Cornfeld v. State Board of Medicine

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0175
September Term, 2006

EDWARD CORNFELD
v.
STATE BOARD OF PHYSICIANS

Adkins,
Krauser,
Bloom, Theodore G.,
(Retired, Specially Assigned)
JJ.

Opinion by Adkins, J.

Filed: May 2, 2007

State Board of Physicians (the Board) found that appellant
Edward Cornfeld, M.D. (1) violated the standard of care in his
treatment of a surgical patient by leaving her under anesthesia and
“unattended in the operating room[,]” and (2) engaged in
unprofessional conduct in the practice of medicine by
misrepresenting to both a hospital peer review investigator and the
Board that improper settings on the surgical instrument he used
were not made to his specifications. The Board suspended Dr.
Cornfeld’s license to practice medicine until he satisfied certain
conditions, and imposed a three year probationary period
thereafter. The Circuit Court for Baltimore City affirmed the
Board’s order. Cornfeld appeals, raising five issues for our
review, which we rephrase as follows:
Did the Board err in concluding that Dr.
I.
Cornfeld
engaged
in
unprofessional
conduct “in the practice of medicine” by
making misrepresentations during hospital
peer review and Board investigations?
Did the Board violate section 14-401(i)
of the Medical Practice Act by failing to
complete its investigation within 18
months, or to explain its delay,
requiring dismissal of the complaint
against Cornfeld?
III. Is the Board’s conclusion that Dr.
Cornfeld violated the standard of care by
leaving
an
anesthetized
patient
unattended
in
the
operating
room
supported by substantial evidence?
Is the sanction imposed by the Board “so
disproportionate to the alleged offense
as to constitute arbitrary and capricious
agency action”?

II.

IV.

Did the administrative law judge abuse
her discretion by excluding certain
evidence offered by Dr. Cornfeld?
We shall hold that Dr. Cornfeld’s false statements to hospital
peer reviewers and Board investigators constituted “professional
misconduct in the practice of medicine.” Finding substantial
evidence to support the Board’s decision, no abuse of discretion,
and no error of law, we shall affirm the judgment.
STATUTORY SCHEME GOVERNING PHYSICIAN DISCIPLINE
In Maryland, physicians are governed by the Medical Practice
Act (“the Act”), codified at Md. Code (1981, 2005 Repl. Vol., 2006
Cum. Supp.), § 14-101 et seq. of the Health Occupations Article
(HO). The Act is administered by the Board,1 which has both
licensing and disciplinary responsibilities. See HO § 14-205, §
14-206, § 14-313. In performing these duties, the Board has adopted
regulations. See Code of Maryland Regulations (“COMAR”) 10.32.02.
Under the Act, the Board has authority to discipline
physicians for enumerated reasons. Section 14-404(a) identifies 40
specific bases for disciplinary action, two of which explicitly
pertain to conduct committed “in the practice of medicine.”
Section 14-404(a)(3) permits the Board to discipline a licensee who

1Before July 1, 2003, the Board was known as the State Board
of Physician Quality Assurance. See 2003 Md. Laws, ch. 252. For a
thorough history of Maryland’s regulation of the medical profession
prior to that amendment, including the provenance of the provisions
at issue in this appeal, see Md. Bd. of Physician Quality Assurance
v. Felsenberg, 351 Md. 288, 297-302 (1998)(Wilner, J.).
2

“[i]s guilty of immoral or unprofessional conduct in the practice
of medicine[.]” Section 14-404(a)(11) authorizes discipline of a
physician who “[w]illfully makes or files a false report or record
in the practice of medicine[.]” In addition, section 14-404(a)(22)
allows disciplinary action against a licensee who “[f]ails to meet
appropriate standards as determined by appropriate peer review for
the delivery of quality medical and surgical care performed in [a]
. . . hospital[.]”
In Md. Bd. of Physicians v. Bernstein, 167 Md. App. 714, 719-
21 (2006), we detailed the Board’s process for investigating and
adjudicating complaints against physicians, and the ensuing process
of judicial review.
The Act authorizes the Board to reprimand
a licensed physician, place a licensee on
probation, or suspend or revoke a license to
practice medicine for enumerated reasons . . .
. When an allegation that may constitute
grounds for disciplinary action under the Act
comes to the Board’s attention, the Board
generally initiates an investigation. HO §
14-401(a);
the
If
10.32.02.03A.
COMAR
allegation concerns the standard of care and,
after an investigation, the Board elects to
pursue further investigation, the Board then
refers the complaint to the Medical and
Chirurgical Faculty of Maryland (“Med Chi”)
physician peer review. HO § 14-401(c)(2);
COMAR 10.32.02.03(B)(1).
The Board and Med Chi have adopted a
“Peer Review Handbook” that governs the peer
review process. Med Chi prepares a report
addressing the allegations against the
physician and submits it to the Board.
After receiving the Med Chi report, the

Board determines whether reasonable cause
exists to charge the physician with a failure
to meet appropriate standards of care. COMAR
10.32.02.03(B)(2). If the Board files a
charge, it refers the matter to an
administrative prosecutor and sends notice to
the physician. COMAR 10.32.02.03(C)
At that point, the physician is entitled
to a contested case hearing before an
administrative law judge (“ALJ”), in the
Office of Administrative Hearings (“OAH”),
pursuant to the Administrative Procedure Act,
Md.Code (1984, 1999 Repl. Vol.), section
10-201 et seq. of the State Government Article
(“SG”). HO § 14-405(a); see also COMAR
10.32.02.03(D). Following the hearing, the ALJ
issues findings of fact, conclusions of law,
and
a
proposed
disposition.
COMAR
10.32.02.03(E)(10). . . . Either party may
file exceptions to the ALJ’s findings and
proposed disposition. COMAR 10.32.02.03(F).
The Board is not bound by the decision of
the ALJ. After receiving the ALJ’s proposed
decision, the Board must review the record and
the ALJ’s proposal, and hold a hearing on any
exceptions. COMAR 10.32.02.03(F). It then
issues a final decision stating its findings
of facts, conclusions of law, and a
disposition
of
the
charge.
COMAR
10.32.02.03(E)(10).
The Board’s final decision is subject to
judicial review in the circuit court in
accordance with the Administrative Procedure
Act, and then to appeal to this Court. HO §
14-408(b). (Footnotes and some citations
omitted.)
See also Md. Bd. of Physicians v. Elliott, 170 Md. App. 369
(reviewing standards for appellate review of Board decision
overruling ALJ), cert. denied, 396 Md. 12 (2006).
FACTS AND LEGAL PROCEEDINGS

We recount the facts as they were found by the Board.2 Dr.
Cornfeld practices obstetrics and gynecology. On October 28, 1999,
he performed a Loop Electrosurgical Excision Procedure (LEEP) on a
31 year old patient admitted to Montgomery General Hospital (MGH),
in order to remove abnormal cervical tissue. The patient was
placed under general anesthesia for the procedure.

