Lee-Bloem v. State of Maryland (Full Text)
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2227
September Term, 2007
ALICE LEE-BLOEM
v.
STATE OF MARYLAND, ET AL.
Krauser, C.J.,
Woodward,
Matricciani,
JJ.
Opinion by Matricciani, J.
Filed: December 4, 2008
This appeal arises out of a complaint alleging that appellant, Dr. Alice Lee-Bloem, a
licensed psychiatrist, provided substandard care to a patient under the Medical Practice Act,
Md. Code (1981, 2005 Repl. Vol., 2008 Supp.), § 14-401 et seq. of the Health Occupations
Article (“HO”). Appellant filed a verified complaint in the Circuit Court for Baltimore City
against the State of Maryland, the Maryland Board of Physicians (“the Board”) and its
individual members, the Maryland Department of Health and Mental Hygiene and its
Secretary, John M. Colmers (collectively the “State Appellees”); and the Maryland
Psychiatric Society and three peer reviewers assigned to the case by that body (collectively
the “Society Appellees”). Appellant sought a declaratory judgment and permanent injunction
against any further proceedings by the Board under both Maryland law and 42 U.S.C. § 1983
(2000).
The State Appellees moved to dismiss on the grounds that (1) appellant failed to
exhaust her administrative remedies, (2) HO § 14-405(g) prohibits a pre-charge challenge
to the Board’s investigatory process, and (3) appellant failed to allege an actionable violation
of her constitutional rights. The Society Appellees moved to dismiss on the same grounds,
and also on the ground that appellant’s claim under 42 U.S.C. § 1983 was not ripe.
The circuit court granted appellees’ motions to dismiss appellant’s complaint for
failure to state a claim. Appellant appealed, and presents the following issues for our review,
which we have slightly reworded:
I.
Whether the court erred in dismissing appellant’s action based upon the
doctrine of the exhaustion of administrative remedies.
II. Whether the court erred in dismissing appellant’s action pursuant to HO
§§ 14-405(g) and 14-401(e)(5).
III. Whether the court erred in dismissing appellant’s action as not ripe
under 42 U.S.C. § 1983.
For the reasons below, we affirm the judgment of the circuit court.
FACTS AND PROCEEDINGS
Appellant is a psychiatrist who is licensed by the Board to practice medicine in
Maryland. On April 21, 2005, the Board sent appellant a letter advising her that a complaint
had been filed against her for allegedly providing substandard medical care to a patient
diagnosed with schizophrenia. The complaint, which was made by a psychologist who was
also the patient’s former domestic partner, alleged that appellant had improperly reduced and
then withdrew the patient’s medication, resulting in several psychotic episodes. The
complaint also alleged that appellant (1) prides herself in getting her patients off of
medication and into treatments containing only nutritional supplements; (2) recommends that
her patients buy those expensive supplements from mail order companies; and (3) makes all
of her diagnoses and treatment plans based on “muscle testing,” which the complainant
alleged is “a notoriously unreliable technique popular with orthomolecular medicine
practitioners and naturopaths.”
Pursuant to HO § 14-401(c)(2),1 the Board referred the allegations to the Maryland
1 HO § 14-401(c)(2) provides:
After performing any necessary preliminary investigation of an allegation of
grounds for disciplinary or other action, the Board shall refer any allegation
based on § 14-404(a)(22) of this subtitle [which relates to allegations of failure
to meet the appropriate standard of care] to the entity or entities that have
-2-
Psychiatric Society (“the Society”), a non-profit entity with which the Board had contracted
for the provision of peer reviews in cases involving psychiatrists.2 The Society engaged three
psychiatrists—Neil Brian Sandson, M.D., Michael Spodak, M.D., and Ellen G. McDaniel,
M.D.—to review whether appellant had met the relevant standard of care. Those peer
reviewers met with appellant between August and November of 2006.
On April 30, 2007, appellant filed a Verified Complaint for a Declaratory Judgment,
a Permanent Injunction, and Other Temporary Relief in the Circuit Court for Baltimore City.
Appellant alleged that the review process was not governed by sufficient rules, and requested
the court to declare it violative of appellant’s due process rights and therefore illegal and
invalid. Appellant also contended that the peer reviewers were not qualified to determine
whether she had complied with the appropriate standard of care because they were unfamiliar
with the orthomolecular approach she employed. Appellant also alleged that one of the peer
reviewers, Dr. Sandson, was an improper reviewer on conflict of interest grounds because
contracted with the Board under subsection (e) of this section for further
investigation and physician peer review within the involved medical speciality
or specialties.
