Solomon v. Board of Physicians

• Decision Date: 19 December 2003
• Docket Number: No. 361,361
• Citation: Solomon v. Board of Physicians, 155 Md. App. 687, 845 A.2d 47 (Md. App. 2003)
• Parties: Barbara A. SOLOMON, M.D. v. STATE BOARD OF PHYSICIAN QUALITY ASSURANCE.
• Court: Court of Special Appeals of Maryland

845 A.2d 47

155 Md. App. 687

Barbara A. SOLOMON, M.D. v.STATE BOARD OF PHYSICIAN QUALITY ASSURANCE.

No. 361, September Term, 2002.

Court of Special Appeals of Maryland.

December 19, 2003.

Reconsideration Denied March 8, 2004.

John M. DiJoseph of Arlington, VA, Mercedes C. Samborsky of Joppatown, for appellant.

Sarah E. Pendley(Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before HOLLANDER, ADKINS, BARBERA, JJ.

BARBERA, Judge.

In this, her second appeal before this Court, appellant, Barbara A. Solomon, M.D., challenges the decision of the Board of Physician Quality Assurance("the Board") to revoke her medical license because she"fail[ed] to cooperate with a lawful investigation," pursuant to Maryland Code(1981, 1994 Repl.Vol., 1999 Supp.), § 14-404(a)(33) of the Health Occupations Article("HO").In December 1999, the Board issued a subpoena duces tecum commanding that Dr. Solomon produce the medical records of 19 of her patients.Dr. Solomon refused to comply with the subpoena on the grounds that she was not under investigation by the Board for misconduct, the subpoena was overbroad, and her compliance with the subpoena would violate her patients' privacy rights.

One year after issuing the subpoena, the Board revoked Dr. Solomon's medical license.Dr. Solomon filed a petition for judicial review in the Circuit Court for Baltimore County, which affirmed the Board's decision.On appeal, Dr. Solomon presents eight questions, which we have distilled into three:

I.Was Dr. Solomon entitled to resist the Board's subpoena on the grounds that: (1) no investigation was underway at the time; (2) the subpoena was overbroad; and (3) it violated the Confidentiality of Medical Records Act, HIPAA, and the physician-patient privilege?

II.Did the administrative law judge err or abuse her discretion in denying Dr. Solomon's request to call a number of witnesses to testify on her behalf?

III.Did the Board abuse its discretion by subjecting Dr. Solomon to "excessive punishment," when it revoked her license to practice medicine?

For the reasons that follow, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

Most of the relevant underlying facts are contained in the opinion of this Court, Solomon v. Board of Physician Quality Assurance,132 Md.App. 447, 752 A.2d 1217, cert. denied,360 Md. 275, 757 A.2d 811(2000)("Solomon I").We therefore borrow liberally from the recitation of facts in that opinion.

In February 1997, the Board received a complaint from a patient of Dr. Solomon claiming, among other things, that she had not been adequately informed by Dr. Solomon of the diagnostic procedures and methods of treatment employed.After conducting a preliminary investigation of that complaint, which included visiting Dr. Solomon's office and consulting with the Food and Drug Administration about Dr. Solomon's use of the Computonix System for diagnostic testing, a subcommittee of the Board recommended that no formal charges be filed against Dr. Solomon.

On August 26, 1998, the Board sent Dr. Solomon an advisory letter notifying her that the complaining patient's case was closed.The letter nevertheless advised Dr. Solomon of the need to give each patient complete disclosure including risks about "experimental techniques"she intended to use, and that "a patient disclosure form along with a signed and dated consent form should be made part of the patient's medical records."The letter also included the following notice:

Six months from the date of this letter the Board will be conducting a re-review of your practice.Board staff will obtain patient records, initiated after the date of this letter, in which experimental techniques were implemented.Each record will be reviewed regarding issues of standard of care to include a review of documentation of signed diagnoses and treatment disclosure forms and informed consent forms for each patient.

On February 19, 1999, the Board sent a letter to the Medical and Chirurgical Faculty, requesting that it conduct a review of Dr. Solomon's practice, including a review of her patient consent and disclosure forms.Several weeks later, the Board issued a subpoena duces tecum to Dr. Solomon, commanding her to produce her "complete appointment schedule for October, November and December 1998, along with a list of all hospitalized patients during this period, reasons for and date of hospitalization, and the name of the hospital, which materials are in your custody, possession or control."The Board later limited the subpoena's scope to include only Dr. Solomon's appointment schedule for October, November, and December 1998.

