Salerian v. Board of Physicians

Annotate this Case

Download PDF

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No.624 September Term, 2006 ______________________________________ Alen J. Salerian v. Maryland State Board of Physicians ______________________________________ _ Murp hy, C.J., Krauser, Barbera, JJ. Opinion by Krauser, J. Filed: September 26, 2007 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 624 September Term, 2006 ______________________________________ Alen J. Salerian v. Maryland State Board of Physicians _______________________________________ Murp hy, C.J., Krauser, Barbera, JJ. Opinion by Krauser, J. Filed: Appellan t, Alen S alerian, M .D., a psychiatrist licensed in Maryland, was engaged by the defense in a federal esp ionage ca se to perfo rm a foren sic psychiatric ev aluation of Evalu ee, the defendant in that case.1 During the course of his engagement, appellant disclosed information that he had learned from Evaluee to Evaluee s wife and then, after he had been discharged by both Evaluee and his counsel, revealed this and other information about Evaluee to local, national, and international media outlets. Atto rneys for Evalu ee and his w ife thereafte r filed a com plaint agains t appellant w ith the Maryland State Bo ard of Physicians ( Boa rd ), appellee. After an investigation, the Board brought charges against appellant. A hearing followed, at the conclusion of which the Administrative Law Judge ( ALJ ) issued a proposed decision finding appellant guilty of immoral or unprofessional conduct in the practice of medicine, in violation of Maryland Code (1981, 2005 Repl. Vol., 2006 Supp.) § 14-404(a)(3) of the Health Occup ations Article ( H.O. ). She recomm ended that appellant s license b e revoked, that he be p rohibited for a maximum of three years from applying for reinstatement, and that he be fined $20,000. Adopting the ALJ s findings, the Board concluded that appellant had violated H.O. § 14-404(a )(3), but declin ed to find that he lack[ed] the good moral character necessary for the Board to approve reinstatement of his license. It therefore imposed a lesser sanction. It ordered, among other things, that appellant be placed on probation for a minimum of two 1 The defendant is identified only as Evaluee by the Administrative Law Judge and the Marylan d State B oard of Physician s. years and fined $5,000, but indicated that its decision would not be a bar to reinstatement of his lic ense on moral c haracte r groun ds . . . . After the Circuit Court for M ontgomery Coun ty affirmed the Board s decision, appellant n oted an ap peal, claimin g: I. The Board did not recognize and apply the correct principles of law in find ing it had jurisdiction to adjudicate and impose sanctions upon Dr. Salerian based on the complaint filed by the Attorney G eneral. II. The Board failed to recognize and apply the correct principles of law in finding that the term unprofessional conduct as alleged in the charging document is not valie [sic] for vagueness. III. The Bo ard did no t apply the law correctly in finding that a forensic evaluation is the practice of medicine and, further, the facts were not substantial to determine that Dr. Salerian was conducting a forensic evaluation. IV. The Board did not recognize and apply the correct principles of law in finding that the conduct alleged to be unethical occurred in the practice of medicine. V. The Board d id not have substantial eviden ce to find that Dr. Salerian s conduct was immoral and unprofessional in the practice of medicine and the Board failed to apply the correct principles of law in finding that Dr. Salerian was in violation of the immoral a nd unpro fessional co nduct provision of the Maryland Practice [A ct]. VI. The Board failed to recognize and apply the correct principles of law regarding the fairness and due process to be accorded Dr. Salerian in the conduct of the hearing including the acceptance of testimony not given under oath, testimony not given under a p roper oath, te stimony not su bject to full and complete cross-examination, refusal to allow depositions of -2- [Evaluee] to be taken, refusal to allow the substitution of a witness on the is sue o f con fide ntial ity, and not advising counsel that a decision to admit the testimony of [Evaluee] had been allowed. VII. The Board failed to recognize and apply the correct principles of law in finding that Dr. Salerian was an agent of Plato C acheris . [Eval uee s f ormer a ttorney.] VIII. The Board failed to recognize and apply the correct principles of law in determining that the moral imperative exception to confide ntiality was not justifiable in this matter. IX. The Board failed to recognize and correctly apply the law of waiver concerning [Evaluee s] assertion of breach of confidence. X. The Board did not correctly apply the principles of law when admittin g the inv estigato ry file in ev idence . For the reason s set for th below , we af firm the judgm ent of th e circuit c ourt. BACKGROUND In February 2001, appellant wrote to attorney Plato Cacheris, who was then counsel for Evaluee, a former FBI employee charged with espionage. Appellant was ev entually engaged by Cacheris, b ut, accordin g to Cacheris, only for the limited purpose of performing a forensic psychiatric evaluation of Evaluee. He was to determine if Evaluee was competent to stand trial and whether a psychiatric defense was available. Cacheris warned appellant that -3- he was only authorized to disclose to the media that he had been engaged by the defense and nothin g furth er. Because of the national se curity interests that w ere involve d in Evaluee s case, in March 2001, the U nited States A ttorney Gene ral imposed Special Administrative Measures (SAM) of confinement on Evaluee to prevent disclosure of classified information. The SAM restricted Evaluee s access to the media, mail, visitors, the telephone, and even limited his ability to co mmu nicate w ith his atto rney. It further provided that only the inmate s attor ney, and no t . . . the attorney s staff would b e permitted to dissemin ate the conte nts of the inmate s commu nications to third parties a nd then, f or the sole purpose of preparing the inmate s defense and not for any othe r reason . . . . Appellant signed a Physician s Affirmation stating that he had received and read the SAM cond itions, and furthermore, that he w as the p hysician r etained by defen se coun sel . . . . Appellant visited Eva luee in prison seven da ys in late April and early May, for a total of ten hours and fifty minutes. According to appellant s