Finucan v. Board of Physicians

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Thomas E. Finucan, Jr. v. Maryland Board of Physician Quality Assurance, No. 71, September Term, 2003. ADMINISTRATIVE LAW PHYSICIAN DISCIPLINARY MATTER IMMORAL OR UNPROFESSIONAL CONDUCT IN THE PRACTICE OF MEDICINE. A male physician exploited h is knowledge of three of his female patients and their families for his own p ersonal gra tification wh en he use d his medical practice as a springboard, then as a cover, fo r his sexual adventures with the women, all to the detriment of his patients. He met two patien ts only through his medica l practice and began intim ate relationsh ips with them during his medical consultations. He took advantage of his knowledge, attained through his treatment of the husband of one patient, that the husband would be out of town and that the patient might be susceptible to his advances. In addition, the physician recommended reverse tubal ligation surgery for two female patients and fertility testing for a third patient in order to gratify his desire that h is sexual pa rtners/patients c onceive h is children. The physician was not only treating or recommending treatment for marital problems, depression, fertility problems, and a suicide attempt for his sexual partners/patients; he also was treating some of their spouses and family members at the same time. In each episode, the physician had a vested personal interest in his patients choice of treatment. Moreover, his recommendations for medical care in some instances appeared to be based sole ly on his own in terests. His creation of these irreconcilable conflicts of interest compromised his professional relationships with these patients and their families. The physician s episodic creation of these du al relationship s thus was connecte d with his medical practice and immoral or unprofessional conduct in the practice of medicine. The Maryland Board of Physician Quality Assurance reasonably found that this conduct violated Maryland Code (1981 , 2000 R epl. Vo l., 2003 S upp.), § 14-404(a)(3) of the Health Occupations Article, and revoked his license to practice medicine. Circuit Co urt for Cecil C ounty Case # 07-C-01-000023 IN THE COURT OF APPEALS OF MARYLAND No. 71 September Term, 2003 THOMAS E. FINUCAN, JR. v. MARYLAND BOARD OF PHYSICIAN QUALITY ASSURANCE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: April 5, 2004 On 21 October 1998, Respondent, the Board of Physician Quality Assurance1 ( the Board ), received a written complaint from a fe male patient o f Tho mas E . Finuca n, Jr., M .D., Petitioner, alleging that F inucan en gaged in a sexual relatio nship with her while c oncurren tly acting as her physician. The subsequent investigation by the Board disclosed that, between 1993 and 1998, Finuca n engage d in a series o f sexual rela tionships w ith several fe male patients while maintaining, at the same time, a physician-patient relationship with them. The Board charged Finucan with immoral or unprofessional conduct in the practice of medicine. Following an administrative evidentiary hearing, an Administrative Law Judge (ALJ) of the Maryland Office of Administrative Hearings (OAH) concluded that Finucan had engaged in sexual rela tionships w ith three of h is female patients during the time they were his patients. The ALJ recommended revocation of Finuc an s license to practice me dicine in Maryland. On 21 December 2000, the Board adopted the ALJ s findings and imposed license revocation as the appropriate sanction for the misconduct revealed by the facts. Finucan sought judicial review of the Board s final order. After hearing oral argumen t, the Circuit Court for Talbot County affirmed the Board s decision. On direct appeal by Finucan, th e Court of Special Appeals affirmed. We granted Finucan s petition for a w rit of cer tiorari, Finucan v. Board of Physicians, 377 Md. 275, 833 A.2d 31 (2003), to consider the sole question posed in his petition: Does a physician commit immoral or unprofessional conduct in the practice of medicine [] by engaging in consensual sexual activity with a patient concurrent 1 The Board since has been renamed the State Board of Ph ysicians. 2003 Md. Laws, Chap. 252. with the existence of a physician-patient relationship, in the absence of evidence that such ac tivity occurred while the physician was actually engaged in the treatme nt and care of the patien t? I. Petitioner was a ph ysician who , from 198 5 until 2001 , practiced as a family practitioner in Cecil County, Maryland. He maintained a private practice from a medical office in North East, was on the staff at Union Hospital in Elkton, and also worked at Perry Point Veterans M edical Center. This case comm enced on 21 Octo ber 1998 when th e Board r eceived a w ritten complaint from a female patient ( Patient A ) alleging that Finucan engaged in a sexual relationship with her w hile a cting as he r phys ician. The subsequent investigation of the complaint by the Board su ggested tha t, from 199 3 through 1998, Fin ucan eng aged in a series of sexual relationships with several then current patients. A. Administrative Proceedings The Board charged Finucan on 30 September 1999 with immoral or unprofessional conduct in the practice of medicine under the Maryland Medical Practice Act ( the Act ), Md. Code (1981, 1994 Repl. Vol.), § 14-404(a)(3) of the Health Occupations Article.2 A 2 Maryland Code (1981, 2000 Repl. Vol., 2003 Supp.), § 14-404(a)(3) of the Health Occupations Article, at all relevant times and in pertinent part, read as follows: (a) Subject to the hearing provisions of § 14-405 of this subtitle, the Board, on the affirmative vote of a majority of its full authorized membership, may reprimand any licensee, place any licensee on probation, or (contin ued...) 2 seven-day eviden tiary h earing was conducted before an ALJ. After hearing from fifteen witnesses and considering seventy exhibits, the ALJ issued a Revised Proposed Decision3 concluding that Finucan violated the Act by engaging in sexual relationships with three female patients Patients A, B, and D while concurrently maintaining physician-patient relationships. The ALJ also concluded, however, that the Board had not proved similar charges involv ing Patient C. Finucan filed written Exceptions with the Board. After an exceptions hearing, the Board issued its Final Decision and Order on 24 January 2001, adopting the Revised Proposed Decisio n of the A LJ and re voking F inucan s lice nse to practice medicine. Facts Found as to Patient A The Board fo und that F inucan be gan an intim ate sexual re lationship w ith Patient A during 1995 a t a time w hen he also w as treatin g her fo r a seizu re disord er, high blood pressure, and emotional problems. Patient A initially consulted F inucan as h er physician in 1993 for emotional difficulties following a separation from her second husband. Finucan 2 (...continued) suspend or revoke a license if the licensee: (3) Is guilty of immoral or unprofessional conduct in the practice of medicine 3 The AL J earlier issued a Proposed Decision suggesting that he applied a preponderance of the evid ence stand ard of pro of to the evaluation of the Board s evidence. The Board remanded the matter to the ALJ requesting clarification of this point. The ALJ issued a Revised Proposed Decision clarifying that he actually employed the clear and convincing standard of proof required in a licen se revo cation m atter. See Md. Code (1981, 2000 Repl. Vol., 2003 Supp), § 14-405(b) of the Health Occupations Article. 