The excision procedure is performed with a Bovie machine,
which is a surgical instrument that heats up a fine metal wire
shaped into a loop, which in turn is connected to a “Bovie pencil.”
The pencil and loop are inserted through the vagina to remove
abnormal tissue.
Dr. Cornfeld had a card on file at MGH stating that his
preference was to have the Bovie machine set at 70 for coagulation
and 70 for cervical conization (“cutting”) procedures such as the
one he performed that day. But the operating room nurse
responsible for overseeing the equipment and patient preparation
that day, Sheryl Dickey, initially set the Bovie machine at 50 for
both coagulation and cutting, in accordance with standard settings
used in most procedures. Dr. Cornfeld instructed Ms. Dickey to
change both settings to 70, and she did so.
During the procedure, Dr. Cornfeld burned the patient twice,
causing a laceration of approximately 6 centimeters. He repaired
this with two large Vicryl stitches.

2Dr. Cornfeld does not allege any factual error.
5

Nurse Dickey notified a nurse supervisor who was in the
operating room, Joan Fitzgerald, of the burn and sutures. After
observing the burn, Fitzgerald left the operating room to consult
a supervisor. When Dr. Cornfeld announced that he had concluded
the procedure, Nurse Dickey asked the anesthesiologist not to wake
the patient because another surgeon would be coming in to review
the patient. Nurse Fitzgerald returned and advised Dr. Cornfeld
that she had been instructed to have another physician check the
patient before she left the operating room. Dr. Cornfeld replied,
“Do what you need to do,” then left the operating room. No other
surgeon was in the operating room at the time. It was at least two
to three minutes before Dr. Thomas Vincent arrived.
Dr. Vincent reviewed the patient, removed the sutures, and
resutured the laceration with smaller sutures. After concluding
the repair, Dr. Vincent located Dr. Cornfeld, explained what he had
done, and asked Dr. Cornfeld what had happened. Dr. Cornfeld
discussed the case with Dr. Vincent while the patient was in
recovery. The patient did not suffer any severe or long-term
effects from the laceration or suturing.
MGH suspended Cornfeld’s hospital privileges shortly after the
incident. In July 2000, in a peer review investigation by the
hospital, Dr. Cornfeld stated under oath:
I don’t think anybody in our department ever
sets a bovie at 70 or a cautery at 70 as a
starting point. I haven’t heard that they
did. . . . I thought it was routine that when

I would come in this thing would be set at 40
or 50.
Following its investigation and peer review, the hospital revoked
Dr. Cornfeld’s privileges.
The Board initiated an investigation in January 2000. In
February 2000, through his attorney, Dr. Cornfeld filed written and
signed responses to the Board’s inquiry, stating:
The nurse who operates this machine was
negligent in setting the machine to a heat of
seventy to eighty whereas the appropriate
setting used by Dr. Cornfeld is forty. Dr.
Cornfeld has performed this surgery on many
occasions at [MGH] and at other hospitals.
Dr. Cornfeld has standing instructions for the
setting of forty, and in every Leep Cone
Biopsy, other than this one, the nurse
operating the machine has set it to forty
without specific instructions from Dr.
Cornfeld other than the standing instructions.
The Board filed charges against Dr. Cornfeld in November 2003,
alleging both violations of standards of care and unprofessional
conduct in the practice of medicine. The three alleged violations
of the standard of care in treating the patient consisted of the
following:
1.
2.

Setting the Bovie machine too high for patient safety;
Performing an inadequate repair of the laceration caused
by the burn; and
Leaving an anesthetized patient unattended by another
surgeon in the operating room.
After an evidentiary hearing, an administrative law judge
initially found that Dr. Cornfeld breached all three standards of

care applicable to these charges. After hearing and exceptions,
however, the Board concluded that “[t]he clear and convincing
evidence demonstrates only that Dr. Cornfeld left an anesthetized
patient unattended in the operating room and thus violated section
14-404(a)(22).”
The Board’s separate charge of “unprofessional conduct in the
practice of medicine” was based on Cornfeld’s statements regarding
his instructions for settings on the Bovie machine. These were
made to the hospital during its peer review investigation, and to
the Board during its investigation and disciplinary proceedings.
The ALJ concluded that these statements were misrepresentations
because Dr. Cornfeld had standing instructions to set the Bovie
machine at 70, and specifically instructed Nurse Dickey to increase
the setting from 50 to 70 before the procedure in question began.
Because Dr. Cornfeld’s misrepresentations were made during the
hospital peer review and Board investigation, however, the ALJ
determined that they did not fall within “the practice of
medicine.”
The Board sustained the State’s exception to that conclusion,
determining that Dr. Cornfeld’s misrepresentations during hospital
peer review and Board proceedings occurred in the practice of
medicine, and violated HO section 14-404(a)(3). The Board reasoned
that “[b]oth MGH’s and the Board’s investigations involved the
manner in which Dr. Cornfeld practiced medicine” and “the manner in

which he had treated a patient.” In support, it cited its own
precedents that making a false application or submitting false
testimony for a Board proceeding are “clearly within the practice
of medicine.”
The Board sanctioned Dr. Cornfeld by revoking his license to
practice medicine until he satisfied certain enumerated conditions,
including obtaining “a neuropsychological evaluation” and report,
undergoing “a psychiatric evaluation” and therapy as recommended,
and completing an “ethics course,” all of which would be selected
and reviewed by the Board. Once his suspension lifts, Dr. Cornfeld
would continue on probation for three years, during which his
practice is subject to “Board review and peer review” at the
Board’s discretion.

