Md. Bd. of Physicians v. Geier

241 Md.App. 429

211 A.3d 543

MARYLAND BOARD OF PHYSICIANS, et al.

v.Mark R. GEIER, et al.

No. 1979, Sept. Term, 2017

No. 338, Sept. Term, 2018

Court of Special Appeals of Maryland.

June 26, 2019

Argued by: Julia Doyle Bernhardt (Robert A. Scott, Jennifer L. Katz, Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellant.

Argued by: James M. Love (Titus, Hillis, Reynolds Love PC, Tulsa, OK and Francis John Kreysa, PC, Gaithersburg, MD), on the brief, for Appellee.

Panel: Arthur, Leahy, Reed, JJ.^*

Arthur, J.

TABLE OF CONTENTS

Statutory and Regulatory Background...554

A. The Maryland State Board of Physicians and Board Personnel...554

B. General Procedures for the Board's Medical Disciplinary Proceedings...556

The Administrative Proceedings...557

A. The Initial Medical Disciplinary Proceedings Against the Geiers...557

B. The Cease-and-Desist Order Dated January 25, 2012...558

C. The Amended Cease-and-Desist Order Dated February 22, 2012...559

D. Outcome of the Medical Disciplinary Proceedings...560

The Proceedings in the Circuit Court...561

A. The Geiers' Action Against Board Personnel and the Board...561

B. Denial of Motion to Dismiss on the Ground of Absolute Immunity...562

C. Grant of Motions to Compel Discovery and for Discovery Sanctions...562

D. The First Interlocutory Appellate Decision on Discovery Matters...564

E. Rejection of Absolute Immunity and Other Rulings on Remand...564

F. The Second Interlocutory Appellate Decision on Discovery Matters...–565

G. Remaining Pretrial Rulings...566

H. Bench Trial on Damages...567

I. Opinion Awarding Compensatory and Punitive Damages...568

J. Award of Attorneys' Fees and Entry of Final Judgment...570

Scope of Appellate Review...571

Questions Presented...573

Discussion...574

I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983...574

II. Claim Against Board Personnel Under 42 U.S.C. § 1983...576

A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions...576

B. Absolute Immunity in the Context of Administrative Proceedings...578 C. Absolute Immunity in Relation to Medical Disciplinary Proceedings...579

D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland...581

E. Absolute Immunity for the Issuance of a Cease-and-Desist Order...582

F. Absolute Immunity of Others Participating in the Board's Decision...586

III. Maryland Tort Claim Against Board Personnel and the Board...587

A. Absolute Judicial (and Quasi-Judicial) Privilege Under Maryland Law...587

B. Absolute Immunity for Government Officials Under Maryland Law...590

C. Qualified Immunity for Board Personnel Under Maryland Statutes...596

IV. Absolute Immunity in the Procedural Context of this Case...600

A. Denials of Motion to Dismiss and Motion for Summary Judgment...600

B. Refusal to Consider Absolute Immunity After Default as to Liability...603

Conclusion ...609

In 2012, the Maryland Board of Physicians issued a public cease-and-desist order against Mark Geier, M.D. The text of the order included information about medications prescribed to Dr. Geier, his wife, and his son. The Geiers filed suit in the Circuit Court for Montgomery County, seeking to recover damages from 25 persons who were alleged to have participated in the drafting or approval of the order and from the Board itself. The court rejected the defendants' assertions that they were entitled to absolute immunity with respect to their functions in the administrative proceedings.

The defendants managed to narrow the discovery of some matters by prevailing in two interlocutory appeals: Maryland Board of Physicians v. Geier ("Geier I "), 225 Md. App. 114, 123 A.3d 601 (2015), and Maryland Board of Physicians v. Geier ("Geier II "), 451 Md. 526, 154 A.3d 1211 (2017). Ultimately, as a sanction for the Board's discovery failures, the circuit court ordered a default as to the liability of all defendants. After a bench trial on damages, the court awarded a total of $ 1.25 million in compensatory damages and a total of $ 1.25 million in punitive damages. The court further ordered the defendants to pay nearly $ 2.4 million in attorneys' fees. All defendants appealed from the final judgment.

Foremost in a litany of challenges, the defendants contend that they are entitled to absolute immunity as to all claims. For the reasons discussed in this opinion, we conclude that their contention is correct. The judgment shall be reversed.

STATUTORY AND REGULATORY BACKGROUND

The defendants in this case are appealing from a civil judgment for damages based on actions that occurred in the context of medical disciplinary proceedings. To understand the issues presented, it is necessary to begin with some understanding of the statutes and regulations that governed those proceedings.