3 began calling Patient A at home in September 1995, while she was a still a pa tient, to give her medical test results. He continued to call her at home, ultimately asking for and receiving directions to her house. He the n began visiting her in the evenings and the two began a consen sual sex ual relatio nship b efore th e end o f 1995 . During the intimate re lationship, Fin ucan requ ested that P atient A have her tubal ligation reversed so that she could bear his child. In addition, he assisted Patient A in having her driving privilege reinstated, writing a supporting letter, dated 15 Decem ber 1995, toward that end. Pa tient A v iewed Finuca n as he r cham pion in this eff ort. In June 1996, during the course of Patient A s treatment by Finucan for high blood pressure, Patient A became dissatisfied with her treatment and caused her patient file to be transferred to another doctor for his review. The intimate relationship ceased for a couple of months beginning in June 1996, when the parties had a falling out, but resumed again. In June 1997, Patient A went with a hurt shoulder for an office visit with Finucan. Sub sequ ently, he brought drug sa mples to Patient A s home to treat her shoulder. Sometime during 1997 or 1998 , Finucan also broug ht antibiotics to Patient A s home to treat her sinus infection. Finucan and Patient A continued their parallel professional and sexual relationships until September 199 7. In September, he saw her as a patient for the last time, treating her for multiple bee stings. In approximately the Spring of 1998 the intimate relationship between Finucan and Patient A ended. As a result of psychological difficulties 4 arising out of Patient A s intimate relationship with Finucan, she began seeing a therapist in July 1998. Facts Found as to Patient B In the Spring of 1996, Patient B visited Finucan at his medical office, complaining of a hip injury. They flirted at that time and mad e arrangeme nts to mee t at a p ark a few days later. Approximately five weeks after first treating Patient B for her hip injury, Finucan began having a sexual relationship with her. Some of the sexual encounters occurred at an apartment that Finucan maintained adjacent to his medical practice. Patient B was married at the time, and her husband was also a patient of Finucan. Patient B convinced her husband that they should transfer their te en-age da ughter s ca re to Finuca n as well. During the intimate relation ship, Finuc an reques ted Patient B to bear a child by him. Patient B responde d that she pr eviously und erwent a tu bal ligation an d was un able to conceive. Nevertheless, Patient B visited another doctor to inquire about a tubal ligation reversal, but did not follow through with the process. Finucan and Patien t B continu ed their parallel professional and sexual relationships until February 1997, when they had sexual relations for the last time. Patient B continued, however, as his patient, being treated for anxiety in March 1997. Finucan ended the intimate relationship with Patient B against her will. Patient B had a difficult tim e dealing w ith the break -up and re acted by pursu ing Finucan, following him around, appearing at his home and office uninvited and unwelcome. 5 After ending her intimate relationship with Finucan, Patient B received psychotherapy to deal with sequelae issues of distrust, shame, self-blame, and an ger. Facts Found as to Patient D Finucan was the p rimary care physician for Patient D, her husband, and their three daughters. Finucan, married at the time him self, was ab le to initiate a sex ual relationsh ip with Patient D by using knowledge gained from his physician-patient relationship with her husband. Patient D s husband visited Finucan for a physical examination as part of a government job application process. Finucan learned from him that he would be away from home at trainin g for se veral m onths, re turning only on w eeken ds. In ea rly 1993, w hile Patient D s husband was away, Finucan began his sexual relationship with Patient D. On one occasion, Patient D s husband returned home and found Finucan sleeping in the marital bed. Patient D s marriage cru mbled as a direct result of F inucan s sexual relationship w ith her. In the Fall of 1993, Patient D began working for Finucan in his med ical office as a Registered Nurse . Durin g the inti mate re lationsh ip, Finucan asked Patient D to have his baby. In 1994, Patient D moved in with Finucan. She und erwent fe rtility testing at his request. Finucan became engaged to Patient D while co ntinuing to provide m edical care to her a nd h er fa mily. In early June 1995, Patient D took an overdose of a prescription medication in an apparent suicide attempt and was admitted to the Intensive Care Unit at Union Hospital. At that time, she listed Finucan as her family physician. Finucan was the admitting and 6 attending physician and had significant involvement in her care for the overdose. She was discharged from the hospital to Finucan s continuing care. Appro ximately one year later, Patient D and Finucan ended their sexual relationship. Expert Testimony Herbert L. Mun cie, Jr., M.D ., Chair of the Department of Family Medicine at the University of Maryland School of Medicin e and an expert in ph ysician-patient boundary issues and the ethical practice of medicine, testified as the Board s witness before the ALJ. Dr. Muncie testified that boundaries are important in the physician-patient re lationship, in part because o f the pow erful role that the physician plays in that relationship. He observed that a patient may