Cornfeld v. State Board of Physicians (Ct. of Special Appeals)

Filed May 2, 2007--Opinion by Judge Sally Adkins.

The State Board of Physicians ("Board") found Cornfeld (1) violated the standard of care in his treatment of a surgical patient by leaving her under anesthesia and unattended in the operating room, and (2) engaged in unprofessional conduct in the practice of medicine by misrepresenting to both a hospital peer review investigator and the Board that improper settings on the surgical instrument he used were not made to his specifications. The Board suspended Cornfeld's license to practice medicine until he satisfied certain conditions and imposed a three year probationary period thereafter. The Circuit Court for Baltimore City affirmed the Board's order. Cornfeld appeals, raising five issues for review:

1. Did the Board err in concluding that Dr. Cornfeld engaged in unprofessional conduct "in the practice of medicine" by making misrepresentations during hospital peer review and Board investigations?
2. Did the Board violate section 14-401(i) of the Medical Practice Act by failing to complete its investigation within 18 months, or to explain its delay, requiring dismissal of the complaint against Cornfeld?
3. Is the Board's conclusion that Dr. Cornfeld violated the standard of care by leaving an anesthetized patient unattended in the operating room supported by substantial evidence?
4. Is the sanction imposed by the Board "so disproportionate as to constitute arbitrary and capricious agency action?
5. Did the administrative law judge abuse her discretion by excluding certain evidence offered by Dr. Cornfeld?

The Court held that Dr. Cornfeld's false statements to hospital peer reviewers and Board investigators constituted "professional misconduct in the practice of medicine." Finding substantial evidence to support the Board's decision, no abuse of discretion, and no error of law, the judgment was affirmed.

The Medical Practice Act ("Act") identifies 40 specific bases for disciplinary action, two of which explicitly pertain to conduct committed "in the practice of medicine." Section 14-404(a)(3) permits the board to disclipline a licensee who is guilty of immoral or unprofessional conduct in the practice of medicine. Section 14-404(a)(11) authorizes discipline of a physician who "wilfully makes or files a false report or record in the practice of medicine." In addition, Section 14-404(a)(22) allows disciplinary action against a licensee who "fails to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in a hospital."

Prior to a gynecological procedure in October 1999, Cornfeld instructed the overseeing nurse ("Dickey") to change the settings of the surgical machine ("Bovie") to his preferred settings indicated on a card he had on file. During the procedure, he burned the patient twice and repaired the lacerations with two large Vicryl stitches. Proper notifications of the incident by Dickey ultimately led to another surgeon's ("Vincent") review and correction of Cornfeld's stitching. Upon Dickey's notification to Cornfeld that another surgeon would be conducting such review and that the patient was to remain unconscious until the review, Cornfeld replied "Do what you need to do," and then left the operating room. No other surgeon was in the operating room at that time, and it was at least two to three minutes before the reviewing surgeon arrived. MGH suspended Cornfeld's hospital privileges shortly thereafter.

In a subsequent statement through his attorney in February 2000 to the investigating Board and a peer review investigation in July 2000, Cornfeld made statements in direct opposition to the stated preference of the card he had on file and alleged Dickey was negligent. The Board filed charges against Cornfeld in November 2003, alleging both violations of the standard of care and unprofessional conduct in the practice of medicine. After an evidentiary hearing, an administrative law judge ("ALJ") initially found Cornfeld breached the standards of care applicable to the charges. However, after hearing and exceptions, the Board concluded that "the clear and convincing evidence demonstrates only that Dr. Cornfeld left an anesthetized patient unattended in the operating room and thus violated Section 14-404(a)(22)."

The Board's separate charge of unprofessional conduct was based on Cornfeld's statements regarding his instructions for the Bovie machine settings. The ALJ concluded that the misrepresentations Cornfeld made about the settings were made during the hospital peer review and Board investigation and, therefore, did not fall within the "practice of medicine." The Board sustained the State's exception to that conclusion and, in support, cited its own precedents that making a false application or submitting a false testimony for a Board proceeding are "clearly within the practice of medicine."

The Board sanctioned Cornfeld by revoking his license until he satisfied certain enumerated conditions and, once the suspension was lifted, continued Cornfeld on probation for three years, during which his practice would be subject to "Board review and peer review" at the Board's discretion.

