Mackoul v. Md. State Bd. of Physicians

PAUL J. MACKOUL v. MARYLAND STATE BOARD OF PHYSICIANS

No. 2607

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

January 20, 2016

UNREPORTED

Wright, Arthur, Raker, Irma S. (Retired, Specially Assigned), JJ.

Opinion by Wright, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal arises from the decision of the Circuit Court for Montgomery County to affirm the Final Decision and Order of the Maryland State Board of Physicians ("the Board"). On February 17, 2009, Patient A¹ filed a complaint with the Board, alleging improper conduct by appellant, Paul J. MacKoul, M.D. ("Dr. MacKoul"). On January 17, 2012, the Board charged Dr. MacKoul with unprofessional conduct in the practice of medicine, in violation of § 14-404(a)(3)(ii) of the Md. Code (1981, 2014 Repl. Vol.), Health Occupations Article ("HO").²

The Administrative Law Judge ("ALJ") at the Office of Administrative Hearings ("OAH") issued a proposed decision on March 12, 2013, after a two-day hearing, concluding that Dr. MacKoul was guilty of unprofessional conduct with respect to Patient A. After an Exceptions Hearing before the Board on July 24, 2013, the Board issued a Final Decision and Order on June 3, 2014, imposing a reprimand requiring Dr. MacKoul to complete a Board-approved intensive course on physician-patient interactions.

Dr. MacKoul presents the following questions on appeal:

I. Whether the Board exceeded the proper scope of the charges[.]

II. Whether the Court should substitute its judgment for that of the Board's on the only issue properly before the Board - timely cancellation of Patient A's surgery after the patient's arrival to the hospital on October 20, 2008[.]

III. Whether the factual findings supportive of the sole issue properly before the Board pass the substantial evidence test[.]

We answer Dr. MacKoul's questions in the negative and, for the reasons outlined below, hold that the Board did not exceed the proper scope of the charge and substantial evidence existed to support the Board's decision.

Facts

In October 2008, Patient A was an 89-year-old woman who, among other complex issues, had a uterine prolapse that was no longer managed by the use of pessaries, which are medical devices used to provide support to the uterus. Dr. Carolyn Harrington, Patient A's long-time gynecologist, had inserted her pessaries and recommended that Patient A undergo a transvaginal hysterectomy. Dr. Harrington referred Patient A to Dr. MacKoul for a surgical consultation.³

The consultation took place on September 13, 2008, when Patient A and her son met with Dr. MacKoul, with her daughter and son-in-law participating by speakerphone. During this consultation, it is undisputed that Dr. MacKoul gave Patient A the name and number of Dr. Jonathan White, a urologist, for her to see before her surgery. Patient A and her family testified that Dr. MacKoul "advised Patient A that she could see a urologist for further evaluation of her bladder, as a second opinion, and to put her mind at ease if she had any concerns regarding potential incontinence." Dr. MacKoul, however, claimed that during this initial consultation, he "instructed Patient A to obtain a[necessary] preoperative urological consultation." Dr. Harrington had also recommended that Patient A to see Dr. White before her surgery.

On October 20, 2008, the day of her scheduled surgery, Patient A arrived at the hospital at approximately 2:00 p.m. and was ready for surgery at approximately 3:55 p.m. Patient A's surgery was scheduled for 5:00 p.m., and she was evaluated by an anesthesiologist shortly before 5:00 p.m. During this time, Dr. MacKoul was involved with two other surgical procedures. After starting the first surgery and then leaving, Dr. MacKoul took on his second surgery at 5:45 p.m., "elect[ing] to perform [this patient's surgery] at that time because it was a quicker, more routine procedure than Patient A's." He then returned to the first patient's surgery, remaining there until 8:00 p.m.⁴

Around 8:30 p.m., Dr. Harrington paged and reached Dr. MacKoul, who at that time reviewed Patient A's chart and learned that Patient A had not obtanied the urological evaluation. Because the urological evaluation was an important step in determining whether surgery would be safe, Dr. MacKoul cancelled the surgery.⁵

Several days later, Patient A met with Dr. White and obtained a urological clearance. Subsequently, Dr. Harrington and another surgeon performed the surgery onPatient A; Dr. MacKoul was not involved. Thereafter, Patient A's daughter, on Patient A's behalf, filed a complaint against Dr. MacKoul with the Board. The Board charged Dr. MacKoul with "unprofessional conduct in the practice of medicine" under § 14-404(a) of the Maryland Medical Practice Act based on the following allegation:

On or about February 17, 2009, the Board received a complaint from the daughter of a former patient of the Respondent [Dr. MacKoul] ("Patient A") in which it was alleged, inter alia, that the Respondent failed to notify the elderly patient, who had been prepared for surgery for several hours, that he had cancelled the surgical procedure he was scheduled to perform on her.