develop warm feelings for the physician and consequently be unable to perceive clearly the prop er role to w hich the p hysician m ust adhere eth ically and med ically. The physician, theref ore, must tak e care not to exploit the advantage he or she naturally may gain over his or her patients. The ALJ also received in evidence, at the Board s behest, the Board s Spring 1993 newsletter article entitled Sexual M isconduc t in the Prac tice of Med icine (the Board s newsletter is dissemina ted quarterly to all physicians licensed in the State of Maryland) and a Journal of the American Medical Association article also entitled Sexual Misconduct in the Practice of Medicine, 19 JAMA 2741 (1991), both of which state that sexual contact that occurs concurren tly with the physician-patient relationship constitutes sexual misconduct on the physician s p art. 7 ALJ s Findings and Conclusions The ALJ, in September 2000, found in his written findings of fact and conclusions of law that the evidence was overwhelming that Finucan pursued multiple sexual relationships with his female patients over a period of several years. In particular, the ALJ found that [Finucan] exploited patients to who m he owed a fiduciary duty of trust and ethical re sponsi bility. [Finucan] pursued patients, mindful of the imbalance of power and status, with the benefit of personal knowledge about the patients and their lives. [Finucan] undermined the trust patients must be able to place in their physicians. A physician is obligated to act only for a patient s benefit, without any thought of self-gratification. *** The complicated and tangled series of involvements, some occurring simu ltane ousl y, with seve ral wom en of itself is not unethical or immoral in the practice of medicine. However, when the evidence shows that three of those women were patients at the time [Finucan] was intimately involved with them, and that he undermined the trust of the physician-patient relationship, then that physician has violated the ethical obligations of his profession. I find [Finucan] violated § 14-404(c)(3) and the standard of care by having sexual relations with Patients A, B, and D during the same period of time he was acting a s their ph ysician. The ALJ co ncluded th at Finucan s conduct constituted unprofessional conduct in the practice of medicine and recommended that his license to practice medicine be revoked for at least three years. Finucan filed exceptions with the Board. The Board s Findings and Conclusions After a hearing on 21 December 2000, the Board issued its final order adopting the ALJ s findings of fact and analysis, and added the following: 8 Dr. Finucan has engaged in reprehensible unp rofessiona l conduct in the practice of medicine by engaging in a pattern of unethical sexual relationships with his adult w omen patients over a p eriod o f sever al years. He repeatedly exploited patients to whom he owed a fiduciary duty of trust and ethical respon sibility. This exploitation was dev astating to bo th those patie nts and their families. Dr. Finucan has undermined the trust which patients must be able to place in their physicians. For the protection of public health and safety, and in order to protect the integrity of the medical profession, Dr. Finucan must be barred from practicing medicine in the State of Maryland. The Board agrees with the ALJ that Dr. Finucan s aberrant behavior is deeply ingrained. The Board believes that a significant amount of time must pass before behavior this deeply ingrained can be successfully and permane ntly modified. The Board concludes that nothing short of revocation of Dr. Finucan s medical license, and a three-year bar to the submission and consideration of any reinstatement application, will protect the integrity of the profession, as well as the health, safety, and welfare of the citizens of the State of Maryland. The Bo ard also inten ds this sanctio n to serve as a deterrent to such eg regiou s cond uct on th e part of any othe r license e. B. Circuit Court Review On 31 January 2001, Finucan, pursuant to the Administrative Proce dure Ac t, Maryland Code (1984, 1999 Repl. Vol., 2003 Supp.), § 10-222 of the State Government Article, filed in the Circuit Court for Cecil County a petition for judicial review of the Board s order. The case was transferred to the Circuit Court for Talbot County. After hearing arguments from Finucan and the Board, the Circuit Court found that [Finucan] engaged in a series of in appropriate sexual relationships with at least three of his female p atients while he was acting in his capacity as their treating physician. The Co urt further fin ds that these in appropria te sexual relationships, while actin g in his capa city as the patient s p hysician, falls within the meaning of the term practicing medicine under the Statute [in the] Health Occu pations Article, Sections 14-40 1 et sec. (Supp. 1999). 9 The Circuit Co urt conclud ed that subs tantial evidence existed in the record to support the action of the Board and affirmed its decision. C. In the C ourt of Sp ecial App eals In the Court of Special Appeals , Finucan a rgued that a physician w ho engag es in sexual relations with current patients is not committing immoral or unprofessional conduct in the practice of medicine. He also maintained that there was a lack of substantial evidence to support the Board s finding that he had engaged in immoral or unprofessional conduct in the practice of medicine. In addition, Finucan argued that the Board had violated the Accardi doctrine and he was otherwise deprived of due process. The Court of Special A ppeals aff irmed the C ircuit Court s judgm ent. Finucan v. Maryland State Bd. of Physician Quality Assurance, 151 Md. App. 399, 827 A.2d 176 (2003). The interm ediate appe llate court con cluded th ere was su bstantial evidence to support the Board s first-level findings that Finucan had sexual relationships with Patien ts A, B, and D while they were his patients. The court reasoned that the facts illustrated that a physician s en gaging in a sexual relatio nship with a patient whether or not it occu rs in the immedia te act of diag nosis or treatmen t, or inside or o utside of a m edical setting, o r while the physician is technically on duty has a deleterious effect on the p atient s w elfare. Based on the imbalance of power between Finucan and his patients, and his knowledge of his patients medical histories, family situations, and current physical and emotional states, the intermediate appellate court held as correct the Board s conclusion that Finucan s 