Board of Physicians v. Mullan

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Circuit Co urt for Baltim ore Cou nty Case No. 03-C-01-004854 IN THE COURT OF APPEALS OF MARYLAND No. 66 September Term, 2003 BOARD OF PHYSICIAN QUALITY ASSURANCE v. PAUL A. MULLAN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridg e, John C. (retired, specially assigned), JJ. Opinio n by Rak er, J. Filed: May 10, 2004 This case concerns the interpretation of a provision in the Maryland Administrative Procedure Act (APA), Md. Code (1984, 1999 Repl. Vol., 2003 Cum. Supp.) §§ 10-101 to 10305 of the State Government Article,1 that permits the summary suspension of a medical doctor s licen se su spension w ithout first giving the lice nsee notice and an op portunity to be heard when the public health, safety, or welfare imperatively requires emergency action. § 10-226(c)(2)(i). We must determine whether the passage of time between the agency s discovery of potential circumstances demanding summary suspension and the agency s final order to suspend is relevant to a f inding that th e suspens ion was im peratively required. I. On April 25, 2000, the parent of a minor patient treated by Dr. Paul A. Mulla n, a pediatrician, filed a written complaint with the State Board of Physician Quality Assurance (the Board). The complaint a lleged that Dr. Mullan had treated her son while under the influence of alcohol on April 10, 2000. On May 17, 2000, a staff member of the Board visited Dr. Mullan at his office to give him a copy of the complaint as well as a letter from the Board demanding a written response within fifteen days to the parent s allegations. The staff also served Dr. Mullan with a subpoena requesting the medical records of the complaining parent s son and the sign-in 1 Unless otherwise indicated, all future statutory referenc es shall be to p rovisions in the Maryland Administrative Procedure Act, Md. Code (1984, 1999 Repl. Vol., 2003 Cum. Supp.) §§ 10-101 to 10-305 of the State Government Article. sheet that would show all the other patients seen by Dr. Mullan on April 10, 2000. On June 13, 2000, he respond ed to the complaint by letter through h is attorney. Dr. Mullan s response to the allegations indicated that he did not drink alcoholic beverages and that any perception by the patient s m other of gla zed eyes and an unsteady gait could be explained by the doctor s various physical ailments that emulated, but were not attributable to, intoxication. In the letter, Dr. Mullan s attorney also claimed, mistaken ly, that the requested records and sign-in sheet had been sent to the Board. As a result of the mistake an d other delays, it was not until August 7, 2000 that the Board contacted the parents of all the other patients seen by Dr. Mullan on the day in question. Based on its investigation, on August 23, 2000, the Board summarily suspended Dr. Mullan s medical license under § 10-226(c)(2) of the APA. Pursuant to § 10- 226(c)(2)(ii) and the Board s regulations, the Board also provided the doctor with notice and an opportunity for reconsideration of the summ ary suspensio n. Availing himself of this option, Dr. Mullan appealed the decision, and in September 2000, a three-day hearing was held before an ad ministrative law judge (A LJ). The ALJ made the following findings of fact: Of the ten patients seen by Dr. Mullan on April 10, four corroborated the initial parent s allegations, while another three noticed nothing out of the ordinary. On April 10, Dr. Mullan exhibited symptoms of intoxication which include d slurred speech , incohe rence, trembling hands, staggering, swaying, the mishandling of a cotton culture swab, and abrasiveness and belligerence tow ard the parents -2- of his patients. D eparting fro m his norm al routine that d ay, Dr. Mulla n failed to co mplete the patients cha rts, dictate his diagnoses, and make note of the medications he prescribed. Dr. Mullan, who had been treated for alcoholism since 1979, had admitted to his psychiatrist that he w as cons uming alcoho l in Ma y 1999 a nd M ay 2000 . The ALJ recommended affirmance of the summary suspension. Dr. Mullan filed exceptions to the findings, and on April 11, 2001, the Board issued a Final Decision and Order, adopting the ALJ s findings and recommendation and suspending Dr. Mullan as an emerg ency actio n taken to prote ct the pu blic hea lth and w elfare u nder [§ 10-22 6(c)(2) ]. Dr. Mullan filed a petition for judicial review of the administrative agency s decision in the Circuit Court for B altimore County. The C ircuit Court affirmed the B oard s summary suspension. Dr. Mullan noted a timely appeal to the Court of Special Appeals. In an unreported opinion, that court reversed the Board s finding that summa ry