DISCUSSION
Review Of Board’s Decision
The standards governing judicial review of the Board’s
decision regarding Dr. Cornfeld are set forth Bd. of Physician
Quality Assurance v. Banks, 354 Md. 59, 67-69 (1999):
an
reviewing
in
role
court’s
A
administrative agency adjudicatory decision is
narrow; it 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.
In applying the substantial evidence
test, a reviewing court decides whether a
reasoning mind reasonably could have reached
9

the factual conclusion the agency reached. A
reviewing court should defer to the agency’s
fact-finding and drawing of inferences if they
are supported by the record. A reviewing court
must review the agency’s decision in the light
most favorable to it; A A A the agency’s decision
is prima facie correct and presumed valid, and
A A A it is the agency’s province to resolve
conflicting evidence and to draw inferences
from that evidence.
Despite some unfortunate language that
has crept into a few of our opinions, a
court’s task on review is not to substitute
its judgment for the expertise of those
persons who constitute the administrative
agency. Even with regard to some legal
issues, a degree of deference should often be
accorded the position of the administrative
agency. Thus, an administrative agency’s
interpretation and application of the statute
which the agency administers should ordinarily
be given considerable weight by reviewing
courts. Furthermore, the expertise of the
agency in its own field should be respected.
(Internal quotation marks and citations
omitted.)
See also Md. Code (1984, 2004 Repl. Vol., 2006 Cum. Supp.), § 10-
222(h) of the State Government Article (court may affirm, remand
for further proceedings, reverse, or modify Board’s decision if it
is affected by an error of law, unsupported by substantial
evidence, arbitrary or capricious).
I.
Unprofessional Conduct “In The Practice Of Medicine”
As detailed above, the Board may sanction a physician who is
“guilty of immoral or unprofessional conduct in the practice of
medicine” or “willfully makes or files a false report or record in

the practice of medicine.” HO § 14-404(a)(3), § 14-
404(a)(11)(emphasis added). The practice of medicine is
statutorily defined as follows:
(l) Practice medicine. – (1) “Practice
medicine” means to engage, with or without
compensation, in medical:
(i) Diagnosis;
(ii) Healing;
(iii) Treatment; or
(iv) Surgery.
(2) “Practice medicine” includes doing,
undertaking, professing to do, and attempting
any of the following:
(i) Diagnosing, healing, treating, preventing,
prescribing for, or removing any physical,
mental, or emotional ailment or supposed
ailment of an individual:
1. By physical, mental, emotional, or other
process that is exercised or invoked by the
practitioner, the patient, or both; or
2. By appliance, test, drug, operation, or
treatment . . . . ;
HO § 14-101(l).
Dr. Cornfeld argues that the Board “committed legal error”
when it concluded that his misrepresentations to MGH and the Board
occurred in “the practice of medicine.”3 He asserts that this case

3The Board charged and found Dr. Cornfeld guilty of
“professional misconduct,” evidently treating his “making [of] a
false report or record” as a species of “professional misconduct.”
Cornfeld does not argue that the Board erred in disciplining him
(continued…)

is “controlled by the Court of Appeals’ 1984 ruling in McDonnell v.
Comm’n on Medical Discipline, 301 Md. 426 (1984),” which construed
the practice of medicine to exclude physician misconduct involving
a civil malpractice trial, rather than by its later decisions in
Banks, 354 Md. at 76, and Finucan v. Md. Bd. of Physician Quality
Assurance, 380 Md. 577, cert. denied, 543 U.S. 862, 125 S. Ct. 227
(2004), in which the Court more broadly described the practice of
medicine in ruling that it may encompass sexual misconduct toward
patients and co-workers. We disagree.
McDonnell, Banks, and Finucan
In McDonnell, the Court of Appeals reversed a ruling that a
physician’s efforts to influence expert witnesses who were
scheduled to testify against him in a medical malpractice trial4

(…continued)
for “professional misconduct” under subsection 14-404(a)(3), rather
than for “making a false report or record” under subsection 14-
404(a)(11). Both of these subsections require a showing that the
misconduct occurred “in the practice of medicine.” Dr. Cornfeld’s
challenge in this Court is limited to whether his misconduct
occurred “in the practice of medicine.” Therefore, we assume
arguendo that misconduct chargeable under subsection 14-404(a)(11)
may alternatively be disciplined under subsection 14-404(a)(3).
See generally Felsenberg, 351 Md. at 304 (“The fact that particular
conduct is proscribed by two or more statutes does not . . . .
ordinarily preclude a prosecution under any one of the statutes
that applies”).
4In that case, this Court reversed the defense verdict in the
underlying medical malpractice action on the ground that the
patient was entitled to an instruction that the jury could consider
evidence regarding McDonnell’s intimidation to be evidence of
McDonnell’s “consciousness of the weakness of his case.” See Meyer
v. McDonnell, 40 Md. App. 524, 534 (1978).
12

constituted sanctionable conduct in the practice of medicine,
within the meaning of the predecessor to current section 14-
404(a)(3). See McDonnell, 301 Md. at 437. Dr. McDonnell’s
inappropriate contacts are detailed in Meyer v. McDonnell, 40 Md.
App. 524, 525-26 (1978). The first interference occurred during
trial and resulted in the witness refusing to testify.5 The second
incident occurred after McDonnell became “incensed” at the

5On the fourth day of the medical malpractice trial, McDonnell
directed his secretary to call Dr. Robert P.
Keyser, of Miami, Florida, an acquaintance and
a fellow member of the American Scoliosis
Society, and tell him that Dr. Robert B.
Nystrom was scheduled to testify against
appellee and that his testimony would be
transcribed and disseminated to Dr. Nystrom’s
local medical society in Miami and to the
American Academy of Orthopedic Surgeons. The
secretary immediately carried out such a call,
. . . . then requested that Dr. Keyser [call]
before Dr. Nystrom testified, and gave him the
phone numbers of both trial counsels and the
trial judge. Just before noon on that same
day, Dr. Keyser telephoned Dr. Nystrom, who
was in the City Bar Library awaiting
commencement of his testimony. Dr. Keyser, who
was a mentor of Dr. Nystrom and a man whom Dr.
Nystrom admired and respected, related the
information about dissemination of testimony,
and, with the preface that “this is not a
threat, but,” admonished him to tread lightly.
. . . Dr. Nystrom was intimidated by the
communication and felt that he would be unable
to testify with a normal degree of candor.
Id. at 525-26.

testimony of another expert witness.6

6McDonnell testified that he asked a friend to deliver a
message to another of the plaintiff’s experts. Specifically,
McDonnell

telephoned his friend and colleague, Dr.
William
Baltimore
a
Finney,
M.
H.
neurosurgeon. He asked Dr. Finney to call Dr.
Thomas H. Langfitt, . . . a long-time friend
of Dr. Finney, and advise him that Dr. Francis
J. Pizzi was scheduled to testify against
appellee and that his testimony would be
transcribed and disseminated to his local
medical society in Trenton, New Jersey. Dr.
Finney made such a call that same evening,
advising Dr. Langfitt that Dr. Pizzi[’s] . . .
testimony would be disseminated, and that it
might not be a particularly good thing for Dr.
Pizzi to testify in an out of state medical
malpractice trial with an impending appearance
before the American Board of Neurological
Surgery for the oral portion of his
certification examinations.
Dr. Langfitt . . . reached Dr. Pizzi by
telephone at his home and relayed the
information conveyed by Dr. Finney, including
the admonition as to the impending oral Board
examinations. Dr. Langfitt was the person
responsible for bringing Dr. Pizzi into
neurosurgery. He also trained Dr. Pizzi who
characterized him as “very important to me,”
and a person whom he admired and respected.
Dr. Pizzi expressed to Dr. Langfitt that he
was fearful that he might now be blackballed
by the Board as a result of false information
which may have been spread about him as a
“violator of the conspiracy of silence,” but
that his evaluation of the case was
objectively correct and that he felt committed
to give an honest opinion in testimony. Dr.
Langfitt told him to let his conscience be his
guide with regard to continuing his testimony,
but that they would have to “sit down and talk
about a few things afterward.”
(continued…)