10 unprofessional conduct with regard to Patients A, B, and D occurred in the practice of medicine. Finally, the court noted that Finucan s allegations regarding the Accardi doctrine and due process, even as amorphous as presented there, had not been raised before the ALJ or Board and, thus, w ere deemed w aived for judicial review p urposes. In any event, based on its review of the voluminous appellate record, no due process violations or prejudicial procedural errors were revealed. II. As a preliminary matter, we note that Finucan, in his petition for writ of certiorari filed with this Court, presented only the following question: Does a physician commit immoral or unprofessional conduct in the practice of medicine [] by engagin g in consensu al sexual ac tivity with a patient concurrent with the existence of a physician-patient relationship, in the absence of evidence that such ac tivity occurred while the physician was actually engaged in the treatme nt and care of the patien t? As noted earlier, we granted the petition to con sider this que stion. In his brie f in this Cou rt, howev er, he also pre sented a ser ies of additio nal question s, arguing tha t the administrative bias and various tactics violated the safegu ards inhere nt in the Accardia [sic] Doc trine . . . Due P rocess V iolations: Appellant s due process rights were violated as w ell as his cons titutional rights. His sixth amendment rights were violated by not allowing him to be confronted by Patient D. There was a violation of Appellant s first amendment rights. Appellant was d eprived of his g uarante es of lif e, liberty, and the pursuit of happiness. For a number of reasons, we shall not consider formally Finucan s Accardi argument or his additional due process questions. First, he failed to raise them before the ALJ or the 11 Board. We ha ve held, co nsistently, 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 f or judic ial review . Bd. of Physician Quality Assurance v. Levitsky, 353 Md. 188, 208, 725 A.2d 1027, 1036 (1999) (citations omitted). Finucan waived, under Rule 8-131(a), his right to have his additional questions considered on judicial review. Furthermore, he waived any constitutional and procedural issues for rev iew in this Court by failing to raise them properly in his petition for writ of certiorari. This Cou rt ordinarily will not consider issues not raised in a petition for writ of certiorari and, therefore, we will not consider Finucan s Accardi doctrine argument or due process arguments because they are not p roperly be fore us . See, e.g., Calvert Joint Venture # 140 v. Snider, 373 Md. 18, 31 n. 8, 816 A.2d 854, 861 n.8 (2003 ) (finding tha t only two of p etitioner s que stions dealt with issues comprised in the questions to which the Court granted certiorari and, therefore, two other questions n ot raised in the writ of certiorari were not properly before the Cou rt); Huger v. State, 285 Md. 347 , 354, 402 A.2d 8 80, 885 (1979) (holdin g that the qu estion in petitioner s brief was not properly before the Court, because that same question was not included within the w rit of certiorari granted by the Court). A. Standard of Review It is well settled that the State Judiciary s role in reviewing an administrative agency s adjudicatory decisio n is limite d, United Parcel Service, Inc. v. People s Counsel, 336 Md. 569, 576, 65 0 A.2d 226, 230 (1994); it is limited to determining if there is substantial 12 evidence in the record as a whole to support the agency s findings and conclusion s, and to determine if the administrative decision is premised upon an erroneous conclusion of law . United Parcel, 336 M d. at 577 , 650 A .2d at 23 0. See also Md. C ode (198 4, 1995 R epl. Vol.), § 10-222(h) of the State Gov t Article . Even with re gard to some le gal issue s, a degree of deference should often be accorded the position of the administrative agency. Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999). We, therefore, o rdinarily give co nsiderable weight to the administrative agency s interpretation and applica tion of th e statute that the a gency ad ministe rs. Lussier v. Md. Ra cing Comm n, 343 Md. 68 1, 696-97 , 684 A.2d 804, 811 -12 (1996 ), and cases th ere cited; McCullough v. Wittner, 314 Md. 602, 612, 552 A.2d 881, 886 (1989) ( The interpretation of a statute by those officials charged with administering the statute is . . . entitled to weight. ). Furthermore, the expertise of the agency in its own field of endeavor is entitled to judicial respect. Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455, 654 A.2d 449, 456 (1995); Christ v. Dep t of Natural Res., 335 Md. 427, 445, 644 A.2d 34, 42 (1994) (legislative delegations of authority to administrative agencies will often include the authority to make significant discretionary policy determin ations ); Bd. of Ed. For Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986) ( application of the State Board of Education s expertise w ould clearly be desirable before a court attempts to resolve the legal issues). 13 B. Finucan initially contends that the prohibitio n of imm oral or unp rofessiona l conduct contained in Maryland Cod e (1981, 2000 Repl. Vol., 2003 Supp.), § 14-404(a)(3) of the Health Occup ations Artic le is, on its face, unconstitutionally vague. This is so, he claims, because the statute does not prohibit explicitly a physician from engaging in sexual relations with patients, nor fairly warn the physician that such conduct falls within its proscription. Before considerin g this vagu eness argu ment, we note, as the C ourt of Special App eals similarly concluded, that there is no dispute in Maryland that physicians having sexual relationships with persons who are concurren tly their patients is immoral or unprofessional conduct. T wenty years ago , in McDonnell v. Commission on Medical Discipline, 301 Md. 426, 436 n.5, 483 A.2d 76, 80 n.5 (1984), we opined that the classic illustration of immoral conduct of a physician in his practice as a physician is the comm ission of a sex act on a patient, while the patient is under the doctor s care. At the hearing before the ALJ, even Finucan acknowledged that it would have been inappropriate and unprofessional conduct in the practice of medicine to have had sexual relations with an individual while sh e was still my patien t. The void for vagueness contention finds conceptual no urishmen t in the Fourte enth Amendm ent s guaran tee of p rocedu ral due p rocess. Williams v. State, 329 Md. 1, 8, 616 A.2d 1275, 1278 (1992). Generally, courts employ two criteria in their analysis of whether a statute is void for vagueness. Bower s v. State, 283 Md. 115, 120-21, 389 A.2d 341, 345 14 (1978). First, a court determines whether the statute adheres to the f air notic e princip le. Bowers, 283 Md. at 121, 389 A.2d at 345. In discussing the fair notice principle, we have held that [d]ue process commands that persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern th eir behavior accordingly. Id. Thus, a statu te will survive a challenge that it is unconstitutio nally vague if it uses plain language that is understandable to a person of ordinary intelligen ce. