Commission on Medical Discipline v. McDonnell
Commission on Medical Discipline v. McDonnell
Opinion of the Court
The Commission on Medical Discipline (Commission), appellant, found Dr. Edmond J. McDonnell, appellee, guilty of a violation of Md.Ann.Code Art. 43, § 130(h)(8), “immoral conduct of a physician in his practice as a physician,” and issued a reprimand. Dr. McDonnell appealed that decision to the Baltimore City Court (now part of the Circuit Court of Baltimore City) which reversed the Commission’s decision, whereupon the Commission noted this appeal from the judgment of the Baltimore City Court.
The case had its origins in a medical malpractice suit brought against Dr. McDonnell in 1975 by a former patient, Alvin Meyer. Meyer claimed to be suffering from sexual
Dr. McDonnell has practiced medicine in the Baltimore area for more than thirty-five years. He is an associate professor of orthopedic surgery at Johns Hopkins Medical School, medical director of Children’s Hospital in Baltimore and past president of the Maryland Orthopedic Society. Apparently, he enjoys an enviable reputation among his peers in the medical profession. He was incensed that two young, relatively inexperienced physicians with limited knowledge of the specific surgical procedure
In order that those messages would have their greatest impact, Dr. McDonnell felt that the messengers should be persons held in high esteem by Drs. Nystrom and Pizzi. Accordingly, Dr. McDonnell selected Dr. Robert Keyser of Miami, Florida, under whom Dr. Nystrom had received his training in orthopedic surgery, to contact Dr. Nystrom, and Dr. Thomas Langfitt of Philadelphia, Pennsylvania, under whom Dr. Pizzi had received his training in neurosurgery, to contact Dr. Pizzi.
Dr. McDonnell did not know Dr. Langfitt personally. He was aware that his friend, Dr. John Chambers, knew Langfitt but was unable to reach Dr. Chambers. Dr. William Finney, an associate of Dr. Chambers who also knew Dr. Langfitt quite well, volunteered to call Dr. Langfitt. Dr. Finney testified that Dr. McDonnell merely asked him to inquire about Dr. Pizzi’s background and qualifications and to inform Dr. Langfitt, if he intended to call Dr. Pizzi, that it was a policy of Dr. McDonnell in cases of this nature to send a transcript of the incoming expert’s testimony to that expert’s local medical society. Dr. Finney called Dr. Langfitt that night and learned that Dr. Pizzi had completed his residency in neurosurgery about eighteen months earlier and had gone to Trenton to practice that specialty. He then informed Dr. Langfitt that Dr. Pizzi was coming to Baltimore to testify as an expert witness in the malpractice case
Dr. Langfitt attempted to call Dr. Pizzi at the outset of his testimony but was unsuccessful. He reached Dr. Pizzi by telephone on Saturday, May 14, and relayed to him the information conveyed by Dr. Finney. The message, coming as it did from the person who had brought him into neurosurgery and trained him, a man whom he greatly respected and admired, upset Dr. Pizzi so much that he cancelled his plans to attend the commemoration of his father’s fifty years in the practice of medicine because he felt he might inject a note of gloom into what should be a festive occasion. Particularly disturbing to Dr. Pizzi was his apprehension that his testimony might result in false information being spread about him as a “violator of the conspiracy of silence” which could keep him from obtaining Board certification.
In the meantime, on Friday, May 13, Dr. McDonnell instructed his secretary to call Dr. Keyser in Miami and tell him Dr. Nystrom was scheduled to testify against Dr. McDonnell and that this testimony would be transcribed and disseminated to Dr. Nystrom’s local medical society and the American Academy of Orthopedic Surgeons. The secretary
Just before noon that same day, Dr. Keyser telephoned Dr. Nystrom and relayed to him the message from Dr. McDonnell’s secretary, prefacing the information about the proposed dissemination of his testimony with “this is not a threat, but,” and admonished him to “tread lightly.” The message, delivered, as it was, by Dr. Nystrom’s mentor and a man for whom Dr. Nystrom had the utmost respect and admiration, had a considerable impact. Dr. Nystrom was intimidated and felt that he would be unable to testify with a normal degree of candor.
The telephone call to Dr. Nystrom and its effect upon him were brought to the attention of the trial judge who then conducted an inquiry in chambers. Dr. McDonnell appeared to be surprised and dismayed to learn that his conduct in initiating the intimidating message to Dr. Nystrom was regarded by the court as reprehensible. He immediately telephoned Dr. Finney to tell him not to call Dr. Langfitt, but it was too late.