The McDonnell Court specifically rejected the Attorney
General’s argument that such misconduct “was inextricably related
to the practice of medicine” because it “occurred in the
utilization of his medical office and while he was acting as a
physician[.]” See id. at 433-34. Reviewing the language of the
statute, the Court of Appeals observed that the legislature
expressly outlined and defined nineteen forms
of physician misconduct, some of which had no
immediate connection with the diagnosis, care
or treatment of patients or the practice of
medicine, such as habitual intoxication,
conviction of a crime of moral turpitude, or
the personal use of illegal drugs. In only two
of the nineteen described types of misconduct
are the disciplinary infractions explicitly
limited to a physician’s act “in his practice
as a physician,” i.e.:
“(8) Immoral conduct of a physician in his
practice as a physician.
(9) Willfully making and filing false reports
or records, in his practice as a physician.”
Id. at 435-36.7
For this reason, the McDonnell Court concluded, “it is not any
immoral conduct of a physician, or any willful filing of a false

(…continued)
Id. at 527-28.
7Current HO subsections 14-104(a)(3) and 14-404(a)(11) set
forth the revised and recodified version of this statute. After
McDonnell, the legislature expanded the misconduct provision to
explicitly include “unprofessional and immoral misconduct[.]” See
Dr. K. v. State Bd. of Physician Quality Assurance, 98 Md. App.
103, 109 (1993), cert. denied, 334 Md. 18, cert. denied, 513 U.S.
817, 115 S. Ct. 75 (1994).

report which constitutes ‘unprofessional conduct’; rather, the
misconduct must occur in the physician’s ‘practice as a
physician.’” Id. at 435. Given the “punitive aspect” of the
Board’s disciplinary proceedings, and that the legislature intended
these provisions to reach only immoral conduct that is “directly
tied to the physician’s conduct in the actual performance of the
practice of medicine, i.e., in the diagnosis, care, or treatment of
patients.[,]” the Court held that the statutory language “should be
strictly construed against the disciplinary agency.” Id. at 436-
37. Thus, conduct that has merely “a general or associative
relationship to the physician in his capacity as a member of the
medical profession” is not sanctionable by the Board. Id. at 437.
Applying this view of the statute, the Court of Appeals concluded
that, although “Dr. McDonnell’s act in initiating the improper
phone calls was related to his professional practice,” the calls
were “not done in the course of the actual practice of medicine[.]”
Id.

In Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 71
(1999), the Court of Appeals affirmed the Board’s decision that a
physician’s sexual harassment of hospital employees occurred in the
practice of medicine. The doctor argued unsuccessfully that “none
of his conduct [was] within the practice of medicine because, when
it occurred, he was not diagnosing, treating or evaluating
patients,” but “merely ‘chatting or socializing with co-workers.’”

Id. Following courts elsewhere, the Court of Appeals rejected such
“an extremely technical and narrow definition of the practice of
medicine.” See id at 74. The Banks Court reasoned that limiting
section 14-404(a)(3) to misconduct that occurs “in a non-clerical
task” committed “in the immediate process of diagnosing,
evaluating, examining, or treating a patient” “would lead to
unreasonable results and render the statute inadequate to deal with
the many situations which may arise.” Id. at 73.
Instead, the Court concluded, the touchstone for determining
whether misconduct occurred “in the practice of medicine” must be
whether it was “sufficiently intertwined with patient care” to pose
a threat to patients or the medical profession. See id. at 76-77.
When the misconduct occurs “in a hospital setting,” the answer to
that question is one the Board “is particularly well-qualified to
decide[.]” Id. at 76.
The Board could reasonably hold that Dr.
Banks’s conduct of sexually harassing hospital
employees was within the practice of medicine
because he was on duty and in the working
areas of the hospital. When on duty, Dr. Banks
was responsible for admitting patients, caring
for patients, and assisting in the operating
room and emergency department. . . . When Dr.
Banks was on duty he was there for the purpose
of practicing medicine; i.e., for the
“diagnosis, care, or treatment of patients.”
Dr. Banks sexually harassed his co-workers who
were present in the working areas of the
hospital in connection with the practice of
medicine. This conduct has more than merely a
“general or associative relationship” to Dr.
Banks’s capacity as a member of the medical

profession. The connection to the practice of
medicine was sufficient for the Board to
conclude that it is “in the actual performance
of the practice of medicine.”
Id. at 72-73 (emphasis added).
Of particular interest to this appeal is the manner in which
the Banks Court distinguished McDonnell.
We agree with the Board that this case is
distinguishable from McDonnell. In McDonnell,
the physician’s conduct occurred during
judicial proceedings against him based upon
conduct constituting malpractice. His conduct
did not occur in the workplace where he was
present for the purpose of practicing
medicine.
Id. at 72 (emphasis added).
In its most recent decision interpreting the “practice of
medicine” language in section 14-404(a), the Court of Appeals held
that a physician’s misconduct in engaging in consensual sexual
relations with patients under his care occurred in the practice of
medicine. In Finucan v. Md. Bd. of Physician Quality Assur., 380
Md. 577, 597 (2004), the Court reiterated its holding in Banks
“that if the physician’s misconduct relates to the effective
delivery of patient care, the misconduct occurs in the practice of
medicine.” It again rejected a “narrow interpretation” of “the
practice of medicine,” this time dismissing arguments that the
Board’s authority to sanction misconduct is limited to actions
while the physician is “‘on duty’ in medical environs,” or to
actions that “reflect[ed] adversely on his technical skills as a

physician.” See id. at 598, 601. To the contrary, the Court
reasoned, misconduct need not “raise doubts about the individual’s
grasp of particular technical skills.” Id at 601. It is enough
that the misconduct “indicate[s] unfitness to practice medicine” by
“rais[ing] reasonable concerns that an individual abused . . . the
status of being a physician in such a way as to harm patients or
diminish the standing of the medical profession in the eyes of a
reasonable member of the general public.” Id. at 601.
Quoting our opinion, Judge Harrell pointed to “four
particularly cogent points” supporting the Board’s conclusion that
Dr. Finucan’s misconduct was intertwined with patient care in such
a manner that it posed a threat to his patients and “diminishe[d]
the standing of the medical profession as caregivers.” See id. at
598, 601. Specifically, Finucan’s sexual relationships (1) “grew
directly out of . . . and were entangled with” his physician-
patient relationships, (2) “exploited, to his own ends, the trust
that his patients placed in him as their physician[,]” (3) “risked
losing . . . the objectivity that any physician must have when
caring for patients[,]” and (4) “damaged his patients emotionally.”
Id. at 598-99.

