Barson v. Md. Bd. of Physicians

211 Md.App. 602

66 A.3d 50

Phyllis K. BARSON

v.MARYLAND BOARD OF PHYSICIANS.

No. 2673, Sept. Term, 2011.

Court of Special Appeals of Maryland.

May 3, 2013.

Kevin A. Dunne (Ian I. Friedman, Ober, Kaler, Grimes & Shriver, on the brief), Baltimore, MD, for appellant.

David E. Wagner (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: MATRICCIANI, NAZARIAN, JAMES R. EYLER (Retired, Specially Assigned), JJ.^*

NAZARIAN, J.

A deal is always a deal, but this appeal brings to mind the long-standing playground rule of “no backsies.” By calling “no backsies” before finalizing an agreement, the parties reiterate and reinforce their intention to be bound and stay bound.¹ In this case, the Maryland Board of Physicians (the “Board”), the appellee, charged appellant Phyllis K. Barson, an experienced physician, with improperly prescribing opiates and other controlled substances for a dozen patients over more than eight years. Dr. Barson settled these charges by entering into a Consent Order with the Board in which, among other things, she waived her rights to contest or appeal the Consent Order and represented that she understood its meaningand effect. Later on, Dr. Barson claimed not to have foreseen all of the professional consequences of the Consent Order, and, after experiencing those consequences, she asked the Board to revise it. The Board declined, and the Circuit Court for Baltimore City dismissed Dr. Barson's petition for judicial review and a writ of mandamus.

We affirm. Under the circumstances, Dr. Barson had no right to compel the Board to revise the Consent Order and the Board did not err in declining her request. Put another way, Dr. Barson agreed to settle the Board's charges on a “no backsies” basis, and the Board was entitled to hold her to that agreement.

BACKGROUND

Dr. Barson has been a practicing physician in Maryland since 1973. She has practiced in two distinct areas: pain management and anesthesiology. At the time she entered into the Consent Order, she was the Chair of the Department of Anesthesiology at Dimension Hospital's Surgicenter in Bowie, Maryland.

In 2009, the Board received a report that Dr. Barson had been sending prescriptions for painkillers to patients through the mail and without conducting appropriate examinations. After initiating an investigation and conducting a peer review of Dr. Barson's records, the Board determined that Dr. Barson had failed to meet the appropriate standard of care and to keep adequate medical records for twelve individual patients. We will not recount the whole story here—the details are set forth in full in the Consent Order's Findings of Fact, which adopted the allegations without revision—but it will suffice to say that the Board charged Dr. Barson with prescribing potent painkillers (including Oxycontin, Percocet, and other opioid medications) from her home, without justification, without monitoring the patients, and without examining or seeing the patients either prior to or over the course of prescribing the drugs. The allegations spanned a period of more than eight years and, if proven, would have supported multiple statutory violations that exposed Dr. Barson to serious potential sanctions, including revocation of her license and significant fines. See Md.Code (1981, 2009 Repl.Vol., 2012 Cum.Supp.) §§ 14–404(a)(22), (a)(40), –405.1 of the Health Occupations Article (“Health Occ.”).

On January 13, 2011, the Board issued an Order summarily suspending Dr. Barson's license to practice medicine. The Board convened a show cause hearing on January 26, 2011, and declined to reinstate her. After a Case Resolution Conference on April 6, 2011, and before the case proceeded to an evidentiary hearing, Dr. Barson and the Board agreed to settle the charges by entering into the Consent Order. Among its terms, the Consent Order set forth verbatim, as “General Investigative Findings,” the allegations contained in the summary suspension order and stated, as “Conclusions of Law,” the finding that Dr. Barson had violated the Maryland Medical Practice Act, Health Occ. § 14–404:

Based on the foregoing Findings of Fact, the Board concludes as a matter of law that [Dr. Barson] violated the following provisions of the Act: Fails to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in an outpatient surgical facility, office, hospital, or any other location in this State, in violation of ... [Health Occ.] § 14–404(a)(22); and Fails to keep adequate medical records as determined by appropriate peer review, in violation of [Health Occ.] § 14–404(a)(40).²

The “Order” section of the Consent Order suspended Dr. Barson's license immediately for ninety days and placed her on probation for at least two years, subject to specified conditions. Two of these conditions lie at the heart of this case:

[211 Md.App. 607]1. [Dr. Barson] shall not practice algology or pain management, and shall not treat any patients for chronic pain management;

2. [Dr. Barson] shall forfeit her Federal DEA registration number and Maryland CDS registration number, and shall not re-apply for the same. However, nothing in this Consent Order shall be construed to prevent [Dr. Barson] from prescribing non-controlled and/or nonscheduled prescription medications[.]