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926); Williams, 329 M d. at 8, 616 A .2d at 1278 ; Unnamed Physician v. Comm n on Medical Discipline, 285 Md. 1, 15, 40 0 A.2d 396, 40 3 (1979). The next touch stone in the a nalysis counse ls that a statute may be stricken for vagueness if it does not provide legally fixed standards and adequate guidelines for police, judicial officers, triers o f fact, and o thers who se obligation it is to enforce, apply and administer the penal laws. Bowers, 283 Md. at 121, 389 A.2d at 345. The purpose behind this second factor is to avoid resolving matters in an arbitrary or discri minato ry mann er. Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2299, 33 L. Ed. 2d 222 (1972)). A statute, ho wever, is not void for vagueness merely because it allows for the exercise of some discretion. Bowers, 283 Md. at 122, 389 A.2d at 346. A statute is unconstituti onal only when it is so broad as to be susceptible to irrational and selective patterns of enforcement . . . . Id. 15 In Unnamed Physician v. Commission on Medical Discipline, we addressed whether former Maryland Code (1957, 1978 Cum. Supp.), Art. 43 § 130, which at that time governed disciplinary actions against physicians, was vo id for vagueness.4 Former section 130(h) identified eighteen separate grounds for which a physician could be disciplined for unprofessional conduct, one of which was pro fessional inc ompeten cy. We held that the statute was not v oid for vagueness because it (1) sufficiently informed physicians that if they engaged in any of the activities forbidden by § 130(h) they would be subject to discipline and the possible loss of their license, and (2) because it was written in plain language which could be und erstood by perso ns of o rdinary in telligenc e. Unnamed Physician v. Com m n on Medical Discipline, 285 Md. 1, 14-15, 400 A.2d 3 96, 403 (1979 ). See also Blake r v. State Bd. of Chiropractic Exam rs, 123 Md. App. 243, 255, 717 A.2d 964, 971 (1998) (professional disciplinary statute not void for vagueness merely because it allows for the exercise of some d iscretion by health disciplinary board). Terms such as unprof essional co nduct ge nerally are suff iciently definite to withstand constitutional scrutiny if they are susceptible to common understanding by members of the [regulated] profession. Chastek v. Anderson, 416 N.E .2d 247, 25 1 (Ill. 1981). The meaning of terms such as imm oral condu ct and d ishonorab le conduc t is determined by the common judgment of the profession as found by the professional 4 In 1981, Article 43 was recodified, in part, in the Health Occupations Article of the Maryland Code. Section 130(h) is now § 14-404 of that article. 16 licensing board. Kansas State Bd. of Healing Arts v. Acker, 612 P.2d 610, 615 (Kan. 1980) (professional disciplinary statutes that specify a physician s license can be revoked for unpro fession al, dishonorable, or immoral conduct in the practice of medicine have been sustained b y the cou rts in alm ost eve ry instanc e ) (citat ion om itted). Cf. Haley v. Medical Disciplinary Bd., 818 P.2d 1062, 1074 (Wash. 1991) (the statutory term moral turpitude is sufficiently clear to give ade quate notic e to members of the medical profession that consensual physician-patient sex is p rohibited). A statute prohibiting unprofessional conduct or immoral conduct, therefore, is not per se unconstitutionally vague; the term refers to conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession. Shea v. Bd. of Medical Exam rs, 146 Cal. Rptr. 653, 660 (Cal. Ct. App. 1978 ). See also Pietsch v. Minnesota Bd. of Chiropractic Exam rs, 662 N.W.2d 917, 923-24 (Minn. App. 2003) ( unprofessional conduct is, of itself, a sufficiently definite ground upon which a boa rd m ay revoke a license even in the absence of regulations defining what constitutes unprofessional conduct ); Lugo v. New York Sta te Dep t of H ealth, 762 N.Y.S.2d 660, 662 (N.Y. App. Div. 2003) (a physician s consensual sexual relationship with a patient demonstrates a mo ral unfitness to practice the profession ). The record in this case contains evidence that the prohibition against a physician engaging in sex with a current patient is commonly understood within the medical profession. At the administrative hearing, the Board s medical expert, Dr. Muncie, was asked how long 17 ago the prohibition o n patient-ph ysician sex w as established . He testified th at it is mentioned basically in the Hippocratic Oath that you should not basically take advantage of your patients, certainly not have sexual contact with your patients. It goes back thousands of years. The ancient or classical Hippocratic Oath, although not a basis for the discipline meted out in this case, is an expression of ideal conduct for physicians.5 See Andrews v. 5 The classical Hippocratic Oath varies somewhat according to the particular translation. One clas sical version of the Hippocratic Oath states, In every house where I come, I w ill enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction, and especially from the pleasures of love with w omen and m en. See Hippocrates, Physician s Oath in S TEADMAN S M EDICAL D ICTIONARY, 579 (22d ed. 1972). Anothe r classical versio n of the H ippocratic O ath states, [I] w ill come for the benef it of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons . . . . Mau ra L. C ampb ell, The Oath: An Investigation of the Injunction Prohibiting Physician-Patient Sexual Relations, 32 P ERSP. IN B IOLOGY & M ED. 300 (1989) (settin g forth entire text of one version of the Hippo cratic Oath). See also 23 T HE N EW E NCYCLOPE DIA B RITANNICA 889 (15th ed. 1990) (containing different translation of the Hippoc ratic Oath). The modern Hippocratic Oath evolved from the classical version and is an ethical guide for the medical profession. It bears the name of the Greek physician Hippo crates (4 60(?)