Maryland Appellate Court Overturns Board Of Physician’s Disciplinary Action Against Highly Distinguished Research Physician

The Court of Special Appeals of Maryland (“Maryland Appellate Court”) stated in its unreported opinion filed on May 6, 2022, “We agree with the circuit court that the disciplinary panel failed to exercise any discretion, but instead applied an inflexible rule that requires the imposition of some sanction whenever a violation is found, regardless of the surrounding circumstances. Consequently, we shall affirm the judgment of the circuit court.”

“All cases require the exercise of discretion, but the need for discretion is especially urgent in this case. In a language that puts a premium on understatement, one would say that Dr. Modjarrad is a highly distinguished research physician. He has no prior disciplinary record. In mistakenly certifying that he had submitted to a CHRC [Criminal History Records Check], he did not intend to conceal a criminal record, because he has no criminal record to conceal. His inadvertent error is virtually certain never to recur. Moreover, his error was almost certainly the result of the Board’s own misleading website, because more than 10 percent of the other applicants made the same mistake as he. He did not respond to the Board’s initial inquiries because he did not receive them, but he responded promptly as soon as he had actual knowledge of the problem. In these circumstances, the Board’s Javert-like rigidity epitomizes an abuse of discretion through the failure to exercise discretion.”

“Not only did the Board commit legal error by failing to exercise discretion, but its decision was arbitrary. The term “arbitrary” includes “‘willful and unreasoning action, without consideration and regard for facts and circumstances presented[.]’”

The Underlying Facts

Dr. Kayvon Modjarrad was initially licensed to practice medicine in Maryland in 2016. At that time, the Board of Physicians did not require applicants to submit to a Criminal History Records Check (“CHRC”). Later that year, however, Maryland law began to require a CHRC for all Board licensees who were renewing their licenses.

On September 13, 2017, Dr. Modjarrad submitted an online application with the Board of Physicians to renew his license for the first time. At the beginning of the application, Dr. Modjarrad saw a pop-up screen titled “STOP Criminal History Background Check.” The pop-up screen asked whether Dr. Modjarrad had submitted fingerprints for a criminal background check: “Have you submitted your fingerprints for a Criminal Background Check? Pursuant to Health Occupations, the Board may not renew a license if the criminal history record check information has not been received. By completing this renewal, you are attesting that you have completed your Criminal History Records Check. Failure to submit to a criminal history check is a violation of the Medical Practice Act and may result in disciplinary action.” Dr. Modjarrad clicked a box to acknowledge that he had “submitted [his] fingerprints to CJIS BEFORE attempting to complete [his] renewal application.” Dr. Modjarrad, who has no criminal record, mistakenly believed that he had satisfied that requirement because he had submitted his fingerprints to an agent of the United States government in connection with a federal background investigation.

Dr. Modjarrad was not alone in incorrectly certifying that he had completed a CHRC. Of the 13,044 physicians who renewed their licenses during fiscal year 2018, approximately 1,500 – or more than 10 percent – incorrectly checked the box indicating that they had completed a background check.

The ALJ found that Dr. Modjarrad “has no prior disciplinary history, is engaged in important work implicating national security, and enjoys a distinguished career in the medical profession.” She recommended that the Board impose no fine, because Dr. Modjarrad, she found, had committed an “honest mistake” that led to a violation of a strict-liability statute. The ALJ turned to the question of whether the Board should issue a reprimand. She cited Dr. Modjarrad’s concern that a reprimand might jeopardize his security clearance. She found that Dr. Modjarrad’s concern “is not unfounded.” The ALJ wrote: “Under the unique circumstances in [this] case, where the CHRC requirement was new, the pop-up alert in the renewal application was confusing or was misread by hundreds of other physicians, [Dr. Modjarrad] had no motive to falsify his application, and the violation upheld is based on strict liability for failure to submit to the CHRC, a departure from the minimum sanction of reprimand is warranted.” Because a reprimand “might jeopardize” Dr. Modjarrad’s security clearance, the ALJ recommended that the Board not impose a reprimand. She noted that the decision would remain a matter of public record.

After a hearing, a disciplinary panel of the Board agreed with the ALJ’s conclusion that Dr. Modjarrad had failed to submit to a CHRC at the time of his license renewal, in violation of HO § 14-404(a)(42). The panel, however, rejected the ALJ’s recommendation that, in view of the unique circumstances of this case, it should impose no sanction. Instead, the panel adopted the State’s contention that the threat to Dr. Modjarrad’s vital security clearance was merely “speculative.” In the panel’s words, “[I]t is inappropriate to take into consideration any speculative or hypothetical collateral effects of the sanction imposed.” The panel imposed the sanction of a reprimand and a $500 fine.

The Maryland Appellate Court stated: “The essence of discretion is the consideration of the specific facts and circumstances of each particular case. Although other physicians may have committed the same violation as Dr. Modjarrad, the Board is not required to treat them in exactly the same way as it treats Dr. Modjarrad if the facts of their cases are in some other way materially different from the facts of his. Had the disciplinary panel actually exercised any discretion in fashioning the sanction in Dr. Modjarrad’s case, it might have been appropriate to decide this case on the terms posed by the Board, by asking whether the sanction was “extreme and outrageous.” The panel, however, exercised no discretion. Because the failure to exercise discretion is itself an abuse of discretion and amounts to arbitrary agency action, we affirm the circuit court’s decision to reverse the panel’s decision and to order the Board to vacate the reprimand and the fine against Dr. Modjarrad.”

Source Maryland State Board of Physicians v. Modjarrad, M.D., No. 1295 September Term, 2020.

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This entry was posted on Sunday, July 24th, 2022 at 5:25 am. Both comments and pings are currently closed.


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