Dr. Cornfeld’s Contentions
Relying on McDonnell, Dr. Cornfeld argues that the responses

he gave to hospital and Board investigators8 concerning what
happened in the MGH operating room on October 28, 1999 did not
constitute “the practice of medicine.” In Cornfeld’s view, his
misconduct, like Dr. McDonnell’s, did not occur “in the practice of
medicine” because it “took place in the context of ‘judicial
proceedings’ against the doctor due to allegations of inappropriate
medical care.” The doctor argues that the Board erred “in
suggesting that in issuing Banks the Court of Appeals intended to
so dramatically broaden the definition of the phrase ‘practice of
medicine’ to encompass facts such as presented in this case.”
To be sure, unlike Finucan and Banks, the misconduct in this
instance does not consist of predatory sexual behavior involving
patients or hospital co-workers. Moreover, like McDonnell, this
case involves misconduct that occurred during proceedings that
arguably “adjudicated” the medical propriety of Dr. Cornfeld’s
care. In light of the Court of Appeals’ rejection of a “narrow
view” of the practice of medicine in both Banks and Finucan,
however, we do not agree with Dr. Cornfeld that McDonnell so
narrowly defined the practice of medicine that it necessarily

8The Board has established “peer review” procedures by which
“physicians within the involved medical specialty” evaluate “acts
of medical or surgical care,” as part of the Board’s investigation
into allegations of grounds for disciplinary action. See HO § 14-
401(c)(2), HO § 14-401(e), COMAR 10.32.02.02(20), COMAR
10.32.02.03.B. We shall refer to this type of evaluation for
disciplinary purposes as “Board investigation,” in order to
distinguish it from the type of peer review conducted by hospitals
for quality of care purposes.

excludes professional misconduct during hospital peer reviews and
Board disciplinary proceedings.
The discussion in McDonnell of what constitutes the practice
of medicine was limited. The Court of Appeals’ analysis simply
stated that it must be “directly tied to the physician’s conduct in
the actual performance of the practice of medicine, i.e., in the
diagnosis, care, or treatment of patients[.]” McDonnell, 301 Md. at
435. We find nothing in McDonnell to suggest that all misconduct
during an adjudicative proceeding is necessarily excluded from the
“practice of medicine,” or that a physician’s dishonesty during
hospital peer review and Board investigation of patient care cannot
be “directly tied to” his practice of medicine.
Moreover, McDonnell is factually distinguishable in critical
respects. Dr. McDonnell’s misconduct consisted of interfering with
prospective witnesses in a medical malpractice trial involving his
former patient. He initiated improper phone calls from his medical
office, in an effort to influence testimony by fellow physicians,
by warning them that there would be professional consequences for
testifying against him. But McDonnell did not discuss his
diagnosis or treatment of any patient. See id. at 429-30; Meyer,
40 Md. App. at 525-27. Thus, his misconduct did not occur in the
practice of medicine, because it did not concern patient care
issues and did not involve the exercise of McDonnell’s judgment as
a physician.

In its subsequent decisions in Banks and Finucan, the Court of
Appeals examined in greater detail the scope and policies
underlying the standard it articulated in McDonnell. Explicitly
rejecting a “narrow view” of the “practice of medicine[,]” the
Court emphasized that the nature and effect of a particular act of
professional misconduct determines whether it occurred in the
practice of medicine. Misconduct reasonably may be considered to
be in the practice of medicine when it “relates to the effective
delivery of patient care[.]” See Finucan, 380 Md. at 597; Banks,
354 Md. at 74. Such a relationship may be established by evidence
that the physician abused his status as a physician in a manner
that either harmed patients, created a substantial risk of harm to
them, or diminished the standing of the medical profession as
caregivers. See Finucan, 380 Md. at 601; Banks, 354 Md. at 74.
The presence of one or more of these effects sufficiently ties the
physician’s misconduct to the exercise of medical judgment and
duties to warrant a finding that it occurred “in the practice of
medicine.” See Finucan, 380 Md. at 598-99; Banks, 354 Md. at 62-
64; McDonnell, 301 Md. at 436-37.
Given the blatant “on the job” sexual misconduct of Drs. Banks
and Finucan, neither of those decisions definitively answers
whether Dr. Cornfeld’s misconduct occurred in the practice of
medicine. We have not found a reported case considering whether a
treating physician’s dishonesty in hospital peer review or state

disciplinary proceedings falls within “the practice of medicine.”9
The Board’s conclusion that Dr. Cornfeld’s false statements to
the hospital and the Board constituted “professional misconduct in
the practice of medicine” has “considerable weight” in this Court,
because the Board’s expertise in interpreting and applying HO
section 14-404(a) is “entitled to judicial respect,” particularly
in a case involving misconduct in a hospital setting. See Finucan,
380 Md. at 590; Banks, 354 Md. at 69. In this instance, we agree
with the Board that Dr. Cornfeld’s false statements “involved the
manner in which [he] practiced medicine” and “the manner in which
he treated a patient,” such that they are “directly tied to” the
“effective delivery of patient care.”
Dr. Cornfeld stated under oath to his fellow physicians at MGH