notes, Evaluee disclosed to appellant what the Board described a s his long h istory of sexua l betrayal and ex ploitation of his wife,2 which Evaluee had not, up til then, revealed to his wife. On May 4, 2001, appellant wrote a letter to Cac heris sug gesting that E valu ee w ould benefit f rom pharmacoth erap y.3 2 For example, unbeknownst to his wife, during the course of their marriage, Evaluee allowed his best friend to watch him and his w ife engag e in sexual in tercourse thr ough their bedroo m win dow a nd thro ugh a h idden c amera system he had set up for that pur pose. 3 Pharmacotherapy is the [t]reatment of disease through the use of drugs. The Ame rican H eritage S tedma n s M edical D ictionar y, 630 (20 01). -4- One day later, appellant visited Evaluee and wrote him a prescription for Paxil, a medication for d epre ssion and anxiety. On M ay 11, 2001, a ppellant disc losed to C acheris what Ev aluee had told him about his sexual ex ploitation of his wife. C acheris instru cted appe llant not to reveal this information to anyone, including Evaluee s wife. Yet, one day later, appellant disclosed Evaluee s sexual activities to Evalue e s wife. H e did so, app ellant explain ed in a letter to Cacheris , to engender enhanced understanding and reconcilment [sic] between [Evaluee] and his wife . . . . Four days later, on M ay 16, 2001, C acheris w rote appellan t a letter stating that Cacheris and the defense team had permitted [appellant] to state publicly that [he] ha[d] been engaged by [the defense] but reminding him that he ha[d] also stated that [appellan t] [was] not to disclos e any confid ences. [E ]verything, he instructed ap pellant, falls w ithin the attorney/client privilege and is not to be disclosed. He then suggest[ed] that appellant have no fur ther con tact w ith Eva luee an d his fa mily. The next day, May 17, 2001, Cacheris met with appellant and gave him a letter terminating his services. The letter further instructed appellant that all privileges and confidences remain intact and are inviolate, and not . . . to discuss this matter with any other persons. T hat same d ay, Evaluee h imself wrote a letter to appellan t, asserting that he no longer wish[ed] appellant to provide [him] with psychiatric services and specifically instructing appellant not to discuss this case or conversations you have had with m e with -5- anyo ne other than my attorneys. He concluded the letter by stating, I am specifically forbidding you from discussing my case with a ny membe rs of my fam ily and certainly with anyone o utside th e famil y. The next day, appellant wrote a letter to Cacheris summariz[ing] [his] medical/psychiatric recommendations for [Evaluee], including his opinion that Evaluee responded very well to Paxil . . . . Three days later, on May 21, 2001, appellant sent a letter to Cacheris, in which he stated that he saw [himself] as a member of the [defense] team as soon as [he] began work ing with Cach eris. He explained his disclosu re of Evaluee s sexual activities to Evaluee s w ife by stating that h e felt Evalu ee could better participa te in his defen se if he was n ot sha ckled b y [the] gu ilt of w hat he h ad don e to his w ife. A week later, on May 30, 2001, appellant sent Cacheris the psychiatric evaluation of Evaluee that he had been engaged by Cacheris to perform. The evaluation concluded that Evaluee had been suffering from several psychiatric disorders and that there was strong eviden ce for a possib le insan ity defens e. On June 12, 2001, Cacheris wrote to appellant, informing him that a producer for Sixty Minutes told Cacheris that appellant had discussions with him concerning confidential matters involving [Evaluee]. Cacheris again warned appellant that appellant was not permitted to disclose to anybody communications [he] may have had with [Evaluee] and members of his family and that any such disclosures will be violative of the attorney/client privilege an d [appella nt s] own canons of medical ethics prohibiting -6- disclosu res, and, furthermore, he reminded appellant that appellant signed the United States govern ment s Spec ial Adm inistrativ e Mea sures, w hich p rohibit p ublic dis closure s. Evaluee also sent a letter to appellant, dated June 21, 2001, confirming again that he had not authorized appellant to sp eak to a nyone ab out [E valuee ] or [Ev aluee s ] case. Nonetheless, on numerous occasions appellant discussed Evaluee s psychologica l state with the media, which resulted in the publication of E valuee s co nfidential state ments to ap pellant. Board Investigation On September 13, 2001, the Board received a complaint about appellant from the attor neys for Evaluee and his wife, alleging that appellant was retained by [Evaluee s] legal defense team to perform a forensic evaluation on [Evaluee] and that appellant had disclosed confidential and privileged information without proper authorization. On November 21, 2001, the Board re viewed th e case at its w eekly review panel, which is a panel that reviews complaints in light of the preliminary investigation to decide if further investigation is necessary. COMAR 10.32.02.03.A(2). After reviewing the complaint about appellant, the panel directed further investigation. On September 30, 2001, appellant s lice nse to practic e medicin e in Maryland expired. A year later, on September 11, 2002, appellant submitted an application for reinstatement of his medical license to the Maryland State Board of Physician Quality Assurance, now the Maryland State Board of P hysicians ( Board ). 4 Ultimately, the B oard sent ap pellant a 4 The Maryland State Board of Ph ysicians was previously know n as the Maryland State Board of Physician Quality Assurance. The name change occurred in the middle of -7- notice informing him of its intent to deny his application for reinstatement of medical license under the Maryland Medical Practice Act, H.O. § 14-401 et seq. It further notified appellant that the Board was charging him with immoral or unprofessional conduct in the practice of medicine, in violation of H.O. § 14-404 (a)(3). The Board stated that appellant s conduct violated the ethics of forensic psychiatry because, among other things, he purpo rtedly entered in to a treatmen t relationship with th e Evalu ee, violated attorney-client an d physician-p atient confidentiality in the forensic setting, and attempted to exploit, manipulate and coerce the Evaluee and the Evaluee s wife . . . . The notice further no tified appella nt that a hearing in this matter had been scheduled at the Office of Administrative He arings ( OAH ), as