- 377(? ) B.C.). See Roe v. Wade, 410 U.S. 113, 13032, 93 S. Ct. 705, 715-16, 35 L. Ed. 2d. 147 (1973) (noting that scholars debate the importance and acceptance of the original Hippocratic Oath by Greek physicians and argue about whether the Hippocratic Oath is an absolute standard of medical conduct). The vast majo rity, however, of modern versions of the Hippocratic Oath taken at medical schools do not forbid expres sly sexua l contac t with p atients. See, e.g ., David Graham, Revisiting Hippocrates: Does an Oath Really Matter?, 284 JAMA 2841 (2000) (citing text of traditional and modern versions of the Hippocratic Oath); Orr R.D., Pang N., Pe llegrino E.D., Siegler M., Use of the Hippoc ratic Oath : A Review of Twen tieth Century Practice and a Content Analysis of Oaths Administered in Medical Schools in the U.S. and Canada in 1993, 8(4) J. of Clinical Ethics 374-85 (Winter 1997) (finding in a survey of 157 U.S. and Canadian Medical Schools that only 3 percent of all the modern Hippocratic Oaths in use retain a proscription against sex ual contact w ith patients). It is not clear from the record of this case what, if any, version of the Hippocratic Oath Finucan may have sworn at medical sc hool. This, however, has no bearing on the proper analysis of the present case. 18 United States, 732 F.2d 366, 368 n. 2 (4th Cir. 1 984) ( the [ classical] Hip pocratic O ath is indicative of the medical profession s historic knowledge of and concern about the potential for sexual abuse of the p hysician- patient r elations hip ). M ore rece ntly, the American Medical Association s Council on Ethical and Judicial Affairs concluded that sexual contact or a romantic relationship concurrent with the physic ian-pati ent relatio nship is unethic al. Counc il on Ethical and Judicia l Affa irs, Am erican M edical A ssociatio n, Sexual Misconduct in the Practice of Medicine, 19 JAMA 2741 (1991). Similarly, the U.S. District Court for the District of Maryland has opined that [i]n the medical profession, it is understood that having sex with patients constitutes immoral and unprofessional conduct. Briggs v. Cochran, 17 F. Supp. 2d 453, 460 n. 18 (D. Md . 1988). Ev en Finuca n, in his petition fo r writ of certiorari here, ad mitted th at his co nduct w as imm oral or u nprof essiona l. He conceded that as he admitted below, Petitioner exercised poor judgmen t in his decision to enter into consensual sexual relationships with w omen wh o were then his patients. Petitioner concedes that such conduct would by most definitions qualify as immoral or unpro fession al . . . . The statutory prohibition against immo ral or unprofessional con duct was suff icient to warn Finucan and other p hysicians license d to practice in Maryland th at having se x with patie nts is prohibited. Finucan next argue s that his hav ing sex w ith his fema le patients was not accomplished in the practice of medicine as that term is u sed in M aryland C ode (19 81, 200 0 Rep l. Vol., 2003 Supp.), § 14-404(a)(3) of the Health Occupations Article. This argu ment also is 19 without merit. A parallel sexual relationship between a physician and a patient compromises the physician-patie nt relationship , violates the eth ics of the m edical prof ession, and reflects on the fitness of the physician to pra ctice medic ine. Finuca n used his p rofessiona l skills and his knowledge of his three female patients personal and familial situations to play upon their emotional vulnerabilities, even if they facially consented to the sexual relationships. The facts support a finding that he abused his professional status and knowledge by losing objectivity and recommending treatment for them for his own gratification, rather than for what objectively w as best for th e patients. Fo r these reaso ns, a physician w ho enters in to such a d ual relatio nship c omm its unpro fession al cond uct in th e practic e of m edicine . In McDonnell v. Commission on Medical Discipline, 301 Md. 426, 483 A.2d 76 (1984), we first considered what in the practice of medicine meant in the context of § 14404(a)(3). We were asked to determine whether a physician who attempted to intimidate witnesses scheduled to testify against him in a medical malpractice action could be disciplined for [i]mmoral conduct of a physician in his practice as a physician, under Md. Code Ann. (1957, 1980 R epl. Vol.), Art. 43, § 130(h)(8), the pred ecessor to § 14-404 (a)(3). McD onnell, 301 Md. at 428, 483 A.2d at 76. We reso lved that D r. McD onnell s co nduct, although improper and not to be condoned, did not occur in his practice as a physicia n. 301 Md. at 434, 483 A.2d at 80. We reasoned that the meaning of the phrase practice as a physician was limited to matters pertaining essentially to the diagnosis, care or treatment of patients. 301 Md. at 436, 483 A.2d at 80. We agreed with Dr. McDonnell s concession, 20 however, that the classic illustration of immoral conduct of a physician in his practice as a physician is the c ommissio n of a sex act on a pa tient, while the patient is under the doctor s care. 301 Md. at 436 n. 5, 483 A.2d at 80 n. 5. In Board of Physician Quality Assurance v. Banks, 354 Md. 59, 72-73, 729 A.2d 376, 383 (1999), w e most rece ntly examined the phrase in the practic e of medicine in § 14404(a)(3). In Banks, we rejected the argumen t that McD onnell should be read as precluding a physician from being sanctioned under the statute for committing acts of sexual harassment against colleag ues in th e work place. Id. Dr. Ban k s condu ct included his unwelcome sexual comments and inappropriate touching, squeezing, and pinching of the anatomy of various female employees w ho wo rked at a hospita l. 354 M d. at 62- 64, 729 A.2d a t 378. We rejected Dr. Banks s argument that a physician may only be sanctioned under § 14-404(a)(3) if he or she is in the immediate process of diagnosing, evaluating, examining or treating a patient and enga ged in a no n-clerical task. 354 M d. at 73, 729 A.2d at 3 83. Such an approach so narrow ly construes § 1 4-404(a)(3 ) that it would lead to unre asonable re sults and render the s tatute inadequate to deal with many situations which may arise. Id. Rather, Dr. Bank s conduct was a threat to patients and was, thus, in the practice of medicine. We stated that The Board o f Physician Q uality Assurance is particu larly well-qualifie d to decide, in a hospital s etting, whether specified misconduct by a hospital physician is sufficiently intertw ined with patient care to constitute misconduct in the practice of medicine. In light of the deference which a review ing court should give to the Board s interpretation and application of the statute which the Board ad ministers, w e believe tha t the Board s decision in this case was 21 warranted. When a hospital physician, while on duty, in the working areas of the hospital, sexually harasses other hosp ital employees w ho are attem pting to perform their jobs, the Board can justifiably conclud e that the ph ysician is guilty of immoral or unprofessional conduct in the practice of medicine. 