9Although there are a number of cases and commentaries
discussing whether false testimony given by a physician acting as
an expert witness in a medical malpractice action falls within “the
practice of medicine” for disciplinary purposes, that is not our
case. See, e.g., Jennifer A. Turner, Going After the ‘Hired Guns’:
Is Improper Expert Witness Testimony Unprofessional Conduct or the
Negligent Practice of Medicine?, 33 Pepperdine L. Rev. 275 (Jan.
2006)(collecting cases and advocating that state medical boards
take disciplinary action against improper expert witness
testimony); Russell M. Pelton, Medical Societies’ Self-Policing of
Unprofessional Expert Testimony, 13 Annual of Health L. 549
(2004)(advocating that medical profession has “the responsibility
to discipline its members who testify irresponsibly as expert
witnesses”); Joseph v. D.C. Bd. of Medicine, 587 A.2d 1085, 1091
(D.C. 1991)(“Dr. Joseph’s inflation of his credentials as an expert
witness” constituted unprofessional conduct in the practice of
medicine because it “bore directly on the question whether his
medical diagnosis would be credited”); Mo. Bd. of Registration for
the Healing Arts v. Levine, 808 S.W.2d 440, 443 (Mo. Ct. App.
1991)(physician’s allegedly false testimony as expert witness was
not practice of medicine).

that, as a matter of routine, he expected the bovie machine “would
be set at 40 or 50,” when in fact he had given standing written
instructions to the hospital, as well as specific instructions to
operating room nurses on the day of the surgery, to set the machine
at 70. Cornfeld made these false statements to peer reviewers at
the hospital where he performed the surgery in question, and
repeated them to Board investigators, in order to influence
decisions concerning the quality of his medical care to a patient
and his fitness to practice medicine at MGH specifically, and in
Maryland generally.
We are persuaded that Cornfeld’s dishonesty in hospital peer
review proceedings and the Board investigation qualifies as
unprofessional conduct in the practice of medicine. There can be
no debate that a physician’s lack of veracity regarding events in
an operating room constitutes unprofessional conduct. Indeed, as
this Court recognized long ago, fundamental principles of medical
ethics require that “[a] physician shall deal honestly with
patients and colleagues[.]” Dr. K. v. State Bd. of Physician
Quality Assurance, 98 Md. App. 103, 110 (quoting Am. Med. Ass’n,
The Principles of Med. Ethics, § 2), cert. denied, 334 Md. 18
(1993), cert. denied, 513 U.S. 817, 115 S. Ct. 75 (1994); see COMAR
10.32.02.10 (“The Board may consider the Principles of Ethics of
the American Medical Association”).
Moreover, by its very nature, hospital peer review of medical

care rendered to a surgical patient “relates to the effective
delivery of patient care,” and therefore constitutes the practice
of medicine. The by-laws of MGH specifically required Dr. Cornfeld
to participate in peer review, which is a standard duty in the
modern practice of medicine.10 See, e.g., Susan O. Scheutzow,
Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review
Information: More Imagined Than Real, 7 J. L. & Health 169, 169
(1993)(“Peer review of health care professionals has become a
standard process in hospitals”). As every physician knows,
hospital peer review is not merely a necessary condition to
maintaining the privilege to treat patients at that hospital, but
it also serves an important patient care purpose. See, e.g., Brem
v. DeCarlo, Lyon, Hearn & Pazourek, P.A., 162 F.R.D. 94, 97 (D. Md.
1995)(by extending qualified immunity to physicians participating

10State and federal laws effectively mandate that hospitals
conduct peer review. In 1986, Congress enacted the Health Care
Quality Improvement Act (HCQIA) “for the express purpose of
‘improv[ing] the quality of medical care by encouraging physicians
to identify and discipline other physicians who are incompetent or
who engage in unprofessional behavior.’” Goodwich v. Sinai Hosp.
of Baltimore, Inc., 343 Md. 185, 196 (1996). By its own terms, the
legislation was designed to redress “‘[t]he increasing occurrence
of medical malpractice’” by seeking “‘to improve the quality of
medical care’” “‘through effective professional peer review.’” Id.
(quoting 42 U.S.C. § 11101(3)). To advance that objective, “the
HCQIA provides participants in peer review activities with
qualified immunity from liability for monetary damages in suits
brought by the physicians who were the subjects of these review
activities.” Id. at 196-97; see 42 U.S.C. § 11111(a). To qualify
for such immunity, the peer review must be undertaken, inter alia,
“in the reasonable belief that the action was in the furtherance of
quality health care[.]” 42 U.S.C. § 11112(a).
25

in peer review, “Maryland legislature sought to foster effective
review of medical care and thereby improve the quality of health
care”); Bonner v. Sisters of Providence Corp., 239 Cal. Rptr. 530,
537 (Cal. Ct. App. 1987)(“Hospital review boards . . . review their
physicians’ conduct . . . for the purpose of determining whether
the medical staff members provide the quality of care the hospital
requires”).
Dr. Cornfeld’s false statements concerned his instructions for
settings on the surgical instrument he used to operate, a matter
that required his medical judgment in a specific surgical
procedure. These misrepresentations were made to persons
responsible for evaluating Cornfeld’s medical care to patients at
MGH. Such misrepresentations therefore were “directly tied” to
medical “treatment” and “surgery,” within the statutory definition
of “practice medicine.” See HO § 14-101(l); McDonnell, 301 Md. at
437. Indirectly, as well, such dishonesty “diminishes the standing
of the medical profession as caregivers.” See Finucan, 380 Md. at
597, 601; Banks, 354 Md. at 74.
The same false statements were made to the Board, a
governmental agency responsible for investigating and disciplining
physicians for professional misconduct. “The Board’s mission [is]
to regulate the use of physician’s licenses in Maryland,” Dr. K.,
98 Md. App. at 118, in order “to protect and preserve the public
health[.]” Comm’n on Medical Discipline v. Stillman, 291 Md. 390,

405-06 (1981); see Aitchison v. State, 204 Md. 538, 544, cert.
denied, 348 U.S. 75 S. Ct. (1954). Making a false statement to a
physician disciplinary board meets the Banks “sufficiently
intertwined with patient care” standard, see Banks, 354 Md. at 76,
when the physician under investigation made the statement and it
related to patient care provided by the same physician. This
differs from the witness tampering by Dr. McDonnell in the course
of a civil malpractice case, a proceeding whose purpose is to
obtain compensation for the plaintiff, which is not brought for the
purpose of maintaining high standards in the medical profession.
A contrary conclusion “would lead to unreasonable results.”
See Banks, 354 Md. at 75. To exclude dishonesty in hospital peer
review proceedings as sanctionable misconduct in the practice of
medicine would mean that lying directly to a patient about what
occurred during her surgery would qualify as unprofessional conduct
in the practice of medicine, but lying to a hospital about the same
surgery during peer review proceedings concerning that same patient
would not qualify as unprofessional misconduct in the practice of
medicine. A similar discordant result would follow if we were to
hold that Cornfeld’s false statement to the Board did not fall
within the scope of practicing medicine. Such an anomaly would
severely undermine the purpose of section 14-404.
We hold that the Board had a reasonable factual and legal
basis to conclude that Cornfeld’s lie, made under oath in his

capacity as a treating physician, about his own medical judgment
and performance in surgery, in order that his treatment of a
patient’s condition would be approved by peer reviewers and the
Board, constituted unprofessional misconduct “in the practice of
medicine.”