suspension was im peratively required because of a lack of substantial evidence. The c ourt reasoned that the B oard s acquiescence to the delay of four months between the initial filing of the complaint and the decision to susp end, du ring w hich D r. Mullan continued to see patients without complaint from either his patients or the Board, vitiated any evidence that might sup port the Board s determination that summary suspension was imperatively required. The court stated as follows: By allowing [ Dr. Mu llan] to treat patien ts for so long, it seems clear that the [ Boa rd] d id no t perceiv e an e mergency. -3- In considering whether there truly was an imperative that required a summary suspension of [Dr. Mullan s] medical license because of a risk to public health and safety, we ask, rhetorically, why the Board would have allowed [him] to treat patients for three months after learning of his con duct if it perceived an emergency. Therefore, we agree . . . that the evidence did not justify a summ ary suspensio n, and w e shall reverse the Order of Summary Suspension. The Board filed a petition for w rit of certiorari in this Court, 377 Md. 111, 832 A.2d 204 (2003), pre senting the f ollowing single question: If a physician s trea tment of h is pediatric patients while u nder the inf luence of alcohol po ses an imm inent dang er to his patients, does a de lay in the investigation of that danger preclude the Board as a matter of law from summarily suspending that physician? Before this Court, the Board argues that the Court of Special Appea ls erred wh en it took into consideration the lapse of time between the Bo ard s cogn izance of p ossible miscond uct and its de cision to suspend summ arily. In the Board s view, the only statutory requirement for summary suspension is that there be a threat to the public health, safety, or welfare, measured at the time the decision to suspend summarily is made. If at that time the threat persists, the length of the preceding investigation is irrelevan t and should form no part of the consideration of whether the circumstances met the statutory criteria. In the alternative, the Board contends that even if the length of time preceding the decision is taken into consideratio n, the Boa rd has sup plied the sub stantial eviden ce necessa ry to uphold its decision to suspend summarily because whatever delay there might have been was reasonable and, moreover, the result of D r. Mullan s dilatory and uncooperative legal tactics throughout -4- the investigation. Dr. Mullan, the respo ndent, con tends that the issue is solely one of statutory interpretation and sufficiency of evidence. Because § 10-226(c)(2) permits summary suspension only when the agency finds a circumstance that imperatively requires emergency action, the Board was requ ired to show evidence to that effect. It did not do so. The record, says responde nt, was dev oid of any ev idence po inting to a substantial likelihood of serious harm at the time of the s ummary su spension in Augus t. Instead, only the e vents of A pril 10, 2000, were seriously considered by the Board which stipulated that the standard of medical care was not violated that day. The mere inference of a risk of harm from events that occurred four months earlier could not satisfy the statutory burden of proof. The Court of Special Appeals, according to respondent, did not base its decision on the prolonged investigation but rather on the lack of substantial evidence in the record to support a finding that the doctor was a serious threat at the time of the suspension. II. The overarching issue in this case, typical of judicial review o f agency de cisions, is whether there exists substantial evidence to support the agency s factual finding. The parties here disagree as to whether the Board s factual finding with regard to the summary suspension order was sup ported by su bstantial evid ence, w hich is required by the APA for all agency determinations of fact. § 10-222(h )(3)(v); see Board of Physician v. Banks, 354 -5- Md. 59, 68, 729 A.2d 376, 380 -81 (1999). License suspension proceedings befo re an administrative agenc y are contested cases within meaning of the A PA. § 10-202 (d)(1)(ii).2 As a contested case, these proceedings are subject to judicial review under § 10-222. This Court reviews the final decision of the administrative agency and will scrutinize the decision according to established principles of administrative law. See Spencer v. Board of Pharmacy, ___ Md ___, ___ A.2d ___ (2004). Section 10-226(c) governs the revocation or suspensions of licenses under the APA and provides as follows: (1) Except as p rovide d in par agraph (2) of th is subse ction, a unit may not revoke or suspend a license unless