2 The contract between the Board and the Society provides that peer reviewers shall
be certified by the American Board of Medical Specialties or the American Osteopathic
Association and have five or more years post-residency experience. The contract also
provides that “the contractor shall ordinarily designate peer reviewers who are of the same
specialty as the physician under investigation[,]” or alternatively, “the contractor may
designate a peer reviewer of a different specialty, the practitioners of which often perform
the same or similar type of procedures as that provided by the investigated physician or who
often treat the same or similar medical problems as those for which the physician provided
treatment.”
-3-
he worked at a hospital at which appellant’s patient had been previously treated. At the time
appellant filed her complaint, the Board had not taken any disciplinary action or issued any
charges against her.
On June 11, 2007, the State Appellees moved to dismiss on the grounds that appellant
failed to exhaust her administrative remedies, HO § 14-405(g) prohibits a pre-charge
challenge to the Board’s investigatory process, and appellant failed to allege an actionable
violation of her constitutional rights. On June 22, 2007, the Society Appellees moved to
dismiss on the same grounds, and also on the ground that appellant’s claim under 42 U.S.C.
§ 1983 was not ripe.
On October 26, 2007, the court held a hearing on appellees’ motions. After hearing
argument from all parties, the court stated that “the rules and regulations specify that
[appellant’s concerns] must be raised during the administrative process before [they are]
brought to court.” The court further added that the “[c]ase law makes it very clear that
[appellant’s] objections must first be made during the administrative process and then [they]
can be made upon judicial review before this Court. Under the circumstances, that has not
happened.” Consequently, the court stated that it would grant appellees’ motions to dismiss.
On November 15, 2007, the court entered an order to that effect. This appeal followed.
DISCUSSION
As questions of law, we review the issues raised by appellant de novo. Garfink v.
-4-
Cloisters at Charles, Inc., 392 Md. 374, 383 (2006).
I.
Appellant argues that the court erred in dismissing her action based upon the doctrine
of administrative exhaustion. Appellant argues that the doctrine does not apply in this case
because the Board lacked proper jurisdiction insofar as it did not have regulations and
procedures in place for the investigatory phase of its physician disciplinary process.
Appellant also argues that the doctrine does not apply in this case because the Board’s
administrative process does not provide an adequate remedy to address her constitutional
claims, and exhaustion of the administrative remedies available under the administrative
scheme set forth in the Medical Practice Act was therefore futile. We disagree.
We initially note that the Maryland Uniform Declaratory Judgments Act, Md. Code
(1973, 2006 Repl. Vol.), § 3-401 et seq. of the Courts and Judicial Proceedings Article
(“CJP”), provides that the exhaustion of administrative remedies doctrine applies in the
declaratory judgment context. CJP § 3-409(b) (providing that, “[i]f a statute provides a
special form of remedy for a specific type of case, that statutory remedy shall be followed
in lieu of a proceeding under this subtitle”).
Turning to appellant’s allegation that the Board lacked jurisdiction to entertain her
claim, the Court of Appeals has made clear that an agency is without jurisdiction “only where
it lacks a clear authority to adjudicate a given class of claims.” Heery Int’l, Inc. v.
Montgomery County, 384 Md. 129, 144 (2004) (citing State Comm’n on Human Relations
v. Freedom Express/Domegold, Inc., 375 Md. 2, 19-20 (2003)). “Therefore, a party wishing
-5-
to circumvent the administrative process must demonstrate that an agency is operating
indisputably beyond its authority, and distinctly outside its fundamental jurisdiction.” Id. at
144-45 (citing as an example a probate court, invested only with authority over wills and
estates, attempting to try a person for a criminal offense).
Applying that law to the facts of the case at bar, it is clear that the Board was not
operating beyond its authority or outside its jurisdiction. The Medical Practice Act
authorizes the Board to investigate and charge physicians suspected of standard of care
violations, and sets forth a detailed and comprehensive administrative process that the Board
must follow in doing so. Thus, appellant’s allegation that the Board violated the peer review
provisions of the Act—even if proven to be true—does not deprive the Board of its
jurisdiction to investigate whether appellant violated the Act’s standard of care provisions.