well as a case resolution conference and a prehearing confe rence. In July 2003, appellant sent a letter to the Board asking it to withdraw his license application. The Board responded by informing appellant that an applicant cannot withdraw an application while charges are pending. ALJ Hearing The issues before the ALJ were, as she put it, whether appellant engaged in immoral or unprofessional conduct in the practice of medicine, in violat ion of [ H.O.] § 14-40 4(a)(3) , and whether appellant s [a]pplication for [r]einstatement may be denied for such violations the proceedings in this case. -8- under [H.O.] § 14-205, and for not being of good moral character conduct in violation of [H.O .] § 14-3 07. By the time the hearing was conducted, Evaluee had been convicted of espionage and was serving a life sentence in a federal prison in Colorado. Because of the restrictions imposed by his detention, he had to te stify by telep hone. At that time, he testified that he had agreed to let appellant disclose his sexual activities to his wife because appellant had told him that that in formation was alread y in the hands of the media an d would be reveale d in the news media and tha t . . . he thought it would be better that she not hear it from the news media but that [ appella nt] wer e there a nd relate d it . . . . Since he was not allowed to have any contact with the news media, he believed appellant s representation that the media was ready to p ublish th is inform ation. At the hearing s, the Board and appe llant presented expert witnesses: Jeffrey S. Janofsky, M.D., testified for the Board and James R. Merikangas, M.D., testified for appellant. Both exp erts, the AL J found, agreed tha t psychiatrists are bo und by the ethical standards set out in: the American Academy of Psychiatry and the Law s E thical Valu es in the Practice of Forensic Psychiatry ( AAPL ), American Psychiatric Association s Principles of Medic al Ethics, and the American Medical Association s Principles of Medical Ethics. Dr. Janofsky testified that forensic psychiatry is a subspecialty of psychiatry. But, in forensic psychiatry, he noted, the forensic evaluator is retained by the defense attorney and so he must follow that attorney s instructions. The forensic evaluator, he explained, get[s] -9- access to the defendant through the defense attorney [and is] instructed to answer the question by him and . . . send the information back to that defense attorney, and he s the one who . . . d ecides w hether th at infor mation will go forwa rd. He asserted that, when perfo rming a forensic psychiatric evalua tion, in contrast to standard psychiatric treatm ent, the foren sic evaluato r is not to treat the evaluee for psychiatric problems. His duty is only to make an objective diagnosis for the defense team within a legal context. Cons equen tly, according to Janofsky, appellant s prescribing of medication for Evaluee was absolutely . . . inappropriate, his disclosures to the media were a gross breach of profes sionalism, and his revelation of E valuee s sexual activities to Evalue e s wife w as a tru ly grotesq ue viola tion of f orensic practice . In reply, appellant called to the stand James R. Merikangas, M.D. Dr. M erikangas, a psychiatrist, testified that appellant s activities did not occur in the practice of medicine because forensic psychiatry is not the practice of medicine. He explained that the purpose of the practice of medicine is to trea t a patient, and that is not the p urpose of forensic psych iatry. He further stated that appellant was not engaged as a forensic evaluator because he did not conduct and produce a report of the depth and type that is generally produced by forensic evaluators, nor was appellant treating Evaluee. Rather, according to Merikangas, appellant was conducting a crisis management or an investigation as to what might be done and the refore d id not h ave a confid ential rela tionship with E valuee . -10- Appellant testified that he had never promised to be a forensic p sychiatrist to Plato Cacheris or anybody an d that he w as to serve a s the crisis expert or th e crisis doctor for the defense, pointing out that he had previously performed such work for Cacheris. Appellant opined tha t he had an ethical duty to disc lose the information Evaluee had conveyed to him to inform the public that the FBI had failed E valuee by not taking Eva luee s psychological behavioria l incidents seriously; and that the Cath olic institution, O pus Dei, of which Evalue e was a mem ber, had failed Evalue e by not persuading Ev aluee to turn himself in after Evaluee confessed to a priest that he had committed espionage. Evaluee s wife testified that appellant regular[ly] told her that he thought that someone, himself, should speak to the media to gain compassion and understanding and get [Evaluee] a lighter sentence. Because of appellant s persistent requests for a name of a reporter he could talk to, she eventually gave him the name of someone she knew occ asionally wrote for The Washington Times, to make [appellant] happy, but she knew that [the writer] wouldn t give [appellant] the time of day and she had been assured by Cacheris that appellant couldn t talk to the media . . . . She said sh e wasn t speaking to anybody about Evaluee s case. She didn t permit [her] attorney to and [she] didn t want any of [her friends] to speak about it, and that everyone who knew [her] kn[e]w[] that [she] did not want a nybody sp eaking on [he r] beha lf or his b ehalf a t all. The ALJ issued her proposed decision on April 2, 2004. Opining that appellant was not a credible w itness, she fo und that appellant w as engag ed to cond uct a foren sic -11- psychiatric evaluation of Evaluee and therefore had violated H.O. §§ 14-307 and 404(a)(3) by revealing c onfidentia l information he had obtained from Evaluee in the course of conducting that evaluation. She found that appellant disclosed Evaluee s confidential information to the national and international press and media on multiple occasions, including CBS E vening N ews, the A ssociated P ress, the BB C, The W ashington Post, USA Tod ay, and Six ty Minu tes. She proposed (1) that appellant s license to practice medicine in Maryland be revoked; (2) that his application for reinstatement be denied; (3) that he not be permitted to apply for reinstatement for a period not to exceed three years, and then only upon demon stration o f his reha bilita ted m oral char acte r; an d (4) that h e pa y a monetary penalty not to exceed $20,000. Appellant filed exceptions to the proposed decision. Board s