In its reported opinion filed on January 28, 2016, the Court of Special Appeals of Maryland (“Appellate Court”), Maryland’s intermediate Appellate Court, ruled that the Maryland General Assembly did not intend that doctors who have been the target of Maryland Board of Physicians’ disciplinary proceedings could be compelled to provide testimonial evidence about the disciplinary proceedings even though all documentary evidence regarding the action of the Board is protected by the privilege in HO § 14-410(a).
In the case the Appellate Court was deciding, which was a workers’ compensation appeal, the claimant’s Medical expert designated to testify on his behalf had previously agreed to the entry of a consent order by the Maryland State Board of Physicians (“Board”) to resolve disciplinary proceedings brought against him (the consent order concluded that the physician’s “actions and inactions [with respect to the patients reviewed] constitute a failure to meet appropriate standards for the delivery of quality medical care, in violation of H.O. § 14-404(a)(22); gross overutilization of health care services, in violation of H.O. § 14-404(a)(19); and a failure to keep adequate medical records, in violation of H.O. 14-404(a)(40).”).
During the de bene esse deposition of the claimant’s expert expected to be introduced into evidence during the trial in the workers’ compensation appeal, the attorney for the employer/insurer asked the expert a series of questions about the Board’s disciplinary proceedings against him and the consent order, which the expert refused to answer, asserting a claim of privilege pursuant to HO § 14-410(a).
HO § 14-410
HO § 14-410 provides: “(a) Except by the express stipulation and consent of all parties to a proceeding before the Board, a Disciplinary Panel, or any of its other investigatory bodies, in a civil or criminal action: (1) The proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies are not discoverable and are not admissible in evidence; and (2) Any order passed by the Board or disciplinary panel is not admissible in evidence. (b) This section does not apply to a Civil Action brought by a party to a proceeding before the Board or a disciplinary panel who claims to be aggrieved by the decision of the Board or the disciplinary panel.”
The Appellate Court held that the reference to “civil action” in HO § 14-410(a) includes any civil action, not just medical malpractice actions, as argued by the employer/insurer, and therefore the privilege in HO § 14-410(a) was properly invoked by the claimant’s expert relative to a workers’ compensation claim.
The Appellate Court further held that the language of the statute applies not only to “records or files of the Board,” but also to “proceedings . . . of the Board,” and the term “proceedings” encompasses not only “documentary evidence” that may have been presented to the Board, but other information as well, and expands the scope of the protection afforded by the privilege to all matters placed before or considered by the Board.
To rule otherwise, the Appellate Court stated, a Board’s decision to impose disciplinary action could serve as grounds for cross-examination of a physician testifying in any civil action, which would severely limit the utility of the statutory privilege and would be contrary to one of the purposes to be served by the privilege, which is to encourage full and frank participation in a disciplinary proceeding without fear of later entanglement or repercussions in civil or criminal litigation.
The Appellate Court further held that there is no exception to the privilege that permits evidence of an adverse ruling of the Board to be used for cross-examination or impeachment of a physician who is testifying as an expert witness.
Source Pepsi Bottling Group, et al. v. Plummer, No. 1055.
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