The court’s offer to declare a mistrial if the plaintiff could not promptly locate another standard-of-care witness was declined, and the case continued with both Drs. Nystrom and Pizzi testifying. The jury found for Dr. McDonnell; Meyer appealed and this court, in Meyer v. McDonnell, 40 Md.App. 524, 392 A.2d 1129 (1978) reversed because of error in the instructions to the jury regarding what effect should be given to Dr. McDonnell’s conduct in “tampering” with his opponent’s expert witnesses.
It was apparently because of this court’s characterization of Dr. McDonnell’s conduct as “outrageous” that the Commission requested an opinion from the Attorney General as to its jurisdiction to consider possible disciplinary action against Dr. McDonnell and Dr. Finney. Responding to that
In reversing the Commission, the lower court held that although the Commission’s findings of fact were supported by the evidence, its conclusions based upon those facts were erroneous as a matter of law. “The legal effect of evidence and the ultimate conclusions drawn by an administrative agency from the facts, as distinguished from its findings of primary or evidential facts, are questions of law for the reviewing court.” State Department of Assessments and Taxation v. Glick, 47 Md.App. 150, 154, 422 A.2d 34 (1980), quoting 73A C.J.S. Public Administrative Bodies and Procedure § 228.
Specifically, the court held that the Commission reached erroneous legal conclusions in finding (1) that Dr. McDonnell’s conduct was “immoral” within the meaning of the statute and (2) that such conduct occurred “in his practice as a physician.”
Md.Ann.Code Art. 43, § 130(h), listing nineteen separately numbered causes
The appellee contended, and the lower court agreed, that in order for conduct to be immoral, it must be so inherently evil that one’s conscience recognizes it as wrong or where community standards recognize it as wrong, relying upon the following definitions of “Immoral,” “Immoral act or conduct,” and “Moral law” in Black’s Law Dictionary (5th ed. 1979):
IMMORAL. Contrary to good morals, inconsistent with the rules and principles of morality; inimical to public welfare according to the standards of a given community, as expressed in law or otherwise. Morally evil; impure; obscene; unprincipled; vicious; or dissolute.
IMMORAL ACT OR CONDUCT. Within rule authorizing disbarment of attorney is that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinions of the good and respectable members of the community.
MORAL LAW. The law of conscience; the aggregate of those rules and principles of ethics which relate to right and wrong conduct and prescribe the standards to which the actions of men should conform in their dealings with each other.
The court noted that the presiding judge in the Meyer case did not believe that Dr. McDonnell intended to do anything wrong or malicious. Based upon the evidence that Dr. McDonnell made no effort to conceal his conduct but, instead, acted with the approval of his trial counsel, the
We disagree with that holding of the lower court.
The Commission, which is composed of nine physician members and two consumer members, should be particularly able to gauge the effect that the telephone calls initiated by Dr. McDonnell would have upon the prospective expert witnesses for Meyer. It is true that the messages ultimately received by Drs. Nystrom and Pizzi may have been somewhat more threatening in tone than Dr. McDonnell intended to transmit. Nevertheless, the Commission, with its expertise, could certainly find that even the seemingly innocuous message that transcripts of their testimony would be forwarded to appropriate medical societies, delivered by the recipients’ mentors, would naturally tend to intimidate Drs. Nystrom and Pizzi and constrict their testimony.
It may be inferred that a person intends the natural and probable consequences of his act. State v. Gover, 267 Md. 602, 608,298 A.2d 378 (1973); Davis v. State, 204 Md. 44, 51, 102 A.2d 816 (1953); James v. State, 14 Md.App. 689, 694, 288 A.2d 644 (1972); Lindsay v. State, 8 Md.App. 100, 105, 258 A.2d 760 (1969); Director of Public Prosecutions v. Beard, [1920] A.C. 479, 12 A.L.R. 846, 858 (1920), quoting Rex v. Meade, [1909] 1 K.B. 895, 899: “A man is taken to intend the natural consequences of his acts.”
We also disagree with the lower court holding that the Commission erred, as a matter of law, in finding that the asserted immoral conduct of Dr. McDonnell was committed “in his practice as a physician.”
The court declined to hold that only those specific activities set forth in the definition of the term “practice of medicine” in Md.Ann.Code Art. 43, § 119(f) [now Md. Health Occupation Ann.Code, § 14-101(i) ]
Appellant, on the other hand, contends that “in his practice as a physician” should be construed to include acts done by a physician that might not occur directly in the course of,
We deem it unnecessary to attempt a definitive interpretation of the phrase “in the practice of his profession” or the current statutory language “in the practice of medicine.” It is sufficient to hold, as we do, that in order to be punishable or censurable by the Commission the physician’s misconduct need not be confined to his actions in diagnosing or treating a patient but must be directly related to some aspect of the practice of medicine.