the unit first gives the licensee: (i) written notice of the facts that warrant suspension or revocation; and (ii) an opportunity to be heard. (2) A unit may order summarily the suspensio n of a licen se if the unit: (i) finds that the public health, safety, or welfare imperatively requires emergency action; and (ii) promptly gives the licensee: 1. written notice of the suspension, the finding , and the reasons that support the finding; and 2. an opportunity to be heard. The statute opens two paths to the licensing authority when it seeks to suspend or revoke a 2 Section 10-202(d)(1)(ii) provides that a contested case includes a proceeding before an agency to determine the grant, denial, renewal, revocation, suspension, or amendment of a license that is r equired by statu te or constitution to be determined only after an oppor tunity for a n agen cy hearin g. -6- license. The first path, § 10-226(c)(1) , require s that, prior to the effective date of any revocation or suspension, the licensing au thority give the licensee (i) written notice of the facts warranting its decision to suspend and (ii) an op portun ity to be he ard. § 10-226(c)(1); see Maryland Racing Com n v. Castrenze, 335 Md. 284, 296-97, 643 A.2d 412, 418 (1994). The second path toward suspension is an exception to the normal route of § 10226(c)(1), and it is found in § 10-226(c)(2). Section 10-226(c)(2 ), unlike § 10-226(c)(1), does not require notice and an opportunity to be heard prior to the suspension. Instead, it provides that the licensing authority may order summarily the suspension, forgoing the notice and hearing requirements of § 10-226(c)(1), provided it satisfies two criteria: First, the licensing authority must f ind that the p ublic health, sa fety, or welfare imperatively requires emergency action. § 10-226(c)(2)(i). Second, the licensing authority must pro mptly give the licensee written notice of the suspension, the finding, and the reasons that support the finding as w ell as an opportunity to be heard. § 10-226(c)(2)(ii). The Board has published in the C ode of Marylan d Reg ulations (C.O.M .A.R.) standards for summary license s uspen sions. See C.O.M.A.R. 10.32.02.05. Under these regulations, the administrative prosecutor bears the burden to show by a preponderance of the evidence that the health, welfare, and safety of the public imperatively requires the Bo ard to issue an order to suspend the respondent s license. C .O.M.A.R. 10 .32.02.05(F)(2). 3 3 It is not dispute d in this Court by either party that a f inding that e mergenc y action is imperatively required is a factual finding, the burden of which is upon the Board to prove by a preponderance of the evidence. We will assume this is so for purposes of our opinion. -7- Furthermore, the Board has publish ed an interpretive rule in the C.O.M.A.R. defining imperative ly requires to mean that an action must be undertaken pursuant to [§ 10226(c)(2)] as a result of factual contentions which raise a substantial likelihood of risk of serious harm to the public health, safety, or welfare before an evidentiary hearing governed by the Administrative Proced ure Act. C.O.M .A.R. 10.32.02.02(B )(14). In consid ering § 10-22 6(c)(2) , we note at the outset the interpretive difficulty that arises from an apparent contradiction within its text. On the one hand, § 10-226 (c)(2) grants the Board discretion to issue a summary suspension order. The Board may order sum marily the suspension of a license. The word may is generally considered to be permissive, as opposed to man datory, lan guage . See Brodsky v. Brod sky, 319 Md. 92, 98, 570 A.2d 1235, 1237 (1990); 2A N. Singer, Sutherland on Statutes and Statutory Construction § 57.03 (rev. 4th ed. 1984). We have interpre ted the word may to connote a pe rmissive, discretionary function of the agency in the interpretation of the APA . See Spencer, ___ Md. at ___, ___ A.2d at ___ [slip op. at 17-18]. In this context, may indicates that the Board is free to order a summary suspension according to its discretion, p rovided it fu lfills the two re quiremen ts in § 10-226(c)(2)(i) (ii). On the other hand, one of those requirements, § 10-226(c)(2)(i), seems to suggest that the Board must issue a summary suspen sion because sum mary suspension is proper only if it is imperatively required. While the phrase im peratively requires in § 10-226(c)(2)(i) might mislead into an interpretation that takes aw ay the Board s discretion to issue summary suspensions an -8- interpretation that transforms may into m ust such an ambiguou s and contradictory reading is neither nec essary nor reaso nable. The phrase im peratively requ ires is found in § 10-226(c)(2)(i), which is a subsidiary of the general disc retion to summarily