II.
Delay In Board Investigation
HO section 14-404(j) addresses the length of a Board
investigation:
(j)(1) Time for disposition of complaint. – It
is the intent of this section that the
disposition of every complaint against a
licensee that sets forth allegations of
grounds for disciplinary action filed with the
Board shall be completed as expeditiously as
possible and, in any event, within 18 months
after the complaint was received by the Board.
(2) If the Board is unable to complete the
disposition of a complaint within 1 year, the
Board shall include in the record of that
complaint a detailed explanation of the reason
for the delay. (Emphasis added.)
Dr. Cornfeld complains that “the Board did not complete its
investigation or dispose of the complaint . . . within 18 months
from the date the complaint was filed,” and did not otherwise
explain the reasons for the delay. The investigation was opened on
January 12, 2000, but charges were not issued for more than three
years, until November 21, 2003. Dr. Cornfeld contends that he
repeatedly raised the untimeliness of the investigation to the
Board, but the Board failed to comply with either the statutory

time frame or the statutory requirement that any extension beyond
one year be explained in detail on the record. In his view, “[t]he
Board would have there be no consequence at all for its failure to
comply with the Medical Practice Act.” The proper remedy, he
contends, is dismissal of the charges for failure to comply with
the statute.
We agree with the Board that any viable complaint that Dr.
Cornfeld may have had about the Board’s delay and failure to
explain, as required by section 14-404(j), does not merit dismissal
of the charges. To be sure, we are troubled by the length of time
between initial complaint and filing of charges, as well as the
Board’s apparent disregard of the “extension explanation” provision
in the statute.11 Nevertheless, we concur that this is another
instance when the legislature’s failure to include a penalty for
failure to act within a prescribed time indicates that the
provision is directory, rather than mandatory. See, e.g., Md.
State Bar Ass’n v. Frank, 272 Md. 528, 533 (1974)(rule without
sanction for violation is more likely to be directory); Pope v.
Sec’y of Personnel, 46 Md. App. 716, 717 (1980)(“one of the
contextual factors relied upon . . . to hold the use of ‘shall’
directory is when a statute provides no penalty for failure to act

11Cornfeld did not waive his complaint, as the ALJ’s opinion
makes clear.

within a prescribed time”), cert. denied, 289 Md. 739 (1981).
In Solomon v. Bd. of Physicians, 132 Md. App. 447, 456, cert.
denied, 360 Md. 275 (2000), this Court held that the legislative
history of the 18 month period in section 14-404(j)(1) indicates
that this time frame is directory, not mandatory. See 1988 Md.
Laws, ch. 109 (providing that “time . . . frames for . . .
completing the disposition of complaints . . . are directory to the
Board . . . and may not be construed as a defense or bar to a
complaint or any action on a complaint against a licensee in any
proceedings arising out of th[e] Act”). For the same reason, we
conclude that the ensuing explanation requirement in subsection
(j)(2) is also directory rather than mandatory. It would be
inconsistent to hold that failing to explain why an investigation
is taking longer is mandatory. In accordance with HO § 14-405(g),
therefore, “hearing of charges may not be . . . challenged by any
procedural defects alleged to have occurred prior to the filing of
charges[,]” including complaints that the Board failed to comply
with section 14-404(j).
Moreover, Dr. Cornfeld had a full and fair opportunity to be
heard concerning the charges against him. He has never contended
that the lack of explanation for the delay prejudiced him. These
are not circumstances in which such prejudice might be presumed.
III.
Violation Of Standard Of Care
Dr. Cornfeld challenges whether there is substantial evidence
30

in the record to support the Board’s finding by clear and
convincing evidence that he left an anesthetized patient
“unattended” in the operating room. He points to a hospital form
completed at the time of the incident, which states that he left
the operating room at 11:35 and that Dr. Vincent entered at 11:35,
as “more reliable evidence as to what occurred on October 28, 1999,
than testimony of witnesses who were testifying from their
recollection of an event that took place years in the past.”
Moreover, Dr. Cornfeld asserts, the evidence shows that the
patient was attended at all times in the OR by the anesthesiologist
(Dr. Wei), the circulating nurse (Ms. Dickey), and a nurse
technician (Ms. Calpin). In addition, he reiterates his testimony
that “it is not unusual for the surgeon to leave the operating room
before the patient wakes up” for a variety of reasons, including
taking and viewing x-rays.
The Board counters with the following evidence:
Dr. Vincent stated that Dr. Cornfeld was not in the operating
room when he arrived.
Nurse Sherry Dickey reported that Joan Fitzgerald, the nurse
supervisor in the operating room, “told Dr. Cornfeld that we
could not take the patient out of the OR until another doctor
saw the patient. He said ‘do what you have to do’ and left
the room.”
Ms. Calpin, a certified operating room technician during the
biopsy, made a written statement shortly after the incident,
stating that Dr. Cornfeld sutured the laceration, then “took
his gown off & left the room. Dr. Vincent arrived a few
minutes later[.]”
Nurse Dickey also testified that “the data entry on the

•

computer system” used to complete the form cited by Dr.
Cornfeld “only allowed a five minute increment. And,
basically, we rounded off lower or higher to the five minutes
depending on what time it was.”
The Board’s expert witness testified that the standard of care
required that Dr. Cornfeld “should have stayed” in the
operating room “until Dr. Vincent arrived. And then he could
have explained to Dr. Vincent what happened and ask for Dr.
Vincent’s opinion if anything further needed to be done.”
MGH’s Medical Staff Executive Committee concluded that “it was
inappropriate” for Dr. Cornfeld “to leave the OR before the
patient was extubated.”
MGH’s OB/GYN Review Committee concluded that Dr. Cornfeld
inappropriately “left an anesthetized surgical patient
unattended.”
We agree with the Board that the cited evidence provides a
substantial factual basis for the Board’s finding that Dr. Cornfeld
violated the applicable standard of care. In particular, the Board
was entitled to credit Nurse Dickey’s explanation that the “11:35″
arrival and departure times on the report cited by Dr. Cornfeld
resulted from the five minute increment limitation on data entries.
Moreover, Dr. Cornfeld’s reliance on the 11:35 a.m. time report is
undermined by his admission that he “exited the operating room upon
being informed that Dr. Vincent ‘would be right there’ as he left.”
As for the contention that leaving was acceptable, the Board had
substantial evidence to reject that view, given the contrary
opinions expressed by the Board’s expert and the hospital peer
reviewers.