Decision On January 4, 2005, the Board issued its final opinion and order, adopting the AL J s findings of fact an d credibility find ings and in corporating by reference the A LJ s proposed decision into its final opinion and order. It further ordered that appellant s request to withdraw his application for reinstatement be denied, that he be reprimanded, that he be fined $5,000, and that he be placed on probation for a minimum of two years, with no e arly termination of probation. The probation period was not to expire until appellant successf ully complete d an ethics c ourse at his expense. The B oard stated that appellant s unprofessional conduct will not act as a bar to reinstatement of his license on moral -12- character grounds and that he would not be precluded from seeking reinstatement to the practice of medicine in Maryland. That decision was thereafter af firmed by the circuit court. STANDARD OF REVIEW In reviewing a decision o f an adm inistrative agen cy, our role is prec isely the same as that of the circuit court. Grand Bel Manor Condominium v. Gancayco, 167 Md. App. 471, 478 (2006) (quoting Dep't of Health & Mental Hygiene v. Shrieves, 100 Md. App. 283, 303-04 (1994)). That is, [w]e review only the decision of the administrative agency itself. Gancayo, 167 Md. App. at 478 (citing Aha lt v. Montg omery C ounty, 113 Md. App. 14, 20 (1996)). We are limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions . . . . Gancayo, 167 Md. App. at 479 (citations omitted). [S]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Caucus Distributors, Inc. v. Maryland Sec. Comm r, 320 Md. 313, 324 (1990) (citation omitted). We also determine if the administrative decision is premised upon an erroneous conclusion of law. Gancayo, 167 Md. App. a t 479 (c itation o mitted). Howe ver, the ex pertise of the agency in its own field should be respected. Id. (citation omitted) . The refo re, an ad ministrative a gency's interpretation and application of the statute which the agen cy administers should ord inarily be given considerable weight by reviewing courts. Id. (citation omitted). -13- DISCUSSION I. Appellant first contends that the Board erred in finding that it had jurisdiction to adjudicate and im pose sanctions . . . . He argues that because his license to practice medicine in Maryland expired on September 30, 2001, seven weeks before the Board opened its investigation on November 21, 2001, (the day that the Board s Weekly Review Panel met), he was not licensed in Maryland at the time the investigation was beg un and therefore the Board lac ked jurisdictio n to sanction him in this matter. On the other hand, had the investigation begun b efore his lice nse expired , his license would not have lapsed, as he maintains, on September 30, 2001, because H.O. § 14-403(a) provides that a license, certification, or registration [may not] lapse by operation of law while the individual is under investigation or while charges are pending. Although the Board s investigative summary says that appellant s case was reviewed at the Wee kly Review Panel on November 21, 2001 and open[ed] for investig ation, a preliminary investigation of appellant was actually begun on September 13, 2001,5 when the Board received the complaint. In fact, it is not the Panel s task to begin an investigation but, acc ording to CO MA R 10.3 2.02.03 .A(2), to review a complaint in light 5 The Board s In vestigative Summ ary states that the complaint was received on September 21, 2001, but the ALJ found that it was received on September 13, 2001. The difference in dates is of no consequence here because, no matter on which d ate the Board received the complaint, the investigation of appellant still began before his license expired on September 30, 2001. -14- of the p relim inary inve stiga tion and to de cide if f urther investigati on is necess ary. COMAR 10.32.02.03.A(2). Since the investigation of appellant began on September 13, 2001, when the Board received the complaint about him, seventeen days before his license was due to expire on September 30, 2001, his license did not lapse on that date and the Board had jur isdiction to sanc tion him in this m atter. II. Appellant next argues that the Board erred in finding that the term unprofessional condu ct, as used in H.O. 14-404(a )(3), and as a lleged in the c harging d ocumen t, is not void for vagueness. The Court of Appeals in Finucan v. Maryland Board of Physician Quality Assurance, 380 M d. 577 (20 03), addres sed this very issue . In that case, Finucan, a physician, engaged in a series of inappropriate sexual relationships with at least three of his female patients while he w as acting in his capacity as their treating physician. Id., 380 Md. at 587. The Board found that Finucan s behavior was unprofessional conduct in the practice of medicine under H.O. § 14-404(a)(3), and it recommended that his license be revo ked. Id. at 586-87. The circuit court agreed, and this matter wound its way up to the Court of Appe als. Id. at 588. Before the Court of Appeals, Finucan claimed that the prohibition of immoral or unprofessional condu ct conta ined in M aryland C ode (19 81, 200 0 Rep l. Vol., 2003 Supp .), § 14-404(a )(3) of the H ealth Occ upations A rticle [was], o n its face, un constitutionally vague , because the statute does not prohibit explicitly a physician from engaging in sexual -15- relations with patients, nor fairly warn the physician that such conduct falls w ithin its proscrip tion. Id. at 591. The Court of Appeals responded with the observation that [t]erms such as unprofessional conduct generally are sufficiently definite to withstand constitutional scrutiny if they are susceptible to common understanding by members of the [regulated] profession. Id. at 593 (citation omitted). Furthermore, [t]he meaning of terms such as immoral conduct, it opined, is determined by the common judgment of the profession as found by the professional licensing board. Id. (citation omitted). A statute prohibiting unprofessional conduct or immo ral conduc t, therefore, is no t per se unco nstitutionally vague , it explained, because 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. Id. (citation omitted). Then, pointing out that the record contain[ed] evidence that the prohibition against a physician engaging in sex with a current pa tient is comm only understood within the medical profession, id. at 594, the Court of Appeals concluded that the circuit court d id not err in finding that Finucan breached H.O. § 14-404(a)(3) by engaging in such a relation ship w ith his pa tients. Id. at 596. As in