If Dr. McDonnell’s attempt to suppress or, at least, constrict evidence against him in a lawsuit had involved only his pocketbook, we might well have concluded that his ill-advised conduct was that of a litigant, not a physician. The evidence which Dr. McDonnell sought to affect, however, was medical expert witness testimony that he had failed to use adequate skill in treating a patient. Such evidence involved a risk of loss of more than money; at hazard, to some extent, was Dr. McDonnell’s professional reputation,
Since the Commission is composed of physicians with some expertise in the matter, its interpretation of what constitutes or is included in “the practice of medicine” is entitled to some deference. We believe, therefore, that the Commission could legally conclude that a physician’s attempt to protect and preserve his professional reputation is conduct “in his practice as a physician” because his future practice may well depend upon his reputation.
Appellee raised several constitutional issues which the lower court found it unnecessary to address. He contends
We will not ordinarily decide any point or question which was not tried and decided by the lower court, but where a point or question of law was presented to the lower court and a decision thereof by this court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal, we may decide such point or question of law. Md.Rule 1085. Since all but one of the constitutional issues raised by appellee fall into that category, we shall here address them.
The first of those contentions was answered by the Court of Appeals in Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 14-15, 400 A.2d 396 (1979):
We also conclude that § 130 is not void for vagueness. As we indicated initially, the statute informs a physician that if he engages in any of the activities forbidden by § 130(h) he will be subject to discipline and the possible loss of his license. This is plain language which can be understood by persons of ordinary intelligence. “That is all that is required of a statute in order to prevent it from being vague and indefinite in a constitutional sense.” (citations omitted).
The assertion that § 130(h)(8) is unconstitutionally vague as applied to appellee because “immoral conduct” as a basis for censure was not limited to his fitness to practice medicine is without merit. A specific ground for discipline and possible revocation of a physician’s license is conviction of a crime involving moral turpitude, § 130(h)(4) [now
With respect to appellant’s third constitutional contention, we do not believe that the statutory language is so vague as to require the promulgation of rules and regulations before the statute could be enforced. The physician is adequately informed, in plain language, of the type of conduct which will subject him to discipline, Unnamed Physician v. Commission on Medical Discipline, supra; it would be absurd to require the Commission to promulgate rules and regulations listing every conceivable act that would constitute “immoral conduct” within § 130(h)(8).
In arguing that the Attorney General’s office predetermined his guilt in advising the Commission, appellee misinterprets a letter written by an assistant attorney general in response to an inquiry by the Chairman of the Commission. The Commission sought legal advice as to its jurisdiction to discipline Dr. McDonnell on the basis of his alleged conduct in the Meyer case. The reply made it clear that the Attorney General was not attempting to decide facts or make findings or reach conclusions. It stated that, on the basis of the evidence “as reported by the Court of Special Appeals,” the Commission had jurisdiction “to investigate and consider possible disciplinary action against McDonnell, but not Finney.”
Appellee’s contention that he was deprived of a fair hearing because the Attorney General’s office acted as prosecutor and as advisor to the Commission presents an issue which cannot be resolved on this appeal.
The dual role of the Attorney General as advisor to the Commission and prosecutor of cases before the Commission, as with almost all of the State’s agencies, is mandated by the Maryland Constitution, Art. V, § 3, and by Md.Code
JUDGMENT VACATED PURSUANT TO MD.RULE 1071.
CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEE.
. Use of Harrington instrumentation for fixation of the spine.
. Eligibility requirements include two years of practice after completing residency, prior to taking an oral examination.
. There is no indication that Dr. McDonnell knew anything about Dr. Pizzi’s certification status, particularly his plan to take the oral examination in September.
. Actually, twenty-three, since subsection (h)(6) lists five separately enumerated causes.
. To engage in medical diagnosis, healing, treatment or surgery, including diagnosing, healing, treating, preventing, prescribing for, or removing any physical, mental, or emotional ailment or supposed ailment of an individual, by physical, mental, emotional or other process exercised or invoked by the practitioner, the patient, or both, or by appliance, test, drug, operation or treatment. It also includes the ending of a human pregnancy and performing acupuncture. It does not include selling any nonprescription drug or medicine, practicing as an optician or performing a massage or other manipulation entirely by hand.
. Also at some possible risk, perhaps, was appellee’s license to practice, if the witnesses were to testify that his treatment of Meyer amounted to professional incompetency, which, under § 130(h) 18 [now § 14-504(4) ] constitutes grounds for revocation or suspension of a medical license.