The standards governing judicial review of the Board's decision are limited to determining whether there was substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determining whether the decision was premised upon an erroneous conclusion of law. In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; should defer to the agency's fact-finding and drawing of inferences if they are supported by the record; must review the agency's decision in the light most favorable to it; the agency's decision is prima facie correct and presumed valid; and it is the agency's province to resolve conflicting evidence and to draw inferences from that evidence.

Unprofessional Conduct in the Practice of Medicine: The practice of medicine is statutorily defined as

1. to engage, with or without compensation, in medical (i) diagnosis, (ii) healing, (iii) treatment, or (iv) surgery;

2. "practice medicine" includes doing, undertaking, professing to do, and attempting any of the following: diagnosing, healing, treating, preventing, prescribing for, or removing any phsyical, mental or emotional ailment or supposed ailment of an individual:

• by physical, mental, emotional or other process that is exercised or invoked by the practitioner, the patient, or both, or
• by appliance, test, drug, operation, or treatment.

Cornfeld contends that his misconduct did not occur in the practice of medicine because it took place in the context of judicial proceedings and was unrelated to the manner in which he treated a patient such that it was directly tied to the effective delivery of patient care. The Court reasoned that this case involved misconduct that occurred during proceedings that arguably adjudicated the medical propriety of Cornfeld's care. However, the Court did not agree that the definition of the pratice of medicine was so narrowly defined so as to exclude professional misconduct during hospital peer reviews and Board disciplinary proceedings. The issue of whether a treating physician's dishonesty in a peer review or state discplinary proceeding falls within the "practice of medicine" is one of first impression, and the Court was persuaded that Cornfeld made the false statements in order to influence decisions concerning the quality of his medical care to a patient and his fitness to practice medicine at MGH specifically, and in Maryland generally. Further, Cornfeld's false statements concerned his instructions for settings on a surgical instrument he used to operate, a matter that required his medical judgment in a specific surgical procedure. These misrepresentations were made to persons responsible for evaluating Cornfeld's medical care to patients. Held: Such misrepresentations were directly tied to medical treatment and surgery within the statutory definition of "practice medicine."

Delay in Board Investigation: The relevant section, 14-404(j)(2), states "If the Board is unable to complete the disposition of a complaint within 1 year, the Board shall include in the record of that complaint a detailed explanation of the reason for the delay."

Although the investigation was opened in January 2000, charges were not issued for more than three years. Cornfeld contends that, despite repeatedly raising the issue of untimeliness of the investigation, the Board failed to comply with either the statutory time frame or the statutory requirement that any extension beyond one year will be explained in detail on the record and posits the proper remedy is dismissal of the charges for failure to comply with the statute. The Court found that the legislature's failure to include a penalty for failure to act within a prescribed time indicates the provision is directory rather than mandatory. In accordance with HO § 14-405(g), "hearing of charges may not be . . . challegend by any procedural defects alleged to have occurred prior to the filing of charges" including complaints that the Board failed to comply with Section 14-404(j).

Violation of Standard of Care: The Court held the cited evidence provided a substantial factual basis for the Board's finding that Cornfeld violated the applicable standard of care in leaving an anesthetized patient.

Sanctions: The Board has statutory authority to "place any license on probation or suspend . . . a license" for violations of the Act. The Court could not find that suspension and long term probation for the breach of the standard of care in this case was so extreme and egregious as to warrant judicial intervention.

Evidentiary Rulings: The Administrative Procedure Act protects a party's right to call witnesses, offer evidence (including rebuttal evidence), cross-examine any witness, and present summation and argument. An ALJ may exclude evidence that is incompetent, irrelevant, immaterial or unduly repetitious, Cornfeld contends the ALJ went too far when she denied him his right to pursue any theories of the case. After reviewing the relevant portions of the record in support of Cornfeld's complaints, the Court did not find that Cornfeld was denied his rights to defend himself.

The full opinion is available in PDF.

In Re: Shawn P. (Court of Special Appeals)

Filed February 5, 2007–Opinion by Judge Arrie Davis.

The Circuit Court for Washington County, sitting as a juvenile court, adjudicated Shawn a delinquent as a result of his involvement in an assault, placing him on probation for an indefinite period of time. Shawn appealed the court’s adjudication and disposition, raising the following issues:

1) Did the juvenile court err in finding that Appellant waived his right to counsel when the court failed to comply with Maryland’s juvenile right to counsel statute and Maryland Rule 11-106?