suspend found in § 10-226(c)(2). As the first criterion for a proper summary suspension order, the phrase imperatively requires describes the circum stances that will satisfy § 10-226(c)(2)(i) s requirement of an emergency and signals the degree of exigency contemplated for su mmary suspension orders. But it does not circumscribe the more general discretion found in § 10226(c)(2), nor does it require the Board to issue a suspension order when the agency finds § 10-2 26(c)(2 )(i) s exig ency leve l reache d. In other words, while an emergency that imperatively requires summary suspension is necessary for a valid summary suspension order, it does not compel such an order. I n addition to the Board s finding of an emerg ency under § 10-226 (c)(2)(i), a summary suspension order requires that the Board exercise its discretion to issue such an order under § 10-226(c )(2). Theref ore, the phra se impera tively requires o nly describes a c haracteristic of a threshold requiremen t for the ignition of the Boa rd s authority to issue a summary suspension. It does not proscribe the Board s discretion to utilize, or not to utilize, that authority when it is av ailable. The logical, thoug h unusua l, potentiality the statute contemplates, then, is a situation where the Board makes a factual finding that satisfies § 10226(c)(2)(i), a showing of an emergency that imperatively requires emergency action, but subsequently chooses not to exercise its authority to issue the suspension. -9- It may seem a little unusual for an agenc y to choose to refrain from issuing a su mmary suspension even in the face of exigent circumstances that satisfy § 10-226(c)(2)(i), but that is precisely the nature of discretion. With the enforcem ent of § 10 -226(c)(2) c ommitted to the discretion of the agency, the Board retains flexibility to deal with all the facets of a case that the cou rts do no t have. Furthermore, the discretion granted to the Board is not limitless and is subject to judici al review under t he arbitr ary or cap ricious s tandard . See Spencer, ___ Md. at ___, ___ A.2d at ___ [slip op . at 14]. This understanding of the statute reconciles the seemingly contradictory language found in the statute, and it is better than the alternative interpretation, which would first grant discretion to issue the summary suspension but then immediately take it away in the very next clause. Such an illogical reading is to be strongly disfavored, as we avoid constructions that are illogical, unreasonable, or inconsistent with common sense, Price v. State , 378 Md. 378, 388, 835 A.2d 1221, 1227 (2003), and instead interpret and harmonize statutes as a whole, giving meaning and effect to all parts of the statutory language and refraining from interpretations that rend er any pa rt of the law su rplusag e or con tradicto ry. See Dutta v. Sta te Farm, 363 Md. 540, 551, 769 A.2 d 948, 95 4 (2001); Associated Acceptance v. Bailey, 226 Md. 550, 556, 174 A.2d 440, 443-44 (1961) (encountering an apparent contradiction between two parts of a statute and interpreting those parts to harmo nize together). The discretion to issue a summary suspension order if the agency so chooses necessarily includes the discretion to issue the ord er when the agency chooses. Just as the -10- agency may decide not to issue a sum mary suspension order under § 10-226(c)(2), even when it finds exigent circumstances under § 10-226(c)(2)(i), the agency also may delay issuing that order under t he sam e statuto ry provisio ns. The Court of Special Appeals, in effect, punished the Board for exercising this discretion when it vitiated all the Board s evidence supporting summary suspension because the Board issued the order four months after being put on notice o f the po ssible m iscond uct. Giving dispositive weight to th e speed w ith which an agency culminates a complaint into a suspension order unreasonably restricts the ability and discretion of the agenc y to conduct its investigation and issue a summ ary suspension based upon credible, substantiated allegations. See, e.g ., Pietig v . Iowa D ept. of Transp., Motor Veh., 385 N.W.2d 251, 253 (Iowa 1986) (where statute required suspension forthw ith after con viction of d riving wh ile intoxicated, agency s license suspension four months after conviction, while dilatory and not forthwith, was valid, a bsent som e showin g of prejud ice); State v. Ch avis, 200 S.E.2d 390, 392 (S.C. 1973) (noting that when there is nothing other than an unexplained delay on the part of the reporting officials, unaccompanied by any showing of rea l prejudice to the driver, the driver is not en titled to any relief because of delay in imposing the suspension and citing several cases); State v. Pollander, 706 A.2d 135 9, 