Finucan, the conduct at issue here the prohibition against the disclosure of confidential communications is commonly understood withi n the m edical p rofessi on. See id. at 594. The Principles of Medical Ethics of the American Medical Association ( AMA Guide lines ), which the Board d escribes as th e ethical co des of m edicine in -16- general ; The American Psychiatric Society s Annotations of the AMA Principles of Medical Ethics Especially Applicable to Psychiatry ( Psychiatry Annotations ), which, according to the Board, is the ethical code of psychiatry as a specialty branch of medicine ; and The American Academ y of Psychiatry and th e Law s Ethical G uidelines fo r the Practice of Forensic Psychiatry ( AAPL ), which, in the words of the Board, is the ethical code of forensic psychiatr y as a sub -specia lty of psych iatry, contain clear guidelines as to the duty of con fidentia lity. The general A MA G uidelines state that a ph ysician shall . . . safeguard patient confidences within the constraints of the law. The Psychiatry Annotations state that [p]sychiatric records, including even the identification of a person as a patient, must be protected with ex trem e car e. F inall y, the AAPL states that [r]espect for the individual s right of privacy and the maintenance of confidentiality are major concerns of the psychiatrist performing forensic evaluations. Furthermore, the Board s expe rt witness, Dr. Janofsky, an expert in forensic psychiatry, testified that appellant s multiple disclosures of Evaluee s confidential statements violated these ethical standards. Appellant nonetheless insists that COMAR 10.32.02.10 renders H.O. § 14.404(a)(3) unconstitutionally vague by stating that [t]he Board may consider the Principles of Ethics of the American Medical Association, but these p rinciple s are no t bindin g on the Board . That statement, ap pellant asserts, m akes it difficult for a person of ordinary intelligence and experience to have a reasonab le opportun ity to know what ethics or law the Board will be -17- enforcing[.] App ellan t argues that th e Bo ard s reliance on not on ly the AMA G uidelines, but also on the Psychiatry Annotations and the A APL in evaluating his conduct, contributed to the vagueness of H.O. § 14.404(a)(3). To the extent that appellant is arguing that the Psychiatry Annotations and the AAPL should not have been considered by the Board, he has waived that issue on appeal because he did not object to their introduction before the ALJ. We feel com pelled to no te, howev er, that even a ppellant s ex pert witnes s testified that all three ca nons o f med ical ethic s apply to p sychiatrists . III. Appellant s next argument consists of two claims: that the Board erred in finding that a forensic evaluation is the practice of medicine , and that th e facts we re not substa ntial to determine that Dr. Sale rian was c onducting a forensic evaluation. We find no merit to either claim. Appellant specifically argues that the Board erred in crediting the testimony of the State s expert witness, Dr. Janofsky, that conducting a forensic evaluation is the practice of medicine, and in rejecting the contrary testimony of appellant s exp ert witness, Dr. Merik angas. In assessing this claim, we are guided by the principle that, [w]hen two experts offer conflicting opinions, the trier of fact must evaluate the testimony of both experts and decide which opinio n, if eithe r, to acce pt. Blaker v. S tate Bd. of Chiropractic Examiners, 123 Md. App. 243, 259 (1998 ) (citing Quinn v. Quinn, 83 Md. App. 460, 470 (1990)). That is what -18- the Board did here, and there is no basis for finding that it erred in crediting the testimony of Dr. Janofsky as to this issue rather than that of Dr. Merikangas. Moreover, the AAPL states that [f]orensic [p]sychiatry is a subspecialty of psych iatry, a medical specialty. In fact, one cannot be a member of the American Academy of Psychiatry and the Law without first being a member of the Am erican Psychia tric Assoc iation, a m edical a ssociatio n, or its eq uivalen t. We further observe that the Bo ard s interpre tation of the p rovisions it administers is entitled to deference. See Gancayo, 167 Md. App. at 479 (citations omitted). Citing H.O. § 14-101(l), the Board found that [d]iagnosis of an emotional ailment, or a supposed ailment, is defined as the practice of medicine. In fact, that section defines to "[p]ractice medicine" as to engage, w ith or withou t compen sation, in me dical: (i) Diag nosis; (ii) Healing; (iii) Treatment; or (iv) Surgery. H.O. § 14-101(l). It further includes doing, undertaking, professing to do, and attempting any of the following: (i) Diagnosing, healing, treating , preven ting, [or ] prescr ibing fo r . . . . H.O . § 14-1 01(1). Appellant was retain ed by Cacheris to diagno se Evaluee. In fact, in the repo rt appellant ev entually subm itted to Cacheris, appellant included some of his opinions under a heading entitled FIN AL DIAG NOS IS. Thus , we agree with the B oard that a f orensic evaluation is the practice of medicine. Moreover, appellant gave Evaluee a prescription for Paxil an d was thus irre fragab ly practicin g med icine. Appellant also claims that the facts were not substantial to determ ine that Dr. -19- Salerian was conducting a forensic evaluation. But he makes this blanket assertion without any supporting argumen t and thus we shall no t address it beyond quoting the B oard s statement that appellan t s argume nt that he w as not perf orming a f orensic evaluation flies in the face of all of the evidence except his own testimony, which the [ALJ] found not credible both on this point and in general. IV. Appellant claims that the Board erred in finding that the conduct alleged to be unethical occurred in the practice of medicine. Specifically, he maintains tha t the Board erred in finding that appellant was practicing medicine wh en he disclosed Ev aluee s confidential information to the media, because a ppellant w as no lon ger associa ted at all with [Cacheris ] team or [Evaluee ] . . . when [the] di sclosur es wer e mad e . . . . He furth er points out that Dr. Jan ofsky testified that [Evaluee s] treatment ended when Dr. Salerian was discharged. Appellant s ethical duty to maintain Evaluee s confidences did not end when appellant was terminated f rom the de fense team on Ma y 17, 2001. D r. Janofsky testified that in doctor-patient therapeutic r elationships, th e general sta ndard is tha t you maintain confiden tiality until the patient allows you to release it through consent and that, in the forensic setting, the