Refusing to surrender the records requested in the absence of an open complaint against her, Dr. Solomon filed an action in the Circuit Court for Baltimore County to quash the subpoena.In response, the Board filed a motion to dismiss that action, asserting that the Medical Practice Act authorized it to proceed as it had done.Dr. Solomon responded with a motion to strike the Board's motion to dismiss.

On July 26, 1999, a hearing on the motion to dismiss was held in the Circuit Court for Baltimore County.At the conclusion of the hearing, the court dismissed Dr. Solomon's complaint with prejudice, declaring that she has "no right to quash the administrative investigatory subpoena that was issued in this case."¹

Dr. Solomon noted an appeal to this Court, Solomon I.Then, on November 22, 1999, she turned over the appointment logs to the Board.

On December 2, 1999, the Board issued another subpoena.This subpoena commanded Dr. Solomon to produce within 21 business days "the entire medical chart, including, but not limited to, the billing records" of 19 patients randomly selected from the appointment logs.Dr. Solomon refused to comply with the subpoena, asserting that disclosure of her patients' medical records without consent violated their privacy.²On May 25, 2000, approximately six months after the December 2nd subpoena issued, the Board charged Dr. Solomon with unprofessional conduct in the practice of medicine and failure to cooperate with a lawful Board investigation.Several weeks later, we filed Solomon I, affirming the circuit court's denial of Dr. Solomon's action to quash the initial 1999 subpoena.

An evidentiary hearing on the Board's charges was conducted by an Administrative Law Judge ("ALJ") in November 2000.The following month, the ALJ issued her Proposed Decision.The ALJ made extensive fact findings, from which she concluded that Dr. Solomon had "repeatedly failed to cooperate with the Board's lawful investigation," and that this failure constituted "unprofessional conduct in the practice of medicine."The ALJ proposed that Dr. Solomon's license be revoked.

Dr. Solomon filed exceptions with the Board.After a hearing on March 28, 2001, the Board issued its final order, adopting the ALJ's findings of fact and conclusions save for the ALJ's conclusion that Dr. Solomon had engaged in unprofessional conduct in the practice of medicine.The Board agreed with the ALJ's proposed sanction, adding:

Dr. Solomon's license will be revoked.The Board needs to review Dr. Solomon's medical records before it can determine whether she is practicing competently and within the standard of care.Without medical records, which document the medical care she is rendering, the Board will never know this, and will be completely unable to fulfill its mission to protect the public.As of the date of this Final Order, Dr. Solomon has not turned over the nineteen (19) patient records for which the Board issued a subpoena on December 2, 1999; furthermore, she has testified that she does not intend to comply with that subpoena.

Dr. Solomon filed a petition for judicial review of the Board's order in the Circuit Court for Baltimore County.After hearing arguments from counsel, the court affirmed the Board's decision.From the entry of judgment on that order, Dr. Solomon filed this timely appeal.³

DISCUSSION

Standard of Review

The standard to be applied in reviewing a decision of an administrative agency was recently restated in Finucan v. State Board of Physician Quality Assurance,151 Md.App. 399, 827 A.2d 176,cert. granted,377 Md. 275, 833 A.2d 31(2003): "Appellate review of an administrative agency's decision is narrow."Id. at 411, 827 A.2d 176.We are "` "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law."`"Id.(citation omitted).

"`[T]he expertise of the agency in its own field should be respected.'"Id.(citation omitted).Therefore, "`an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.'"Id.(citation omitted).When reviewing the ALJ's legal conclusions, however, "`the court "must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law.'"" McKay v. Department of Pub. Safety & Corr. Servs.,150 Md.App. 182, 193, 819 A.2d 1088, cert. denied,376 Md. 50, 827 A.2d 113(2003)(citations omitted).

I.

We can quickly dispose of one contention raised by Dr. Solomon.She argues that the circuit court"did not apply the correct standard for review to its analysis and determination of the issues of law."It is settled, however, that "in an administrative appeal, it makes no difference whether or not the trial judge applied the correct standard for review."Gabaldoni v. Board of Physician Quality Assurance,141 Md.App. 259, 273, 785 A.2d 771(2001).This is so because "[o]ur role in reviewing the decision of an administrative agency is precisely the same as that of the circuit court.We,...