354 Md. at 76-77, 729 A.2d at 385. McD onnell and Banks are persuasive authorities in the present case. Although not a holding in McD onnell, we agree d with the p rinciple that a physician acts in the practice of medicine by committing a sex act on a patient under the doc tor s care. McDonne ll, 301 Md. at 436 n. 5, 483 A.2d at 80 n. 5. Moreover, Banks indicates that if the physician s misconduct relates to the effective delivery of patient care, the misconduct occurs in the practice of me dicine. Banks, 354 Md. at 74, 729 A.2d at 384. In the Court o f Special A ppeals in the present cas e, Judge B arbera, writin g for the panel, made four particularly cogent points refuting Finucan s narrow interpretation of in the practice of medicine by which he sought to limit the scope of § 14-404(a)(3) to sexual conduct that occurred while he was on duty in medical environs: First, Dr. Finucan s sexual relationships with these patients grew directly out of, were conducted over the same period of, and were entangled with their respective physician-patient relationships. For example, Dr. Finucan brought Patient A s medications to her home. And, during Patient D s hospitalization, which was while Patient D and her ch ildren resided in his home, Dr. Finucan served as her attending physician. Second, Dr. Fin ucan e xploited , to his ow n ends , the trust that his patients placed in him as their physician. In the cases of Patients A and D, he took advantag e not only of wha t he learned from them about their personal lives, but of what he knew to be their emotional vulnerability. Dr. Finucan knew, for example, of Patient A s pending separation from her husband and of her emotional instability. And, in pursuing his personal relationship with 22 Patient D, he cap italized on his knowle dge that Patient D s hu sband w as in training on the Eastern Shore. Third, Dr. Finucan risked losing (if he did not lose altogether) the objectivity that any physician m ust have w hen caring for patients. He was derelict in maintaining a professional relationship focused exclusively on the health and w elfare o f his pa tients. He subordinated his patients needs to the gratification of his personal desires. Indeed, he went so far as to suggest that each woman undergo a procedure (in the case of Patients A and B, a surgical procedure) to facilitate their bearing his children. Finally , Dr. Finucan damaged his patients em otionally. Both P atients A and B sought therapy after their relationships with Dr. Finucan concluded. And, although we do not know the reason for Patient D s apparent suicide attempt (because s he did not te stify), we do kn ow that the attempt occurred while she and Dr. Finucan were cohabiting. Dr. Finucan s conduct runs afoul of the maxim primum non nocere or fir st, do no harm. Finucan, 151 Md. A pp. at 416-17, 827 A .2d at 186-87 (footno te omitted). As we noted in Banks, courts elsewhere have not applied an extremely technical and narrow definition of the practice of medicine. Banks, 354 Md. at 74, 729 A.2d at 384. We continue to favor tha t approach . Finucan s sexual activ ities with his female patients go to the heart of his duties as their family doctor. Dr. Muncie, the Board s e xpert witne ss in this case, explained the reasons for the ethical ba r that prohibits p hysicians from engaging their current patients in contemporaneous sexual relationships.6 First, the sexual relationships may grow out of and become entan gled w ith the ph ysician-p atient rela tionship . Secon d, a physician places himself or herself in the position of being able to exploit his or her intimate 6 We, like the Board in this ca se, express no opinion whether a physician violates § 14-404(a)(3) if he or she renders emergency or isolated/minor medical care to his or her spouse or significa nt other (w ith whom sexual relatio ns presum edly may have o ccurred in such a relation ship). The hold ing in the present c ase, as courts often inca nt, is limited to its particular facts. 23 knowledge of his or her patients and their families in order to advance the physician s sexual interests. Third, a physician is placed in a position where he or she may lose objectivity and place his or her own needs for gratification above the patient s wishes or best interests. Fina lly, there is a real danger that these relationships may damage the patient in a number of ways. The facts of this case amply illustrate the reasons underlying the ethical prohibition against physicia n-patient sex . Finucan e xploited his knowledge of these patients and their families for his own personal gratification, using his medical practice as a springboard, then as a cover, for his sexu al adventu res, to the detrim ent of his patients. He met Patient A and B only through his medical practice and began the personal relationships during his medical consultations with them. He co nvinced Patient B to b ring her daughter und er his medical care in order to facilitate his personal relation ship w ith Patie nt B. He took advantag e of his knowledge, attained throu gh his treatment of Husband D, when Husband D would be out of town and that Patient D might be susceptible to his advances. While co habiting w ith Patient D, Finucan tre ated her in th e aftermath of her suicide attempt. In addition, he took advantage of Patient A confiding in him about her depression over her marital problems and, during their dual relationships, reinforced his position as her caregiver by bringing medicine to her when he arrived for his night-time sexual visits. Most significantly, he recommende d surgery for Patients A and B an d fertility testing for P atient D in o rder to gratify his d esire that his patients conce ive his c hildren . Finucan not only was treating or recommending treatment for 24 marital problems, depression, fertility matters, and a failed suicide regarding one or another of his sexual partners/patie nts; he also w as treating som e of their spo uses and f amily members at the same time. In each episode, Finucan had, or reasonably could be perceived to have, a vested personal interest in his choice of treatment fo r his patients. H is recommendations for medical care in