In re Olivacce

1

IN THE MATTER OF LUCKRICIA OLIVACCE

No. 480-2023

Court of Special Appeals of Maryland

August 2, 2024

UNREPORTED ^[*]

Circuit Court for Washington County Case No. C-21-CV-22-000309

Ripken, Albright, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

OPINION

Kenney, J.

This appeal arises from an investigation conducted by the Maryland State Board of Physicians ("the Board") of a complaint filed against Luckricia Olivacce, PA-C, a certified physician assistant, alleging that she overprescribed opioid medication. As part of its investigation, the Board issued a subpoena duces tecum to Ms. Olivacce, directing her to produce certain patient files. In ostensible compliance with the subpoena, Ms. Olivacce submitted over 2,000 pages of responsive records. Following a peer review of those pages, the Board charged Ms. Olivacce, under the Maryland Physician Assistants Act, Maryland Code (1981, 2021 Repl. Vol.), §§ 15-101 etseq. of the Health Occupations Article ("Health Occ."), with violating the appropriate standards for the delivery of medical care and failing to keep adequate medical records. After learning of the charges, Ms. Olivacce produced over 1,000 pages of additional records that had been omitted from her initial submission. The Board subsequently amended the charges to include failure to cooperate with a lawful investigation conducted by it or a disciplinary panel.

Following an administrative hearing, the Board reprimanded and fined Ms. Olivacce for failing to cooperate with the investigation and dismissed the remaining charges. On judicial review, the Circuit Court for Washington County reversed the failure-to-cooperate sanctions. The Board filed a timely appeal from that judgment and presents the following question for our review:

Does substantial evidence support the Board's finding that Ms. Olivacce failed to cooperate with the Board's lawful investigation when she failed to make a careful, reasonable effort to review the documents and failed to produce a significant volume of medical records required to be produced in response to a Board subpoena?

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

BACKGROUND

On or around September 10, 2018, the Board received a written complaint against Ms. Olivacce, who was then employed by the National Spine and Pain Center ("NSPC") as a pain management physician assistant. The complaint alleged that Ms. Olivacce had overprescribed oxycodone and morphine to a particular patient. In a letter dated November 29, 2018, Troy Garland, a compliance officer with the Board, advised Ms Olivacce as follows: "[T]he Board is in receipt of a complaint alleging your prescribing of [sic] controlled dangerous substance (CDS) contributed to a patient's death. Based on this information, the Board has initiated a full investigation." Mr. Garland's letter was accompanied by a subpoena duces tecum directing Ms. Olivacce to "produce . . . a COMPLETE COPY of any and all medical records" for ten of her patients-including the individual identified in the complaint. (Emphasis retained.) The subpoena further required that "[s]uch documents or objects . . . be delivered [to Mr. Garland] within ten (10) business days from the date of this subpoena[.]" (Emphasis retained.) The subpoena also warned Ms. Olivacce of the potential consequences for failing to comply:

For failure to comply with this subpoena, on petition of the Board, a court of competent jurisdiction may punish the person for contempt of court, Health Occ. 14-206(b), and a disciplinary panel of the Board may charge the person with failure to cooperate with a lawful investigation conducted by the Board, Health Occ. § 15-314(a)(33).

(Emphasis added.)

At the administrative hearing, Alicia Keels, NSPC's Regional Director of Operations, described the organization's standard procedure for responding to Board-issued subpoenas for medical records. Ms. Keels testified that such subpoenas are initially received by NSPC's inside counsel before being forwarded to the "center manager," who, in turn, would retrieve the requested records from NSPC's electronic medical record system ("EMRS"). According to Ms. Keels, health care providers such as Ms. Olivacce never participate in the administrative process of "actual[ly] pulling . . . the records" from the EMRS.^[1]

After Ms. Olivacce received the subpoena, Amy Dillcher, NSPC's vice president and general counsel, requested and obtained a ten-day extension on her behalf. In advance of the revised deadline, NSPC sent Ms. Olivacce's personal attorney medical records for the ten patients named in the subpoena. Ms. Olivacce "did not go through every single paper[,]" but she "browsed through" the records and, based on that review, concluded that she "was looking at a complete file of those records."