psychiatrist maintains confidentiality to the extent possible given the legal contex t. 6 Yet, appellant breached this duty by not maintaining Evaluee s confidences 6 This mea ns that the u sual precep ts of medic al confide ntiality still apply but w ith limitations such as the disclosure th e psychiatrist is expected to mak e to the Evaluee s -20- after being terminated, even though Cacheris letter of May 17, 2001, ending their relationship, clearly warned h im that disc losure of c onfidentia l commu nications w ould violate e thical ru les and privileg e laws. Moreover, the Board cited numerous instances of appellant s unprofessional conduct that occurred while a ppellant w as still engage d by Cache ris to condu ct the foren sic evaluation of Evaluee. Specifically, appellant violated the boundaries of forensic psychiatry by prescribing an antidepressant for the Evaluee ; by importuning the Evaluee to authorize him . . . to reveal to Evaluee s wife [Evalu ee s] long history of sexual betrayal and exploitation [of her] ; by coerc[ing] the Evaluee s assent to this disclosure by stating to the Evaluee that the informatio n was go ing to be printed or aired in the media anyway ; and by attempt[ing] to obtain Evaluee s permission to reveal this information to the media. Finally, to bolster his argument that his disclosures did not occur in the practice of medic ine, appellant cites McDonnell v. Commission on Medical Discipline, 301 Md. 426 (1984). In McD onnell, the Court of Ap peals held that a physician that intimidated ex pert witnesses, who w ere to testify again st him in a m alpractice trial, by ca lling their medical colleagues and communicating to them his intention of having transcripts of [the witnesses ] depositions disseminated to their local and na tional m edical so cieties, McD onnell, 301 Md. at 428, did not engage in that conduct while in the practice of medicine because those actions were not directly tied to the physician's conduct in the attor ney. In the forensic se tting, the psychiatrist is required to give notice to the evaluee of any limitations on confidentiality. -21- actual performance of the practice of medicine, i.e., in the diagnosis, care, or treatment of patients . McD onnell, 301 Md. at 437 . In other words, the doctor s conduct occurred during jud icial proceed ings agains t him based upon conduct constituting malpractice but did not occur in the workplace where he was present for the purpose of practicing medic ine. Cornfeld v. State Board of Physicians, 174 Md. App. 456, 475 (2007) (citation omitted). Fifteen years later, in Board of Physician Quality Assurance v. Banks, 354 Md. 59 (1999), the Court of Appea ls upheld the Board s f inding that a hospital physicia n who, w hile on duty in the hospital, sexually harassed other hospital employees who w ere attemptin g to perform their jobs, was guilty of immoral or unprofessional conduct in the practice of medicine. Id. at 76-77. Relying on Banks, we recently asserted that the touchstone for determining whether misconduct occurred in the practice of m edicine m ust be wh ether it was sufficiently intertwined with patient care to pose a threat to patients or the medical profession. Cornfeld , 174 Md. App. at 474 (citing Banks, 354 M d. at 76- 77)). Appellant s misconduct was, to be sure, suff iciently intertwined with patient care to pose a threat to patients or the medical profession. Cornfeld , 174 Md. App. at 474 (citing Banks, 354 Md. at 76 -77)). In fact, his conduct was more intertwined with patient care than Banks s conduct was. Whereas Banks s conduct was directed at hospital employees and thereby affected the medical profession but not patients themselves, appellant s acts the disclosure of Evaluee s confidential commu nications d irectly affected both. Appellant, as -22- we previously noted, was treating Evaluee by prescribing Paxil and his disclosures also posed a threat to the medical profession by having, as the ALJ found, a chilling effe ct on patien ts and potential patients alike who should be assured that information divulged to the psychiatrist, whether in the treatment or the forensic setting, will be held in utmost confid ence. Thus, the Board did not err in finding that appellant s conduct occurred in the practice of me dicine. V. Appellant contends that the Bo ard did no t have sub stantial eviden ce to find that his conduct was immoral and unprofessional in the practice of medicine and that he violated the immoral a nd unpro fessional co nduct pro vision of th e Maryland Practice A ct. Specific ally, appellant claims that, although H.O. 14-404(a)(3) a lleges imm oral or unprofessional conduct, the State, in its charging document, charged him with immoral and unprofessional conduct in the practice of medicine, in violat ion of H .O. § 14-40 4(a)(3) . Thus the State had to prove, he asserts, that his conduct was both immoral and unpro fession al, instea d of sim ply unpro fession al. Appellant s argument has no merit. He was clearly charged under H.O. 14 -404(a)(3), which unequ ivocally p rohibits immo ral or un profes sional c onduc t . . . . A typographical error in a chargin g docum ent which otherwise correctly cites the relevant statute under which a docto r is charg ed is of no con sequen ce. -23- VI. Appellant contends that the Board employed various procedures that violated fairness and due process. Specifically, he argues: (1) that he sought a pre-trial deposition and/or video deposition of Evaluee and that the ALJ erred in not granting one because it had power to order it by ordering the Administrative Prosecutor to Colorado to attend such a deposition; (2) that E valu ee s testim ony by telephone was so fraught with problems that it denied [a]ppellant a fair hearing ; (3) that Evaluee was not effectively under oath when he testified by telephone because th e ALJ, w ho admin istered the oa th, was sitting in Maryland and thus had no statutory power to administer an oath to a person in Colorado ; (4) that his due process rights were violated by the introduction into evidence of the hearsay notes of the Board s investigator, Carol Palmer; (5) that his due process rights were violated by the ALJ s admitting into evidence the memo of Catherine Heuer, a former client of Cacheris; and (6) that his hearing was unf air because the ALJ refused to allow appellant to substitute a witness for a Wash ington Po st writer wh o purporte dly would h ave testified f avorably for a ppellant. First, appellant arg ues that the A LJ erred in denying him a pre-trial deposition and/or video deposition of Evaluee , but he cites n o authority in sup port of this position. Discovery in cases before the Board is governe d by COM AR 10 .32.02.03E .