some insta nces app ear to have been bas ed solely on his own interests. His c reation of th ese irreconc ilable conflic ts of interest comp romised h is professional relationships with these patients and their families. Finucan s creation of these dual relationships thus was connected with his medical practice and was in the practice of medic ine. 7 Finucan argues further that having sex with his current patients is not connected with the practice of medicine because it did not reflect adversely on his technical skills as a physician. It appears from our research that this argument universally has been rejected by courts confro nted by it. See Larsen v. Comm n on Medical Competency, 585 N.W.2d 801, 805 (N.D. 19 98) (physician s consens ual sexual re lationship that occurred at physician s home and other locations with current patient met statutory requirement of being related to 7 Both the Court of Special Appeals s opinion and the Board s Brief b efore this Court analogize the appropriateness of the sanction meted out to Finucan to the sanction imposed in the attorney discipline case of Attorney Grievance Commission v. Goldsborough, 330 Md. 342, 624 A.2d 503 (1993). The Goldsborough case involved an attorney who, over a period of time while he was in his office, kissed one former client, spanked another client, and repeatedly spanked his secretary. We do not consider this attorney grievance case about the sexual harassment of individuals in an office setting analogous to Finucan s consensual sexual relationships with current patients. 25 the licensee s pr actice of m edicine ); Pons v. Ohio State Medical Bd., 614 N.E.2d 748, 75152 (Ohio 1993) (physician s consensual sexual relationship with current patient suffering from depression, a nxie ty, and marital discord violated the profession s Code of Ethics and fell below the medical stan dard of ca re); Gromis v. Medical Bd. of California , 10 Cal. Rptr. 2d 452, 458 (Cal. Ct. App. 1992) ( We recognize that conduct may be substantially related to a physician s fitness though the conduct does not relate to the skills needed for the practice of medicine. ) (citation om itted); Haley v. Medical Disciplinary Bd., 818 P.2d 1062, 1069 (Wash. 1991) (physician s consensual sex with current patient may indicate unfitness to practice a professio n or occu pation with out being d irectly related to the specific skills needed for that practice). Whatever Finucan s technical skills were or may be, unethical conduct does not need to raise doubts about the individual s grasp of particular technical skills. Unethical conduct may indicate unfitness to practice medicine if it raises reasonable concerns that an individual abused, or may abuse, the status of being a ph ysician in such a way as to harm patients or dim inish the stand ing of the m edical prof ession in the eyes of a reasonab le member of the gen eral public. W e are satisfied that the Board s concern s with Finucan s sexual liaisons with his various p atients are reas onable concerns about him using his position as a physician to prey on his emotionally vulnerab le female patients, and his pred atory behavior diminishes the standing of the medical profession as caregivers. Fina lly, Finucan cites various medical malpractice tort cases from around the coun try for the proposition that physicians may be sanctioned only if the sexual act is imposed on a 26 patient as a pre text for treatme nt. Darna by v. Dav is, 57 P.3d 100 , 105 (Ok la. Ct. App. 2002); Iwanski v. Gomes, 611 N.W.2d 607, 614 (Neb. 2000); Atienza v. Taub, 194 Cal. App. 3d 388, 393 (Cal. Ct. A pp. 1987 ). Althoug h this proposition gained currency in medical malpractice cases in certain jurisdictions, the courts in those jurisdictions stated that the proposition is not applicable to a professional responsibility case concerning the applicab le ethical standards for a physicia n. Th e Ca lifor nia c ourts spe cific ally de cline d to a pply Atienza v. Taub to a physician disciplinary case: [w]e consider the language from Atienza regarding [the physician disciplinary statute] to be mere dictum and we decline to apply it to a disciplinary procee ding. Grom is,10 Ca l. Rptr. 2 d at 458 . See also Green v. Bd. of Dental Exam rs, 55 Cal. Rptr. 2d 14 0, 150 (C al. Ct. App. 1996) (distinguishing Atienza as a malpractice case not applicable to disciplinary proceedings). Finucan s reliance on Iwanski likewise is misplaced because the Supreme Court of Nebraska cautioned that the issue before us is not whether he conducted himself in accordance with ethical standards applicable to the medical profes sion. Iwanski, 611 N.W.2d at 614-15. Similar ly, Darnaby v. Davis begins by noting that the Oklahoma courts are not addressing the professional ethics of sexual contact between a medical professional and a patient, which is universally condemned. Darnaby, 57 P.3d at 102. Finucan also relies on Hirst v. St. Paul Fire and Marine Insurance Co., 683 P.2d 440, 444 (Idaho Ct. App. 1984), for the related proposition that physicians may be sanctioned administrativ ely only if the sexual act is imposed on a patient as a pretext for treatment. The 27 Hirst case, however, add ressed th e issu e of w heth er an inten tional sexual assa ult by a physician constituted professional services under the provisions of a malpractice insurance contract. Id. That is of no relevance to this case. Similarly, Finucan s reliance on Smith v. St. Paul Fire and Marine Insurance Co., 353 N.W .2d 130, 13 2 (Minn . 1984) ( the issue is whether [the physician s] conduct is covered by the professional liability policy issued by insurer ), is misplaced because th e Minn esota court stated that its limited role on appeal [was] to determine the insurance contract s meaning. Nor does Yero v. Department of Professional Regulation, Board of Medical Examiners, 481 So.2d 61, 63 (Fla. Dist. Ct. App. 1985), support his arguments. The Yero court agree d with the a dministrative hearing officer s findings that the evidence failed to establish that Dr. Yero either used the physician-patient relationship to engage in sexual activity or exercised influence within a physician-patient relationship for purposes of engaging a patient in sexual activity. Yero, 481 So.2d at 63. Con trary to Yero, the evidence in the present case establishes, as found by the Board, that Finucan used the p hysician-patient relationship for purposes of facilitating the engagement of current patients in sexual activities. JUDGMENT AFFIR M ED. COSTS TO BE PAID BY PETITIONER. 28

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