On December 21, 2018, Ms. Olivacce, through counsel, submitted to the Board over 2,000 pages of responsive medical records, as well as several signed certifications stating:

I[,] Luckricia Olivacce, PA-C[,] do hereby certify and solemnly affirm under the penalties of perjury, that to the best of my knowledge, information and belief, the enclosed medical records in response to the attached subpoena are an accurate reproduction of any and all records in my possession or constructive possession and are in compliance with the attached subpoena.

I have personally reviewed the entire medical record and further certify to the best of my knowledge, information and belief, that I have provided the Maryland Board of Physicians (Board) with the COMPLETE MEDICAL RECORDS which include all records pertaining to the care and treatment of the patient [PATIENT NAME] in my possession or constructive possession and control, including all materials generated by me, or other health care providers, all laboratory reports, all jacket entries and all other entries as kept in the regular course of business for each patient in my medical practice.

I understand that my failure to provide the complete medical records to the Board may constitute failure to cooperate with the Board's lawful investigation and may result in disciplinary action by the Board under the Maryland Medical Practice Act.

(Emphasis retained.)

During its investigation, the Board submitted the medical records it received from Ms. Olivacce to Monica Thomas, PA-C, who is also a certified physician assistant specializing in pain management, for peer review. Based upon her examination of those records, Ms. Thomas drafted a detailed, twenty-seven-page report. In that report, dated July 5, 2019, Ms. Thomas concluded that Ms. Olivacce had not met the appropriate standards of care in six of the ten cases and had failed to maintain adequate medical records in seven.^[2]Among the apparent inadequacies in Ms. Olivacce's medical recordkeeping, Ms. Thomas noted that seven of her patient charts did not contain signed controlled substance agreements.^[3] The Board adopted Ms. Thomas's report and, on January 16, 2020, charged Ms. Olivacce with failing to meet appropriate standards for the delivery of quality medical care, in violation of Health Occ. § 15-314(a)(22), and failing to keep adequate medical records, in violation of Health Occ. § 15-314(a)(40).

The peer review report and notification of charges led Ms. Olivacce to suspect that her submission to the Board was incomplete. She conveyed that concern to counsel, who later advised her that he had "engaged with people at [NSPC] . . . to try to have an audit done of the entire record to see if there were records missing." As a result, counsel obtained 1,182 pages of additional medical records from NSPC, which included both the previously omitted controlled substance agreements and missing "SOAPP test results[.]"^[4] On April 29, 2020, counsel forwarded those records to the Board. In the accompanying letter, he explained the belated submission:

[W]ith the filing of the Board charges, it became apparent that the original production of records by [NSPC] did not include the entire . . . record for each of the patients . . . . For example, the Board reviewer stated that the NSPC record[s] referenced but did not include numerous documents, including opioid agreements . . . . As a result of conferences with NSPC administrative and IT staff, it became apparent that the original or initial record production to the Board did not contain all of the documents or data in the EMR[S] . . . at NSPC for the patients at issue. As the Board is probably aware, the data contained within an EMR[S] sometimes requires a more sophisticated interrogation to obtain all of the data or information on a particular patient. What apparently occurred in this case is that through the software for the NSPC EMR[S] there is a basic print mechanism in the EMR[S] that was utilized to produce the records to the Board initially. It has been determined that this basic print mechanism does not generate the entire record.

Ms. Keels's later testimony tended to corroborate counsel's account. According to Ms. Keels, in early 2019 (after Ms. Olivacce had received hard copies of the subpoenaed records from NSPC, but before her attorney requested an audit), NSPC learned of a problem with the EMRS. She further explained that when a user "click[ed] the [']all['] button" in attempting to print an entire patient file, the EMRS only printed the office notes, but not any of the attachments.^[5]

When the Board received the newly produced documents, it forwarded them to Ms. Thomas, who, after another two-week-long review of the records, filed an amended report on or around July 14 2020. In the amended report, Ms. Thomas retracted five of her seven initial findings that Ms. Olivacce had failed to maintain adequate medical records. As a...