(3) and (4) w hich perm it only limited discovery of such things as witness lists and statements of expert opinions. Beyond that, discovery is not permitted. COMAR 10.32.02.03E(5) ( Parties are not entitled to discovery of items other than as listed in §E(3) and (4) of this regulation. ). Because -24- §E(3) an d (4) do no t list depositions, th e ALJ d id not err in de nying appella nt s request. In any event, Evaluee testified by phone, which given the security arrangement put in effect by the federal government, was the only way Evaluee could testify at all and appellant had, at that time, the opportunity to cross-examine him. Second, appellant argues that Evaluee s testimony by telephone was so fraug ht with problems that it denied [a]ppellant a fair hearing. Evaluee s telephonic testimony was subject to federal government restrictions. The telephone connection with Evaluee could be sustained only for fifteen minutes at a time, at which point the connection was dropped and had to be reconnected. In addition, there were points at which Evaluee could not be heard clearly. After hearing argument on the admissibility of Evaluee s telephonic testimony, the ALJ ruled that she would not consider it because she did not have the confidence that the record would be clea r and co mplete . . . . When the Board s counsel requested that the ALJ reconsider her decision to strike Evaluee s entire testimon y, the ALJ rev iewed he r notes and the transcrip t of Evaluee s testim ony. She fou nd that altho ugh the E valuee w as asked to repeat his responses multiple times througho ut, his answers were ultimately repeated, heard, and reported. She found that appellant had a full and fair opportunity to cross examine the Evaluee, via telephone, and had every opportunity to request that the Evaluee repeat his responses to the satisfaction of Coun sel. The AL J reversed h er earlier decis ion and he ld quite prope rly that, in accordance with th ese find ings, sh e wou ld cons ider the t elepho nic testim ony. -25- Moreover, Evaluee s testimony was corrobora ted by other w itnesses wh o testified in person at the hearing, including Cacheris and Evaluee s wife, and by documents introduced into evidence, such as Evaluee s letter instructing appellant not to disclose his confidences. There was thus substantial evidence in the record independ ent of Ev aluee s telep honic testimony to support the Board s findings. Third, appellant argues that Evaluee was not effectively under oath when he testified by telephone because the ALJ, who administered the oath, was sitting in Maryland and thus had no s tatutory powe r to administer an oath to a person in Colorado. Appellant cites no author ity in supp ort of th is thesis. The ALJ ruled that she had the power to conduct all or part of hearings by telephone under the Board s rules of procedure, that authorization carries with it the power for [her] to swear in witnesses that are going to testify by telephone, and that there is no limitation under those rules about whether or not the person has to be present in the state of Maryland in order for the oath to be effective. We see no error of law in her conclusion. In any case, as we stated earlier, there was substantial evidence in the record to corroborate Evaluee s testimony that appellant acted unprofessionally in the practice of medicine. Fourth, appellant argues that his due process rights were violated by the introduction into evidence of the notes of the Board s investigator, Carol Palmer, who accompanied the administrative prosecuto r to a meeting with Eva luee while he was in carcerated in Virginia. He argues that the notes were hearsay. But it is well settled in Maryland that hearsay -26- evidence is admis sible into eviden ce at ad ministra tive hea rings. Eichberg v. Maryland Bd. of Pharmacy, 50 Md. App. 189, 193 (1981). Furthermore, appellant cross-examined Palmer about the notes, and he also cross-examined Evaluee, who purportedly made the statemen ts contained in the notes. Appellant s argument is therefore unpersuasive. Fifth, appellant claims that his due process rights were violated by the ALJ s admitting into evidence the mem o of Cath erine Heu er, a forme r client of C acheris, wh o called him apparently to complain about app ellant. He argues that he could not properly cross-examine Heuer because h e had repre sented her in the past on another matter. However, Heuer was not on the witness stand; Cacheris was, attem pting to spea k about a c onversatio n he had w ith Heuer in which s he told him appellant had disclosed to her info rmation about Ev aluee. In any event, as the Board notes, Heuer s allegation against appellant played no role in the ALJ s or the Board s decision. T he Board spec ifically found that appellant s disclosure of Evaluee s mental state to Heuer, though significant, did not have any effect on the Board s ultima te conc lusion, o r on the sanctio n . . . . Sixth, appellant argues that his hearing was unfair because the ALJ refused to allow appellant to substitute one witness with a Washington Post writer. Before the ALJ, appellant proffered that the reporter in question contacted appellant for material on Evaluee and that appellant refused to provide any information beyond the fact that he was involved as a forensic e valuator. It is difficult to see how this testimony is of any material consequence -27- as appellant f urther proffered that the reporter would testify that this phone call occurred before Evaluee purportedly gave appellant his consen t to disclose inf ormation to the media. Moreover, as we previously noted, there was ample evidence that appellant had been instructed by Cacheris and Evaluee not to disclos e any inform ation to the m edia excep t to inform them that he had been engaged by the defense. And Dr. Janofsky opined that, even if Evaluee had given appellant co nsent to use med ia contacts, appellant s proper course of action as a forens ic evaluator w ould be to c onsult with Cacheris before making any stateme nts to the media . VII. Appellant contends that the Bo ard erred in finding th at [he] wa s an agen t of Plato Cach eris. He argues that he was a crisis manager for Evaluee, not a forensic evaluator for Ca cheris. And thus, his disclosure o f Evaluee s sexual activ ities to Evalue e s wife, his Paxil presc ription, and h is statements to the press a ll of which he asserts were consented to by appellant - were consistent with his role as Evaluee s crisis