Salerian v. Board of Physicians

Citation932 A.2d 1225,176 Md. App. 231
Decision Date26 September 2007
Docket NumberNo. 624 September Term 2006.,624 September Term 2006.
PartiesAlen J. SALERIAN v. MARYLAND STATE BOARD OF PHYSICIANS.
CourtCourt of Special Appeals of Maryland

Alen J. Salerian, pro se, Washington, DC (Paul T. Stein, Sperling, Bennett, DeJong, Driscoll & Greenfeig, PC, on the brief), Rockville, for Appellant.

Michael O'Doyle (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: MURPHY, C.J., KRAUSER, and BARBERA, JJ.

KRAUSER, Judge.

Appellant, Alen Salerian, M.D., a psychiatrist licensed in Maryland, was engaged by the defense in a federal espionage case to perform a forensic psychiatric evaluation of "Evaluee," the defendant in that case.1 During the course of his engagement, appellant disclosed information that he had learned from Evaluee to Evaluee's wife and then, after he had been discharged by both Evaluee and his counsel, revealed this and other information about Evaluee to local, national, and international media outlets.

Attorneys for Evaluee and his wife thereafter filed a complaint against appellant with the Maryland State Board of Physicians ("Board"), appellee. After an investigation, the Board brought charges against appellant. A hearing followed, at the conclusion of which the Administrative Law Judge ("ALJ") issued a proposed decision finding appellant guilty of "immoral or unprofessional conduct in the practice of medicine," in violation of Maryland Code (1981, 2005 Repl.Vol., 2006 Supp.) § 14-404(a)(3) of the Health Occupations Article ("H.O."). She recommended that appellant's license be revoked, that he be prohibited for a maximum of three years from applying for reinstatement, and that he be fined $20,000.

Adopting the ALJ's "findings," the Board concluded that appellant had violated H.O. § 14-404(a)(3), but declined to find that he "lack[ed] the good moral character necessary for the Board to approve reinstatement of his license." It therefore imposed a lesser sanction. It ordered, among other things, that appellant be placed on probation for a minimum of two years and fined $5,000, but indicated that its decision would not be "a bar to reinstatement of his license on moral character grounds. . . ."

After the Circuit Court for Montgomery County affirmed the Board's decision, appellant noted an appeal, claiming:

I. The Board did not recognize and apply the correct principles of law in finding it had jurisdiction to adjudicate and impose sanctions upon Dr. Salerian based on the complaint filed by the Attorney General.

II. The Board failed to recognize and apply the correct principles of law in finding that the term "unprofessional conduct" as alleged in the charging document is not valie [sic] for vagueness.

III. The Board did not apply the law correctly in finding that a forensic evaluation is the practice of medicine and, further, the facts were not substantial to determine that Dr. Salerian was conducting a forensic evaluation.

IV. The Board did not recognize and apply the correct principles of law in finding that the conduct alleged to be unethical occurred in the practice of medicine.

V. The Board did not have substantial evidence to find that Dr. Salerian's conduct was immoral and unprofessional in the practice of medicine and the Board failed to apply the correct principles of law in finding that Dr. Salerian was in violation of the immoral and unprofessional conduct provision of the Maryland Practice [Act].

VI. The Board failed to recognize and apply the correct principles of law regarding the fairness and due process to be accorded Dr. Salerian in the conduct of the hearing including the acceptance of testimony not given under oath, testimony not given under a proper oath, testimony not subject to full and complete cross-examination, refusal to allow depositions of [Evaluee] to be taken, refusal to allow the substitution of a witness on the issue of confidentiality, and not advising counsel that a decision to admit the testimony of [Evaluee] had been allowed.

VII. The Board failed to recognize and apply the correct principles of law in finding that Dr. Salerian was an agent of Plato Cacheris. [Evaluee's former attorney.]

VIII. The Board failed to recognize and apply the correct principles of law in determining that the moral imperative exception to confidentiality was not justifiable in this matter.

IX. The Board failed to recognize and correctly apply the law of waiver concerning [Evaluee's] assertion of breach of confidence.

X. The Board did not correctly apply the principles of law when admitting the investigatory file in evidence.

For the reasons set forth below, we affirm the judgment of the circuit court.