A. The Maryland State Board of Physicians and Board Personnel

In Maryland, health occupations are "regulated and controlled" to "protect the health, safety, and welfare of the public." Md. Code (1981, 2014 Repl. Vol., 2018 Supp.), § 1-102(a) of the Health Occupations Article. The General Assembly has created independent health occupations boards, the majority of whose members are licensed to practice in the regulated occupation, "with the intent that a peer group is best qualified to regulate, control, and otherwise discipline in a fair and unbiased manner the licensees ... who practice in the State." Id. § 1-102(b). The State Board of Physicians is one such board within the Department of Health (id. § 14-201), one of the principal departments of the executive branch of the State government. See Md. Code (1984, 2014 Repl. Vol., 2018 Supp.), § 8-201(b)(8) of the State Government Article.

The Board is responsible for administering the Maryland Medical Practice Act, codified at Title 14 of the Health Occupations Article. Many of the Board's proceedings are governed by the Contested Cases subtitle of the Administrative Procedure Act: Subtitle 2 of Title 10 of the State Government Article. Regulations for the Board's disciplinary and licensing matters are codified at Title 10, Subtitle 32, Chapter 2, of the Code of Maryland Regulations. Because the underlying events occurred in 2011 and 2012, our analysis concerns the provisions in effect at that time. Unless otherwise specified, subsequent citations to "HO" refer to the 2009 Replacement Volume and 2011 Supplement of the Health Occupations Article; citations to "SG" refer to the 2009 Replacement Volume and 2011 Supplement of the State Government Article; and citations to "COMAR" refer to the 2011 version of the Code of Maryland Regulations.¹

Under the Medical Practice Act, any person who practices medicine in Maryland must be licensed by the State Board of Physicians. See HO §§ 14-301, 14-601. The Act expressly empowered the Board to adopt rules and regulations to carry out the provisions of the Act ( HO § 14-205(a)(1)(i)(1) ); to investigate alleged violations of the Act ( HO § 14-205(a)(2) ); to reprimand a licensee, place any licensee on probation, or suspend or revoke a license upon a determination that the licensee engaged in conduct prohibited by the Act ( HO § 14-404(a) ); to impose fines instead of or in addition to other sanctions ( HO § 14-405.1(a) ); to issue a cease-and-desist order or obtain injunctive relief for practicing medicine without a license ( HO § 14-206(e) ); and to levy fines for practicing medicine without a license ( HO § 14-606(a)(4)(ii) ).

Before 2013, the Board consisted of 21 members appointed by the Governor with the advice of the Secretary of the Department² and with the advice and consent of the Senate. HO § 14-202(a)(1). Those members included: 13 practicing licensed physicians, including one doctor of osteopathy and one representative of an academic medical institution; one representative of the Department; one certified physician assistant; five "consumer members"; and one "public member knowledgeable in risk management or quality assurance matters[.]" HO § 14-202(a)(2)(i)-(vii). The "consumer" and "public" members are persons who have never trained to become a physician and who maintain limited personal and financial ties to the field of medicine. See HO § 14-202(b). Members serve four-year terms ( HO § 14-202(i) ), during which they may be removed for cause (see HO § 14-202(k) ). The Governor appoints one chair of the Board, who serves a two-year term. HO § 14-203(a).

Board members are entitled to compensation in accordance with the State budget.

HO § 14-204(c). In practice, however, because most members are practicing physicians, they make limited time commitments to the Board's activities, for which they receive modest compensation. According to a notice soliciting nominations to fill vacancies in 2012, Board members attend one full-day meeting each month (along with their service on one or more committees), and for their attendance they receive complimentary lunch, travel reimbursement, and a $ 250 per diem (or a $ 300 per diem for the chair).³

To assist the Board with its many duties, the Secretary employs a full-time staff headed by an executive director. See HO § 14-204(d). Assistant attorneys general, investigators, and hearing officers assist with "the investigation, development, and prosecution of cases referred to the Board[.]" HO § 14-204(e). Attorneys assigned to prosecute administrative charges are known as administrative prosecutors. COMAR 10.32.02.02(B)(3). Attorneys assigned for the purpose of giving advice on legal matters before the Board are known as Board counsel. COMAR 10.32.02.02(B)(6).⁴

B. General Procedures for the Board's Medical Disciplinary Proceedings

When the Board receives an allegation of grounds for disciplinary action, the Board's staff undertakes an investigation. HO § 14-401(a) ; COMAR 10.32.02.03(A). The Board investigates and adjudicates allegations of the unlicensed practice of medicine under the same process that it uses for disciplinary actions against licensed physicians. See COMAR 10.32.02.06(B)(1). In connection with an investigation, the Board may issue...