2) Was Appellant deprived of his right to the effective assistance of counsel at his adjudication and disposition hearing?

Issue 1 was answered in the affirmative. When Shawn appeared for his hearing without counsel, the court inquired as to why he did not attain counsel. Shawn’s response was that he did not think he would need one. Over objection from the public defender, the court accepted Shawn’s answer as his waiver of counsel.

The right to counsel in juvenile proceedings is guaranteed by statute and rule. Maryland Rule 11-106 provides in pertinent part that "[t]he respondent is entitled to be represented in all proceedings under this Title by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection (b) (2) and (3) of this Rule." In regard to waiver of counsel, Rule 11-106(b)(1) provides:

1. Waiver Procedure. If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances; (iii) that the right to counsel in a delinquency case, a child in need of supervision case, or a case in which an adult is charged with a violation of Section 3-831 of the Courts Article includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and (v) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

Md. Code Ann., Cts. & Jud. Proc. §3-8A-20 provides in pertinent part:

(a) Except as provided in subsection (d) of this section, a party is entitled to the assistance of counsel at every stage of any proceeding in this subtitle.

(b)(1) Except as provided in paragraph (3) of this subsection, a child may not waive the right to the assistance of counsel in a proceeding under this subtitle.

(2) A parent, guardian, or custodian of a child may not waive the child’s right to the assistance of counsel.

(3) After a petition or citation has been filed with the court under this subtitle, if a child indicates a desire to waive the right to the assistance of counsel, the court may not accept the waiver unless:

(i) the child is in the presence of counsel and has consulted with counsel; and (ii) the court determines that the waiver is knowing and voluntary; and

(4) In determining whether the waiver is knowing and voluntary, the court shall consider, after appropriate questioning in open court and on the records, whether the child fully comprehends:

(i) the nature of the allegations and the proceedings, and the range of allowable dispositions; (ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the petition or other mitigating circumstances; (iii) that the right to the assistance of counsel in a delinquency case, or a child in need of supervision case, includes the right to the prompt assignment of an attorney, without charge to the child if the child is financially unable to obtain private counsel; (iv) that even if the child intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material that could affect the disposition; and (v) that among the child’s rights at any hearing are the right to call witnesses on the child’s behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.

The State responded to Shawn’s appeal by stating that the public defender entered an appearance immediately and represented Shawn at the adjudicatory hearing, so any error in connection with the waiver of counsel proceedings became moot. The State further pointed out that the summons warned in all capitals, "A POSTPONEMENT WILL NOT BE GRANTED BECAUSE YOU FAIL TO CONTACT A LAWYER," and that Shawn had known about the hearing for approximately six weeks. The Court found, however, that Shawn was not provided the mandatory conference in open court and on the record and, consequently, was denied his rights.

The Court found that under the totality of the circumstances, the trial judge having found Shawn, appearing before the court for the first time, had waived his right to counsel by inaction and then, having permitted the public defender to enter his appearance at Shawn’s adjudicatory hearing, abused his discretion by denying counsel’s request for a continuance or, in the alternative and at the very least, by refusing to afford counsel an opportunity to confer with Shawn.

The opinion is available in PDF.

Ehrlich v. Grove (Ct. of Appeals)

Decided January 11, 2007 -- Opinion by Judge Dale Cathell.

In a case involving a suit by a senior official of the Maryland Department of the Environment for wrongful termination by Governor Robert Ehrlich upon the beginning of his term as Governor in January 2002, the Court of Appeals held that an interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine’s four-part test is met, namely, when:

the interlocutory order sought to be reviewed:

(1) conclusively determines the disputed question,

(2) resolves an important issue,

(3) resolves an issue that is completely separate from the merits of the action, and

(4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.

The Court of Appeals further held that the Circuit Court for Baltimore City had abused its discretion when, in the course of resolving a complex and extended discovery dispute between the parties, it ordered expanded in camera review with the active participation of the attorney for the Plaintiff of documents protected by attorney-client privilege or the work product doctrine and when it actively solicited by its draft of a solicitation letter the consent of 341 former executive-branch employees of the State of Maryland to the release of employment and other documents that the Circuit Court itself had held to be irrelevant and not reasonably calculated to lead to admissible evidence in this case.

The full opinion is available here in PDF.