1363 (Vt. 1997) (noting that statutory objective of speedy license-susp ension process in D UI cases was n ot undermined w here suspension occurred a year after process was initiated and where defendant effectuated the delay by his requests fo r continuan ces); Sneed v. D epartme nt of Public S afety, 343 So.2d -11- 336, 338 (La. Ct. App. 1977) (noting that the forthwith mandate of the statute is directed to the Department for the purpose of protecting the public at large from the habitually intoxicated motorist and not to create by implication a prescriptive period to relieve the convicted driver from the penalties of his own misconduct (quoting State v. Cornelison, 304 So.2d 758, 759 (La. Ct. App. 1974)). Nor does it comport with the discretion e xpressly committed to the agency under § 10 -226(c)(2). When in vestigating potential summ ary suspensions, an agency should not compromise the thoroughness of its investigation because of the th reat of ju dicial rev ersal sho uld the in vestiga tion take too lon g. Consideration of the time period preceding the summary suspension as evidence vitiating the Board s factual finding would also create the perverse additional incentive for licensees to delay and not cooperate with the Board s attempts to substantiate complaints. Unq uestiona bly, a licensee under investigation has the right to avail himself or herself of legal counsel and all the protections afforded him or h er unde r law. N everthe less, a licensee s legal defen se, obviou sly an acceptab le and law ful respon se to the threat of summary suspension, should not be rew arded w ith the unex pected an d unwa rranted w indfall of prec luding summ ary suspe nsion a ltogethe r. Ultimately, consideration of the delay as vitiating evidence illogically shifts the discretion to order summary suspensions away from the agency and into the hands of the licensee under investigation. Clearly, this result could not have been intended by the -12- Legislature. In fact, in the case sub judice, Dr. Mullan s legal tactics,4 were resp onsible for eight of the sixteen weeks between the initial complaint and the issuance of the order. The Board should not be prejudiced for the d elays caused by Dr. M ullan s c onduc t. See, e.g ., John P. v. Axelrod, 468 N.Y.S.2d 951, 952-53 (N.Y. App. Div. 1983) (holding that the agency could lawfully find an imminent danger to the public and summarily suspend a physician s license, even after a six-year delay, particularly as the delays in going forward were la rgely attrib utable to physician s legal a ctions), aff d 462 N.E.2d 1 192 (N.Y. 198 4). Our holding today does not require courts to ignore completely the length of the investigatory period when it reviews the summary suspension orders of administrative agencies. Instead, the timing of the administrative ag ency s issuance of the order could be a relevant factor in determining whether the agency acted arbitrarily or c apriciously w hen it ordered the summary suspension in the first place. Because the issuan ce of a summ ary suspension order is com mitted to the a gency s discre tion by law, it is subject to judicial review under the arbitrary or capricious standard of § 10 -222(h )(3)(vi). See Spencer, ___ Md. at ___, ___ A.2d at ___ [slip op. at 14]. The arbitrary or capricious standard, as we have stated before, sets a high bar fo r judicial intervention, meaning the agency action must be extreme and egregious to warrant judicial reversal under that standa rd. MTA v. King, 369 4 Dr. Mullan, for example, acting pursuant to legal advice from his attorney, refused to hand over immediately the records sought by the Board on May 17, notwithstanding the fact that the Board had a valid subpoena, and instead demanded that the Board furnish addition al legal a uthority to reques t the reco rds. -13- Md. 2 74, 291 , 799 A .2d 124 6, 1255 -56 (20 02). Therefore, a delay in the issuance of the summary suspension order is a relevant factor in dete rmin ing w heth er the age ncy properly exercised its statu tory discretion, jud icially reviewed under the extremely deferential arbitrary or capricious standard. T he investigatory period, for all the reasons outlined above, should not be weighed as evidence in the imperative ly requires calculus, where it would be reviewed by the courts as a factual finding under the less deferential substantial evidence standard. The length of the investigatory period leading up to summary suspension does not play a role in the consideration of w hether there is substantial evidence to support the agency s factual finding that the situation imperatively requires emergency action. Instead, the length of the investigatory period should be considered when a court reviews the sum mary