(Emphasis added.) But probation is not permanent. At the end of two years, the Consent Order permitted Dr. Barson to petition the Board and contemplated that if she complied with all conditions, the Board will terminate her probation and allow her to practice medicine unencumbered.

In the last section of the Consent Order, which bears the heading “CONSENT,” Dr. Barson agreed to be bound by the terms of the Order, waived any right to contest them, waived any right to appeal and, perhaps most importantly, acknowledged that she understood the Consent Order's meaning and effect (we have reproduced this section in its entirety, with emphases added):

CONSENT

I, Phyllis Barson, M.D., acknowledge that I have had the opportunity to consult with counsel before signing this document. By this Consent, and for the sole purpose of resolving the issues raised by the Board, I accept to be bound by this Consent Order and its conditions and restrictions. I waive any rights I may have had to contest the Findings of Fact and Conclusions of Law.

I acknowledge the validity of this Consent Order, as if entered into after the conclusion of a formal evidentiary hearing in which I would have had the right to counsel, to confront witnesses, to give testimony, to call witnesses on my own behalf, and to all other substantive and procedural protections as provided by law. I acknowledge the legal authority and the jurisdiction of the Board to initiate these proceedings and to issue and enforce this Consent Order. I also affirm that I am waiving my right to appeal any adverse ruling of the Board that might have followed any such hearing.

I sign this Consent Order after having had an opportunity to consult with counsel, without reservation, and I fully understand and comprehend the language, meaning and terms of this Consent Order. I voluntarily sign this Order, and understand its meaning and effect.

The Consent page is signed by Dr. Barson and her attorney, who “[r]ead and approved” it, and also notarized.³

On July 12, 2011, counsel for Dr. Barson sent a letter to the Executive Director of the Board and asked “that her consent order be revised or interpreted to allow her the right to have DEA or CDS registrations for the sole purpose of writing orders for anesthesia drugs for Hospital patients.” According to the letter, Dr. Barson did not realize at the time she entered into the Consent Order that forfeiting her federal DEA and Maryland CDS registration numbers (“the registration numbers”) would preclude her from returning to her anesthesiology practice at Dimension Hospital because “the Hospital could not fill her ‘orders' for anesthesia drugs unless she had a DEA registration number” and because “Hospital by-laws expressly require her to have a DEA registration number to maintain staff privileges.” The letter contended that “[b]oth the Board and Dr. Barson expected she would, upon returning to practice, resume her work as an anesthesiologist,” and that “[i]f there was an intent that she not return to her practice, a request for revocation or surrender would have been made.”

The Board forwarded Dr. Barson's letter to the Administrative Prosecutor, who responded in a July 27, 2011 letter (the “AG letter”) that the Board should deny Dr. Barson's request. In the Administrative Prosecutor's view, the condition Dr. Barson wanted to revise “was an essential component in resolving concerns that she engaged in dangerous prescribing practices, which the Board considered a threat to the health, safety and welfare of the public”:

It is the State's position that the Board should deny Dr. Barson's request to modify the Consent Order. The parties engaged in good faith negotiations when discussing the terms of [the] Consent Order ..., including the condition that she forfeit her DEA or Maryland CDS registration numbers. Forfeiture of Dr. Barson's DEA registration number was an essential component in resolving concerns that she engaged in dangerous prescribing practices, which the Board considered a threat to the health, safety and welfare of the public. To eliminate that condition and permit Dr. Barson to hold a valid DEA registration number would diminish an important safeguard of the Consent Order, which restricted her ability to prescribe controlled dangerous substances. To permit [her] to obtain a DEA registration number, enabling her to resume prescribing controlled dangerous substances would be contrary to the best interests of the public.

(Emphasis added.) The Administrative Prosecutor sent a copy of the AG letter to Dr. Barson's counsel.

The Board denied Dr. Barson's...