BACKGROUND

In February 2001, appellant wrote to attorney Plato Cacheris, who was then counsel for Evaluee, a former FBI employee charged with espionage. Appellant was eventually engaged by Cacheris, but, according to Cacheris, only for the limited purpose of performing a forensic psychiatric evaluation of Evaluee. He was to determine if Evaluee was competent to stand trial and whether a psychiatric defense was available. Cacheris warned appellant that he was only authorized to disclose to the media that he had been engaged by the defense and nothing further.

Because of the "national security interests" that were involved in Evaluee's case, in March 2001, the United States Attorney General imposed "Special Administrative Measures" (SAM) of confinement on Evaluee "to prevent disclosure of classified information." The SAM restricted Evaluee's access to the media, mail, visitors, the telephone, and even limited his ability to communicate with his attorney. It further provided that only "the inmate's attorney, and not . . . the attorney's staff" would be permitted to "disseminate the contents of the inmate's communications to third parties" and then, "for the sole purpose of preparing the inmate's defense — and not for any other reason . . . ." Appellant signed a "Physician's Affirmation" stating that he had "received and read" the SAM conditions, and furthermore, that he was "the physician retained by defense counsel . . . ."

Appellant visited Evaluee in prison seven days in late April and early May, for a total of ten hours and fifty minutes. According to appellant's notes, Evaluee disclosed to appellant what the Board described as his "long history of sexual betrayal and exploitation" of his wife,2 which Evaluee had not, up til then, revealed to his wife. On May 4, 2001, appellant wrote a letter to Cacheris suggesting that Evaluee would benefit from pharmacotherapy.3 One day later, appellant visited Evaluee and wrote him a prescription for Paxil, a medication for depression and anxiety.

On May 11, 2001, appellant disclosed to Cacheris what Evaluee had told him about his "sexual exploitation" of his wife. Cacheris instructed appellant not to reveal this information to anyone, including Evaluee's wife. Yet, one day later, appellant disclosed Evaluee's sexual activities to Evaluee's wife. He did so, appellant explained in a letter to Cacheris, to "engender enhanced understanding and reconcilment [sic] between [Evaluee] and his wife . . . ."

Four days later, on May 16, 2001, Cacheris wrote appellant a letter stating that Cacheris and the defense team had "permitted [appellant] to state publicly that [he] ha[d] been engaged by [the defense]" but reminding him that he "ha[d] also stated that [appellant] [was] not to disclose any confidences." "[E]verything," he instructed appellant, "falls within the attorney/client privilege and is not to be disclosed." He then "suggest[ed]" that appellant have "no further contact" with Evaluee and his family.

The next day, May 17, 2001, Cacheris met with appellant and gave him a letter terminating his services. The letter further instructed appellant that "all privileges and confidences remain intact and are inviolate," and "not . . . to discuss this matter with any other persons." That same day, Evaluee himself wrote a letter to appellant, asserting that he "no longer wish[ed]" appellant "to provide [him] with psychiatric services" and specifically instructing appellant "not to discuss this case or conversations you have had with me with anyone other than my attorneys." He concluded the letter by stating, "I am specifically forbidding you from discussing my case with any members of my family and certainly with anyone outside the family."

The next day, appellant wrote a letter to Cacheris "summariz[ing] [his] medical/psychiatric recommendations for [Evaluee]," including his opinion that Evaluee "responded very well to Paxil. . . ." Three days later, on May 21, 2001, appellant sent a letter to Cacheris, in which he stated that he "saw [himself] as a member of the [defense] team as soon as [he] began working" with Cacheris. He explained his disclosure of Evaluee's sexual activities to Evaluee's wife by stating that he felt Evaluee could "better participate in his defense" if he was not "shackled by [the] guilt" of what he had done to his wife.

A week later, on May 30, 2001, appellant sent Cacheris the "psychiatric evaluation" of Evaluee that he had been engaged by Cacheris to perform. The evaluation concluded that Evaluee had been "suffering from several psychiatric disorders" and that there was "strong evidence for a possible insanity defense."

On June 12, 2001, Cacheris wrote to appellant, informing him that a producer for "Sixty Minutes" told Cacheris that appellant "had discussions with him concerning confidential matters involving [Evaluee]." Cacheris again warned appellant that appellant was "not permitted to disclose to anybody communications [he] may have had with [Evaluee] and members of his family" and that "any such disclosures will be violative of the attorney/client privilege and [appellant's] own canons of medical ethics prohibiting disclosures," and, furthermore, he reminded appellant that appellant signed the United States government's "Special...

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