May 17, 2013

162017_132140396847214_292624_nThe Court of Special Appeals of Maryland (“Court of Special Appeals”), Maryland’s intermediate appellate court, issued a decision on May 3, 2013 in a case where a physician who had consented to disciplinary terms imposed on her by the Maryland Board of Physicians (“Board”) after the Board alleged that she improperly prescribed opiates and other controlled substances for a dozen patients over more than eight years had second thoughts about her agreement with the Board and requested that the terms of the Consent Order that she had voluntarily signed be changed by the Board.

The physician claimed that she did not foresee all of the professional consequences of the Consent Order, and, after experiencing those consequences, she asked the Board to revise the Consent Order.

The Underlying Disciplinary Allegations

The physician had been practicing pain management and anesthesiology in Maryland since 1973. The Board had received a report in 2009 that the physician had been sending prescriptions for painkillers to patients through the mail and without conducting appropriate examinations. After an investigation, the Board determined that the physician had failed to meet the appropriate standard of care and failed to keep adequate medical records for twelve individual patients.

The Board charged the physician with prescribing potent painkillers (including Oxycontin, Percocet, and other opioid medications) from her home, without justification, without monitoring the patients, and without examining or seeing the patients either prior to or over the course of prescribing the drugs, which could have exposed the physician to revocation of her license and significant fines.

Proceedings Before The Board

Subsequently, the Board and the physician entered into a Consent Order, signed by both the physician and her attorney (who “read and approved” the Consent Order ), to resolve the charges against her. The Consent Order suspended the physician’s Maryland license immediately for ninety days and placed her on probation for at least two years. The Consent Order also required that the physician not practice algology or pain management and not treat any patients for chronic pain management, and that she forfeit her Federal DEA registration number and Maryland CDS registration number and not re-apply for the same. Significantly, the Consent Order stated that the physician waived any right to contest the terms of the Consent Order, she waived any right to appeal, and she acknowledged that she understood the Consent Order’s meaning and effect.

Several months later, the physician’s attorney wrote to the Board to ask “that her consent order be revised or interpreted to allow her the right to have DEA or CDS registrations for the sole purpose of writing orders for anesthesia drugs for Hospital patients” because the physician allegedly did not realize at the time she entered into the Consent Order that forfeiting her federal DEA and Maryland CDS registration numbers would preclude her from returning to her anesthesiology practice at a local hospital because “the Hospital could not fill her ‘orders’ for anesthesia drugs unless she had a DEA registration number” and because the “Hospital by-laws expressly require her to have a DEA registration number to maintain staff privileges.”

The Board denied the physician’s request, stating that “Forfeiture of [the physician’s] DEA registration number was an essential component in resolving concerns that she engaged in dangerous prescribing practices, which the Board considered a threat to the health, safety and welfare of the public. To eliminate that condition and permit [the physician] to hold a valid DEA registration number would diminish an important safeguard of the Consent Order, which restricted her ability to prescribe controlled dangerous substances. To permit [her] to obtain a DEA registration number, enabling her to resume prescribing controlled dangerous substances would be contrary to the best interests of the public.” The Board disagreed that there had been any mistake and noted the physician’s representation that she had “fully comprehended the meaning and terms of the Consent Order” when she signed it.

The Appeals

The physician filed a Petition for Judicial Review, Administrative Mandamus, and/or Declaratory Relief in the Circuit Court for Baltimore City, which was denied (the Circuit Court granted the Board’s Motion to Dismiss). She then filed the present appeal to the Court of Special Appeals.

The Court of Special Appeals framed the issue before it as whether the Board erred in declining the physician’s request to revise the Consent Order after the fact, and then whether the circuit court erred in refusing to compel the Board to revise it.

The Court of Special Appeals held, “We find no error at either level. [The physician] knowingly and voluntarily, with full disclosure and advice of counsel, waived her rights to challenge the terms of the Consent Order. Even still, the Board considered and denied her request for a revision … As a matter of fairness, a litigant “cannot, knowing the facts, both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal.””

The Court of Special Appeals noted that, “By entering into this indisputably valid Consent Order, [the physician] spared herself the cost, stress, uncertainty, and potentially-even-more-serious consequences of proceeding to an administrative hearing. She knew and acknowledged, after consulting with counsel who read and approved its terms, that the deal included agreements to forfeit her registration numbers during the period of her probation and to waive her rights to challenge the terms of the Consent Order or to appeal them. She does not argue that the Consent Order is void or voidable, procured by fraud or misrepresentation, nor was the mistake on which she relies mutual. On this posture, then, [the physician] had no right to challenge or appeal directly the terms of the valid and enforceable Consent Order, and the Board, having agreed to a “no backsies” resolution of these serious charges, did not commit an error of law by holding her to her waiver and declining her request for a revision … She was welcome to ask the Board to consider revising the Consent Order, and she did. But her acceptance of the terms of the Consent Order and the impact of its meaning and effect left any decisions about future revisions to the administrative discretion (or grace) of the Board, which in turn was free to hold [the physician] to her agreement. We find no error, either in the Board’s decision not to revise the Consent Order or the circuit court’s decision to dismiss [the physician’s] petitions for judicial review, administrative mandamus, and declaratory judgment. No backsies.”

To read the Court of Special Appeals’ opinion in full, click here.

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