(Footnote omitted). The Board ultimately found that Dr. MacKoul engaged in unprofessional conduct and required that he attend a course on doctor-patient relations. Dr. MacKoul petitioned for judicial review, and the circuit court affirmed the Board's order, prompting Dr. MacKoul to file a timely appeal.

Additional facts will be included in our discussion as they become relevant.

Standard of Review

An appellate court reviews the decision of an administrative agency "under the same statutory standards as the Circuit Court," meaning "we reevaluate the decision of the agency, not the decision of the lower court." Gigeous v. E. Corr. Inst., 363 Md. 481, 495-96 (2001)(citation and footnote omitted). In People's Counsel for Baltimore County v. Elm Street Development, Inc., 172 Md. App. 690, 700 (2007), we said:

In reviewing the decision of an agency, our role "is 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." United Parcel Serv., Inc. v. People's Counsel, 336 Md. 569, 577(1994). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Md. State Police v. Warwick Supply & Equip. Co., Inc., 330 Md. 474, 494 (1993).

We further acknowledged that we "may not substitute our judgment for that of the Board" in making such a determination "unless the agency's conclusions were not supported by substantial evidence or were premised on an error of law." Id. at 700-01 (citation omitted).

Discussion

Dr. MacKoul was charged on January 17, 2012 by the Board for unprofessional conduct pursuant to HO § 14-404(a)(3), which in pertinent part read⁶:

(a) Subject to the hearing provisions of § 14-405 of this subtitle, the Board, on the affirmative vote of a majority of the quorum, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee:

* * *

(3) Is guilty of:

(i) Immoral conduct in the practice of medicine; or

(ii) Unprofessional conduct in the practice of medicine[.]

(Emphasis added). "Unprofessional conduct," while not defined by statute, "refers to conduct which breaches the rules of ethical code of a profession, or conduct which is unbecoming of a member in good standing of a profession." Finucan v. Md. Bd. Of Physicians Quality Assurance, 380 Md. 577, 593 (2004) (citations omitted). The Board has the responsibility of interpreting the meaning of such terms by looking to the "common judgment" of the profession. Id.

In the instant case, Dr. MacKoul was charged with unprofessional conduct because of his failure to communicate effectively and professionally with Patient A and her family. Dr. MacKoul points out that "[n]ever in Maryland has mere miscommunication between physician and patient resulted in a finding of 'unprofessional conduct,'" comparing the instant case with previous examples of 'unprofessional conduct' such as sex with patients, false statements, on an application for license or before peer review proceedings, sexual harassment of co-employees, or extreme incompetence. While Dr. MacKoul may accurately assert that failure to communicate is not quite in the same vein as sexual relations with patients or dishonest conduct, the Board, which is made up of individuals in the medical profession, has the task and responsibility of what is or is not "unprofessional conduct" within the field, and the "expertise of the agency in its own field of endeavor is entitled to judicial respect." Finucan, 380 Md. at 590-91, 593 (citations omitted). In that regard, we are limited to review only whether substantial evidence supports the Board's decision. Elm St. Dev., 172 Md. App. at 700. We conclude that it does.

I. The Board's conclusions of law did not exceed the scope of the charges framed by the pre-hearing order, and thereby did not violate Dr. MacKoul's due process rights.

HO § 14-405(b)(1) requires that the hearing officer "give notice and hold the hearing in accordance with the Administrative Procedure Act." To satisfy due process, notice must be "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Reed v. Baltimore,323 Md. 175, 183-84 (1991) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

The Board concluded, as a matter of law, that Dr. MacKoul engaged in unprofessional conduct because he: (1) "fail[ed] to inform Patient A of the necessity of a urology consult as a...