Appellant’s argument that the exhaustion of administrative remedies doctrine does not
apply because the administrative process does not provide an adequate remedy to address her
constitutional claims is also without merit. Appellant claims due process violations arising
out of the lack of guidelines governing the peer review process, the peer reviewers’ lack of
qualifications, and Dr. Sandson’s alleged conflict of interest. Appellant cites the
Administrative Procedure Act, Md. Code (1984, 2004 Repl. Vol.), § 10-101 et seq. of the
State Government Article, and the Code of Maryland Regulations as limiting the authority
of the Office of Administrative Hearings to hear and rule on peer review challenges because
its jurisdiction does not attach until charges are brought. We disagree.
HO § 14-405(g) provides that “[t]he hearing of charges may not be stayed or
-6-
challenged by any procedural defects alleged to have occurred prior to the filing of charges.”
Furthermore, the Court of Appeals has succinctly stated that “questions, including
Constitutional issues, that could have been but were not presented to the administrative
agency may not ordinarily be raised for the first time in an action for judicial review.” Bd.
of Physician Quality Assur. v. Levitsky, 353 Md. 188, 207-08 (1999). The Court in Levitsky
therefore made clear that challenges such as the ones appellant now raises before us must
first be raised in an administrative hearing in order to be preserved for judicial review.
The Levitsky Court did provide one exception to the rule, explaining that,
[t]o the extent that deficiencies or irregularities in the pre-charge proceedings
actually compromise the accused’s opportunity for a full and fair hearing on
the charges . . . or suffice in some way to deprive the agency (or court) of true
jurisdiction to proceed, the accused is necessarily entitled, and must be
allowed, to raise those deficiencies or irregularities, notwithstanding [HO § 14-
405(g)]. Beyond that, however, [HO § 14-405(g)] means what it says and
must be given effect.
Id. at 206. In other words, an alleged constitutional violation alone is not sufficient to
sidestep the administrative process set forth in the Medical Practice Act and proceed directly
to the courts. Rather, the alleged violation must actually compromise the accused’s
opportunity for a fair hearing such that exhausting the administrative remedies would be
futile.
We are not persuaded that appellant was denied her right to a full and fair
administrative hearing, constitutional claims notwithstanding. The contract between the
-7-
Board and the Society contains specific guidelines regulating the peer review process.3 That
contract also includes the qualifications required of peer reviewers, which, contrary to
appellant’s argument, do not require that peer reviewers employ the same particular type of
treatment as the investigated physician. That contract also includes provisions assuring
against conflicts of interest between peer reviewers and investigated physicians.4
In short, even assuming, arguendo, that appellant’s due process rights were violated,
we are not convinced that appellant could not fairly argue those alleged constitutional
violations within the administrative scheme set forth in the Medical Practice Act. Indeed,
if appellant were unsatisfied with the outcome of that administrative process, she was entitled
to further judicial review. Consequently, we hold that there is no prohibition against an
administrative law judge hearing and ruling upon the three specific peer review issues raised
by appellant, and it was therefore not futile for appellant to exhaust her administrative
remedies.
II.
3 Those guidelines include the method by which peer reviewers must complete their
reports and the content that is required therein, which includes a demonstration by the
reviewer of knowledge of the medical treatment at issue, a statement of the standard of care
required under the circumstances, and a statement and explanation of whether that standard
was met.
4 Those provisions prohibit the use of peer reviewers who are a relative, personal
friend, business partner, supervisor, or employee of either the patient or the investigated
physician. They also prohibit peer reviewers who have a substantial business relationship
with the investigated physician whether through a legal relationship or a pattern of referrals,
and require each peer reviewer to declare in writing that no relationship exists which would
interfere with his or her objective judgment.
-8-
Appellant argues that it is unclear whether the court dismissed appellant’s action
pursuant to two sections of the Medical Practice Act, namely HO §§ 14-405(g) and 14-401
(e)(5), but if it did, it did so erroneously. Appellant claims that both of those statutes are
“anti-injunction statutes aimed at staying a disciplinary hearing in progress,” and are
therefore inapplicable because, at the time appellant brought her action, no hearing was in
progress. Appellant further argues that HO § 14-401(e)(5), a statute which does not provide
for retroactive application, is not applicable to her action because it was enacted in June
2007, several months after she filed her action in April 2007. We disagree.
HO § 14-405(g) provides that “[t]he hearing of charges may not be stayed or
challenged by any procedural defects alleged to have occurred prior to the filing of charges.”
HO § 14-401(e)(5) provides that “[t]he hearing of charges may not be stayed or challenged
because of the selection of peer reviewers under this subsection before the filing of charges.”