IV.
Sanctions

Dr. Cornfeld complains next that “the sanction imposed by the
Board . . . is so disproportionate to his alleged offense as to
constitute an abuse of discretion, and arbitrary and capricious
agency action.” In support, he points to his “long and fruitful
career,” apart from this “single procedure” on a patient who was
not harmed during this “common and uncomplicated procedure.”
Moreover, he points out that the Board concurred with him that
there was insufficient evidence to show “that the setting for the
Bovie machine caused the burn” and that the disputes regarding
laceration repair “were legitimate matters of professional
disagreement.” In Cornfeld’s view, the sanction is simply too
harsh for leaving the operating room just before Dr. Vincent
arrived. Indeed, he contends, the patient “herself did not see
this matter as a big issue, and continued to have confidence in Dr.
Cornfeld seeking him out to deliver her next child.”
This Court has held that an administrative agency with
disciplinary and licensing authority “has broad latitude in
fashioning sanctions within [those] legislatively designated
limits,” so that it may place conditions on any suspension or
probation. See Neutron Prods., Inc. v. Dep’t of Environment, 166
Md. App. 549, 584, cert. denied, 392 Md. 726 (2006); Blaker v.
State Bd. of Chiropractic Examiners, 123 Md. App. 243, 264-65,
cert. denied, 351 Md. 662 (1998). “The arbitrary and capricious
standard . . . sets a high bar for judicial intervention, meaning

the agency action must be ‘extreme and egregious’ to warrant
judicial reversal[.]” Bd. of Physician Quality Assurance v.
Mullan, 381 Md. 157, 171 (2004). Thus, if the sanction is “lawful
and authorized,” the Board “need not justify its exercise of
discretion by findings of fact or reasons articulating why the
agency decided upon the particular discipline.” Md. Aviation
Admin. v. Noland, 386 Md. 556, 581 (2005).
We cannot say as a matter of law that the sanctions against
Dr. Cornfeld exceeded the discretionary range given to the Board.
The Board has statutory authority to “place any licensee on
probation or suspend . . . a license” for violations of the Medical
Practice Act. See HO § 14-404(a). Dr. Cornfeld violated the Act
by inappropriately leaving the operating room and by
misrepresenting his instructions to hospital personnel. We cannot
say that suspension and long term probation for Cornfeld’s breach
of the standard of care and professional misconduct are so “extreme
and egregious” as to warrant judicial intervention. See Mullan,
381 Md. at 171.

V.
Evidentiary Rulings
Dr. Cornfeld’s final assignment of error concerns evidentiary
rulings by the ALJ. The Administrative Procedure Act protects a
party’s right to “call witnesses,” “offer evidence, including
real evidence,” “cross-examine any witness,” and “present
summation and argument.” SG § 10-213(f). Although Dr. Cornfeld
34

acknowledges that an ALJ may exclude evidence that is incompetent,
irrelevant, immaterial, or unduly repetitious,” SG § 10-213(d), he
contends that “an ALJ can go too far, . . . and that is what
occurred in this case,” when she denied Dr. Cornfeld his “right to
pursue any theories of the case.”
Specifically, Dr. Cornfeld contends the following rulings
crippled his defense:
That he was not permitted to elicit testimony about an
•
incident that occurred the day before the surgery at issue in
these proceedings, which could have established the bias of
the same operating room nurse and technician who assisted him
on October 28. The doctor proffered to the Board that, on
that day, he performed a vaginal hysterectomy with the
assistance of “several witnesses against him, in which the
nurses failed to keep a catheter drained resulting in a hole
in the patient’s bladder.”
That he also was prevented from eliciting testimony on cross-
examination that “these nurses and the scrub technician were
smiling and giving high fives to each other on October 28,
1999 when Dr. Cornfeld left the operating room.”
Finally, that he was not permitted to “testify about what he
believed to be the true motive behind his suspension of
privileges at MGH – the hospital’s unwritten policy to seek
the retirement or removal of all doctors over the age of 70.”
After reviewing the portions of the record cited by Dr. Cornfeld in
support of these complaints, we cannot say that the Board denied
Cornfeld his right to defend himself.
Dr. Cornfeld cites only four pages of transcript in support of
his claim that he was denied an opportunity to present evidence
regarding the operating room incident on October 27. None of these
support his complaint that the ALJ intentionally or unreasonably

•

thwarted his presentation of evidence to support his “payback”
theory of the case arising from the “day before” incident.12
Moreover, we agree with the Board that the ALJ did not err in
refusing to permit Cornfeld to question Peter Monge, the CEO of
MGH, about the number of physicians over 70 years old who hold
privileges at MGH, on the ground that none of the charges against
Cornfeld concerned his age. Dr. Cornfeld proffered that such
evidence “could be material because there is a law of age
discrimination, and they would have to find an alternate . . .

12In the cited page of his opening statement, Cornfeld said
that “the day before the same group of nurses were present when a
catheter wasn’t draining. . . . And because a hospital-appointed
second assistant removed her retractor, a hole was put in the
bladder. I put the hole in the bladder.” We see no restriction by
the ALJ here. In addition, this statement does not explain why the
“day before” incident would be relevant to show bias by the same OR
staff that he conflicted with in this incident.
In the cited page from Nurse Dickey’s direct testimony, there
are no questions by Dr. Cornfeld about “the day before” incident.
In the cited page from Dr. Cornfeld’s cross-examination of Nurse
Dickey, Dr. Cornfeld asked: “When I left the room were you happy
and jumping up and down or smiling or give high-fives with the
scrub tech?” The State’s objection, for unspecified reasons, was
sustained. Cornfeld never attempted to find out why he could not
ask that question. Nor did he articulate to the ALJ why such
evidence would be relevant.
In the cited page from Dr. Cornfeld’s testimony, the ALJ
interrupted when, after testifying about the incident, Cornfeld
continued, “The day before, I had done–” The ALJ instructed
Cornfeld, “Do not talk about the day before. We’re only dealing
with” the October 28 incident. Dr. Cornfeld did not protest or
proffer any explanation for why that incident might be relevant to
his defense.
Finally, in the cited page from Dr. Cornfeld’s closing
argument, there is no mention of the “day before” incident.
36

reason” for revoking his hospital privileges. The ALJ allowed
Cornfeld to testify that MGH wanted him out, and that he had been
urged to retire because he was over 70. This was sufficient to
present his defense theory that the charges arising from the
October 28 surgery were pretextual.
JUDGMENT AFFIRMED. COSTS TO BE
PAID BY APPELLANT.