Dissenting Opinion
dissenting.
I am troubled that we are imposing upon “the other” learned profession scruples endemic to our own. Our depiction of the witness tampering or attempted obstruction of justice as “outrageous” was a natural legal knee-jerk reaction. To a profession founded upon principles of justice the conduct is “outrageous”; even to society generally, conduct of similar character in the seventies was seen as sufficiently reprehensible to have warranted a presidential resignation. But is it peculiarly relevant to “a physician in his practice as a physician?”
Because words are the tools of our profession (like potions those of a doctor) it was not improper for the majority to support the Commission’s ruling by defining immorality as proscribed by the statute from Black's Law Dictionary. But it is incongruous I think, then abruptly to reverse course seeking solace from the medical expertise of the nine physician colleagues on the Commission to determine the scope of its own jurisdiction by holding that an intentional interference of the judicial process after consultation with counsel, was conducted “in his practice as a physician.”
We define “mortality” from our perspective but rely upon doctors for statutory interpretation. Statutory interpretation involving legislative intent is our responsibility, not that of a commission of medical specialists. Whether the nine doctors on the Commission consider an interference with the judicial process by Dr. McDonnell as conduct “in his practice as a physician” over which they have jurisdiction is of no consequence. We are to be concerned only with what the Legislature intended and the Legislature recently clarified the jurisdictional limitations it intended by rephrasing that particular discipline.
When it revised its language to condemn immoral conduct “in the practice of medicine” the restrictive purpose of the third discipline should have become abundantly clear — if not to medical practitioners on the Commission — certainly to those of us supposedly versed in statutory analysis. We know from the Revisor’s Note that no substantive change was intended by substituting the new language “in the
One need not be clairvoyant to see that the Legislature intended no greater demands upon doctors in their social intercourse or even in their enforced judicial encounters, than upon anyone else by imposing that discipline upon them as practitioners of medicine, even before the semantic clarification. The punishment of the immoral conduct prescribed was left to the judgment of medical peers, because the immoral conduct within “the practice of medicine” had nuances not necessarily familiar to laymen, lawyers or even judges. It is within that special field of endeavor — “the practice of medicine” — that called for the expertise and judgment of a commission of colleagues.
It is simply not relevant that Dr. McDonnell’s conduct may have violated the law. If such it did, he was subject to prosecution as anyone else would have been. Significantly, in my reading of the statute, he could only have been reprimanded by his peers in that cause if he had been convicted by a criminal court. Md.Health Occ.Code Ann., § 14r-504(6) expressly provides:
“Subject to the hearing provisions of § 14-505 of this subtitle, the Commission on the affirmative vote of a majority of its full authorized membership, may repri*410 mand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee:
(6) Is convicted of or pleads guilty or nolo contendere with respect to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside;”.
When read in context with the other disciplines, it is clear that if the Legislature had intended subsection (3)
The price to his reputation is more readily perceptible. Few, if any, of his peers, professional or social, could claim the distinction of having had the second highest court in the State publicly “ravel out” their “weaved-up folly”.
But even that published embarrassment was not to be the end. His peers, perhaps chagrined at the exposure of a perceived professional “conspiracy of silence”, were able to disassociate medicine from his immorality but could not in conscience smite him too hard for what he had done. Rather they “reprimanded” him professionally which ironically may have circumvented more appropriate societal sanctions.
Perhaps because he too felt that the source of this wrist-slap was not justified in rendering its judgment, or even if an amoral attitude still fails to perceive an impropriety, that de minimis sanction became his heaviest burden. Again the spontaneity of his judgment will cost him more than he could have gained. Again he ravels out his “weaved-up folly” by causing to be published a second “record of his offences”, that any of his peers who missed the first version may read another “lecture” of them.
Because I too deeply resent improper intrusions in the judicial process, I am reluctant to affirm the trial judge’s exoneration of the intruder. Because we must protect as sacred ground upon which he trod I cannot condone an improper use of the process even to effect a just result. Our system has sanctions and our process has procedures equipped to cope with conduct intended to distort the judicial process. When we permit the Commission’s act of publicly washing its hands to serve as a substantive sanction for what the judicial process had failed to do, it is a disservice demeaning to both. I must respectfully dissent.
. “(3) Is guilty of immoral conduct in the practice of medicine;”.
. “Must I do so? And must I ravel out
My weaved-up folly ...
If thy offences were upon record,
Would it not shame thee in so fair a troop To read a lecture of them?”
W. Shakespeare, Richard The Second.
Reference
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- COMMISSION ON MEDICAL DISCIPLINE v. Edmond J. McDONNELL
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