While the circuit court did not expressly identify “the rules and regulations” that
barred appellant’s bypass of the administrative process, taken in the context of the
memoranda and oral argument before it at the time of its ruling, there can be no doubt that
the court was referring to HO § 14-405(g) and/or HO § 14-401(e)(5). Moreover, “we
presume judges to know the law and apply it, even in the absence of a verbal indication of
having considered it.” Wagner v. Wagner, 109 Md. App. 1, 50, cert. denied, 343 Md. 334
(1996). Indeed, “trial judges are not obliged to spell out in words every thought and step of
logic.” Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (citation omitted).
Appellant cites no authority, nor could we find any, for her argument that HO §§ 14-
-9-
405(g) and 14-401(e)(5) should be construed to allow interruption of the investigatory stage.
As we have already noted, the Court of Appeals has explained that HO § 14-405(g) “means
what it says and must be given effect.” Levitsky, 353 Md. at 206. The Levitsky Court
therefore construed HO § 14-405(g) narrowly, and only allowed for deviation from that
statute’s prohibition of pre-charge interruption when the accused’s rights to a fair
administrative hearing are compromised. Id. We have already concluded, however, that no
such compromise existed under the facts of the case before us. Thus, we conclude that the
court did not err in dismissing appellant’s claim under HO § 14-405(g).
Because we hold that the court did not err in dismissing appellant’s case pursuant to
HO § 14-405(g), we need not consider whether the court erred in relying upon HO § 14-
401(e)(5).
III.
Appellant argues that the court erred in dismissing her action as not ripe under 42
U.S.C. § 1983. We disagree.
In Broadcast Equities, Inc. v. Montgomery County, 123 Md. App. 363 (1998), vacated
and remanded on other grounds, 360 Md. 438 (2000), we dealt with a similar issue. In that
case, the Montgomery County Commission on Human Relations issued a written
determination that reasonable grounds existed to believe that Broadcast Equities had
unlawfully discriminated against a former employee. Id. at 373. The Commission scheduled
a hearing on the matter, and Broadcast Equities filed suit to enjoin the hearing pursuant to
42 U.S.C. § 1983 on the grounds that enforcement of the county code violated its due process
-10-
rights. Id. at 373-74. We held that “the Commission’s decision that reasonable grounds exist
to believe that [Broadcast Equities] violated the County Code is not ‘final,’ and thus not ripe
for review.” Id. at 404. Citing earlier precedent, we reiterated:
The administrative process would come to a standstill if parties that are the
subject of agency investigations could file parallel lawsuits seeking to
adjudicate an issue that is before the agency. As a matter of administrative
law, and as a matter of equity, a government agency needs to be able to do its
work. There would scarcely be a purpose for an agency . . . if a party involved
in a proceeding before the agency could make an “end run” around it by
obtaining judicial adjudication of the same issues that are then pending before
the agency.
Id. at 405 (quoting Maryland Comm’n on Human Relations v. Downey Commc’ns, Inc., 110
Md. App. 493, 524-25 (1996)).
In the case at bar, appellant filed her claim after the peer review process had
concluded but before the Board had decided whether to file charges. As in Broadcast
Equities, the Board’s decision to investigate appellant and conduct peer reviews pursuant to
the Medical Practice Act was not a “final” decision. Levitsky, 353 Md. at 206 (explaining
that “[t]he peer review panel does not determine whether the accused physician or attorney
is ‘guilty’ of anything, only whether there is a sufficient basis for the filing of charges”).
Consequently, we conclude that the court did not err in dismissing appellant’s claim on the
grounds that her 42 U.S.C. § 1983 claim was not ripe.5,6
5 Although we need not rely upon it to affirm the circuit court’s dismissal of
appellant’s 42 U.S.C. § 1983 claim, we note that an alternative ground on which the court
could have relied is appellant’s lack of an injury to a requisite property interest insofar as the
Board had neither filed charges nor revoked her medical license at the time she filed her
action. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (stating that the “Due Process
-11-
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Clause protects persons against deprivations of life, liberty, or property[,] and those who seek
to invoke its procedural protection must establish that one of these interests is at stake”).
6 Because we affirm the court’s dismissal of appellant’s complaint, appellant’s Notice
of Appeal dated December 12, 2007, regarding the discovery orders of the circuit court, is
moot. Therefore, we need not address Society Appellees’ motion to dismiss it.
-12-