manager. Howeve r, the Board s finding that appellant was engaged as a forensic evaluator was supported by substantial evidence, as we discussed earlier in this opinion. We reiterate that Dr. Janofsky testif ied that app ellant s assign ment wa s a typical one for a foren sic evaluator, that Cach eris testified that he engaged appellant to render an opinion as to whether Evaluee had any viable psychiatric defenses, that ap pellant hims elf produc ed the fore nsic psychiatric report answering the very questions Cacheris posed to him, and finally, that -28- appellant signed the governm ent s SAM agreement spelling out that the information he obtained could be used, as the Board found, only in preparation for the defense of the accused. VIII. Appellant claims that the Board erred in finding that the moral imperative exception to confidentiality was not justifiable in this matter. He argues that the AMA Ethical Guidelines create an exception to a physician s duty not to disclose confidential communications that can be invoked to protect the welfa re of the ind ividual or the public interest. He says he exercised the imperative, morally, to speak out in the interest of the commu nity out of the grave concern for the community s safety. The public interest, according to appellant, was the failure of the FBI, the Catholic Church, and the medical profession to fulfill [their] obliga tions, that is, to pro vide Eva luee with n eeded th erapeutic interven tion. He asserts that the Catholic Church failed to recommend Evaluee for treatment even though Evaluee, a Catholic, confessed his sexual a ctivities and h is espionage activities to Catho lic priests ; and the medic al com munity, which treated Evaluee for migraine headaches, did nothin g to determ ine the und erlying issues. A ppellant believed these institutions needed reform and, as he testified during the hearing, he followed an ethic that was bigger than forensic psychiatry, and he listen[ed] to [his] heart and . . . d[id] what [he] believe[d] [wa]s right. -29- Appellant cites no authority for his argument that under such circumstances, a forensic evaluator, or even a treating psychiatrist, may disclose an evaluee s confidential information to promote institutional reform. The seminal case defining a mental health exp ert s duty to disclose a patient s confidential information to a third party is Tarasoff v. Regents of the University of California , 17 Ca l. 3d 425 (1976 ). In that case, a patient told his therapist that he was going to kill Tatiana Tarasoff, and he subsequently did. Tarasoff, 17 Cal. 3d at 430. The California court held that the therapists could be liable for not warning Tarasoff, stating that the therap ist s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and, even then, that he do so discreetl y, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. Id. at 441. In contrast, Evaluee obviously did not pose a threat or danger to the public at the time of appellant s disclosures; nor does appellant contend otherwise. Furthermore, Dr. Janofsky testified that he was familiar with the Tarasoff case. When asked by the State during the hearing if he knew of the public interest or community interest exception to patient confiden tiality in a criminal forensic setting, he testified that [i]t simp ly doesn t exist and that he knew of no exception in the literature, either the legal or in the psychiatric or the forens ic psychia tric literatu re, of su ch an e xceptio n. Relying on Tarasoff and Dr. Janof sky s opinion, th e ALJ f ound, as d id the Board, that -30- there was no moral im perative o r commu nity interest excep tion to appe llant s duty to maintain Evaluee s co nfidences. We a gree and find no error. IX. Appellant contends that the Board erred in its application of the law of waiver concerning [Evaluee s] assertion of breach of confidence. Specifically, he maintains that [a] communication can be confidential and receive legal protection only so long as the one who holds the privilege . . . keeps the confidence himself, and that, because Evaluee had posted stories abou t the sexual e xploitation o f his wife o n the Internet prior to meeting appella nt, the inf ormatio n was clearly [n ot] con fidentia l or prote cted by p rivilege . Appellant confuses privilege and confidentiality. Privilege statutes must be narrowly construed , as [p]rivileg e is the legal pr otection giv en to certain communications and relation ships, i.e., attorney-client privilege . . . . Doe v. Maryland Bd. of Social Workers, 154 M d. App . 520, 52 8, aff d, 384 Md. 16 1 (2004) (citations omitted). [P]rivileges provide for an environment in which open communication can occur without the fear that the communication will later be used in a court or administrative proceeding against the person making the comm unicatio n. Doe, 384 Md. at 170. Confidentiality, on the other hand , is broader than pr ivilege. See id. at 171. Thus, information that is not protected by a privilege sta tute can still b e conf idential in forma tion. Doe, 154 Md. App. at 528. -31- As the Board stated, Evalu ee is not trying to p revent app ellant from using his communications against him in a court or administrative proceeding. Thus, the cases appellant cites in supp ort of his argu ment, n otably, In re: Aletheaw, 130 Md. App. 635 (2000); Reynold s v. State, 98 Md. App. 348 (1993); and Hamilton v. Verdow, 287 Md. 554 (1980), are not applicable to the case at bar because those cases dealt with the waiver of privileged information in court proc eedi ngs. In the instant c ase, p rivile ge does n ot ap ply, but con fidentia lity does. The Board also found that simply because some of the information Evaluee disclosed to appellant was already available to the public does not mean appellant s duty to keep the information confiden tial was w aived in any way. This finding by the Board was supported by the ethic al guide lines ad mitted in to evide nce an d by Dr. Janofsky, who testifie d that it would have made no difference if the information was already released to the press before appella nt releas ed it him self. X. Fina lly, appellant claims that the Bo ard erred in admitting into evide nce letters in the investigatory file from Steven Salky, Evaluee s attorney at the time of the hearing, because the letters were hearsay. As we stated earlier, it is well settled in Maryland that hearsay evidence is admissible into evidence at administrative hearings. Eichberg, 50 Md. App. at 193. JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT. -32- -33-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.