suspen sion ord er unde r the arb itrary or cap ricious s tandard of judic ial review . III. We turn now to our review of whether the Board s factual find ing that the summary suspension was imperatively required was supported by substantial evidence. The substantial evidence test, set forth in § 10-222(h)(3)(v) of the APA, requires that an agency s factual determination be supported by compe tent, material, an d substantia l evidence in light of the entire record as su bmitted. W e have fu rther elabora ted on the concept of substantial evidence, explaining: -14- In applying the substantial evidence test, a reviewing co urt decides whether a reasoning mind reasonably could have reached the fac tual con clusion the age ncy reach ed. 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[, and] the agency s decision is prima facie correct and pre sumed valid. Banks, 354 Md. at 68, 729 A.2d at 380-381 (quotation marks and citations omitted). We apply this standard in the case sub judice. Respondent argues that the record is devoid of any evidence that Dr. Mullan s practice of medicine posed a threat rising to the level of emergency contemplated by §10-226(c)(2)(i). We di sagree . The record establishes that Dr. Mullan has struggled with alcoholism since 1979 and had relapsed at le ast twice as re cently as May 1999 and M ay 2000. Furthermore, the A LJ s finding that Dr. Mu llan was trea ting his patien ts while intox icated on A pril 10, 2000 is not disputed in this Court. Indeed, the record is replete with evidence that Dr. Mullan treated minor patients while he was intoxicated: For example, Dr. Mullan departed from his normal practice of completing the patients charts and o f dictating his diagnose s. He also f ailed to make note of the medications he prescribed that day. Additionally, five different lay witnesses, who had no co nnection e xcept that the y were the pa rents of long-time patients of the doc tor wh o were seen by h im on A pril 10, c orrobo rated his intoxica ted state that day. When a pediatrician, with a history of severe alcoholis m, renders medical ca re to children while visibly into xicated, he e xhibits a rem arkable lack of sound judgmen t by his -15- failure to decide not to see patients on that day, even if he could not refrain from using alcohol. Such a lack of sound judgment is sufficient evidence for a reasonable B oard to conclude the incident might repeat itself, requiring the immediate suspe nsion of the doctor s license and posing a danger that imperatively requires emergency action. As this Court has stated, the heart of fact-finding is draw ing infe rences from f acts. Stansbury v. Jones, 372 Md. 172, 183, 812 A.2d 312, 318 (2002). That is what the Board did here, and it was not unreasonable. This Court may not agree with the Board s finding, but that is not enough reason to overturn it, for the test is reasonableness, not rightnes s, and we cannot su bstitute our jud gmen t for the agenc y s in factu al determ inations . Id., at 183, 812 A.2d at 318. As we have made clear, the four-month time lapse between the filing of the complaint and the Board s order is irrelevant to our review for substantial evidence but rather comes into play when we co nsider whether the B oard acted in an arbitrary or capricious manner. A four-month dela y does not require a finding that the Board was arbitrary or capricious, considering the nature of the investigation. The fact that fully half of the delay can be attributed not to the actions of the Board but to the tactics of Dr. Mullan by not supplying the Board with legitimately relevant investigatory information confirms that the Board did not act arbitrarily or capriciously when it issued the order on August 23, 2000. In sum, we hold that the length of the investigatory period preceding the issuance of a summary suspension order is not relevant evidence in determining whether an ag ency s factual finding tha t the public h ealth, safety, or w elfare impe ratively requires emergency -16- action under § 10-226(c)(2)(i) is supported by substantial evidence. Instead, the length of the investigatory period is a relevant factor in determining whether the agency acted arbitrarily or capriciously when it chose to issue the summary suspension order at that specific time. In the case sub judice, the timing of the Board s issuance of the order was not arbitrary or capricious, and the B oard s factual finding tha t the circums tances imp eratively required the summary suspension was supported by enough evidence to survive substantial evidence review. JUDGMENT OF THE COURT OF SPECI AL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PAUL A. MULLAN, RESPONDENT. -17- -18-

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