Patient B never sustained injuries as a result of her treatments. Like Patient A, Patient B reported that Nazemzadeh had performed the initial consultation and all treatments. She never met Dr. Mesbahi, even though she indicated a history of herpes simplex and accutane use on her intake form.⁶

On May 23, 2005, the Board assigned compliance analyst Patricia Bramlet to conduct an investigation of the complaints. As described above, Bramlet interviewed Patient A and Patient B. In August of 2005, Bramlet subpoenaed medical records and other documents from Dr. Mesbahi's office and took recorded statements from Nazemzadeh and Dr. Mesbahi. In October 2005, the Board sent Cease and Desist Consent Orders for Nazemzadeh and Rahmati, which they signed. Their attorney advised the Board that Nazemzadeh and Rahmati[201 Md.App. 326] had ceased providing laser hair removal services on August 18, 2005. Also in March 2006, Bramlet conducted a telephone interview with another patient (“Patient C”) who had received laser hair removal treatments from Dr. Mesbahi's office. Patient C reported that she had received approximately five laser hair removal treatments performed by Rahmati. She took a year off from the sessions when she became pregnant, but planned to resume treatments in April 2006. Patient C stated that her April treatments would be performed by Dr. Mesbahi, but she had no concerns or issues with the care received from Rahmati.

Hearing and Board's Decision

On April 18, 2006, Dr. Mesbahi, Nazemzadeh, and Rahmati received notice of the charges filed against them by the Board.⁷

[29 A.3d 686]

The Board alleged that Dr. Mesbahi fraudulently and deceptively used her license, that she was guilty of immoral or unprofessional conduct in the practice of medicine, and that she aided an unauthorized person in the practice of medicine by inappropriately and unlawfully delegating laser hair removal procedures to Nazemzadeh and Rahmati. In separate charging documents, the Board alleged that Nazemzadeh and Rahmati practiced medicine without a license by performing laser hair removal services at Dr. Mesbahi's office.

The cases were consolidated for a hearing, which...