June 4, 2021

The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, held in its published opinion dated April 28, 2021: “After Doctor Thomas F. Burke entered guilty pleas to five counts of prescribing controlled dangerous substances in violation of Md. Code Ann., Crim. Law (“CR”) § 5-902(c), the Maryland State Board of Physicians (the “Board”) found that his conduct constituted crimes of moral turpitude and revoked his medical license. The Circuit Court for Baltimore City affirmed. Dr. Burke appealed. We affirm the circuit court’s decision.”

Background Facts

On January 28, 2019, Dr. Burke pleaded guilty to five counts, each alleging a violation of CR § 5-902(c), namely, writing prescriptions outside “the course of regular professional duties.” At the plea hearing, he admitted to writing several prescriptions for Schedule II and IV CDS, such as, Valium (Diazepam), Xanax (Alprazolam), Adderall (Amphetamine), and Oxycodone for his long-term girlfriend, his brother, and his neighbor. Dr. Burke admitted that he did not conduct a medical examination for any of these individuals nor did he provide a medical rationale for any of the prescriptions. He insisted that he wrote these prescriptions because none of the recipients had a primary care physician and, according to Dr. Burke, each individual had been prescribed the same medications by a physician on a prior occasion.

On January 28, 2019, the Circuit Court for Harford County sentenced Dr. Burke to two-years’ incarceration on each count, to be served consecutively, with all but three years suspended and imposed a period of probation. The court gave credit against the sentence for time served awaiting disposition. As a condition of the plea, Dr. Burke surrendered his Drug Enforcement Administration and Maryland CDS registrations during the term of probation.

On November 20, 2018, prior to Dr. Burke entering the guilty pleas, the Maryland State Board of Physicians (“Board”) summarily suspended his medical license under Md. Code Ann., State Gov’t § 10-226(c)(2) after concluding that emergency action was required to protect the public’s health, welfare and safety. Dr. Burke did not challenge this summary suspension.

On May 7, 2019, the Office of Attorney General (“OAG”) filed a petition to revoke Dr. Burke’s medical license based on his January 2019 convictions. The Board charged Dr. Burke under HO § 14-404(b)3 and issued a petition to show cause. On September 9, 2019, the Board issued a Final Decision and Order and revoked Dr. Burke’s medical license. The Board found that Dr. Burke’s convictions on five counts of prescribing CDS outside the course of his regular professional duties constituted crimes of moral turpitude and were violative of the standards of the medical profession.

On October 9, 2019, Dr. Burke filed a petition for judicial review in the Circuit Court for Baltimore City. The Board opposed. After the June 25, 2020 hearing, the circuit court affirmed the Board’s decision in a written memorandum and order. Dr. Burke filed a timely appeal.

Maryland Appellate Court Opinion

Moral Turpitude

The Maryland Appellate Court stated that in a criminal context, moral turpitude tends to focus primarily on truthfulness, whereas in the administrative law context it is a more fluid concept. For the business of professional licensing and public appointments, the expression moral turpitude strikes the broader chord of public confidence in the administration of government.

The Maryland Appellate Court stated: “We hold there is substantial evidence in the record to support the Board’s conclusion that Dr. Burke’s actions reflect negatively on “the many legitimate physicians who practice medicine in accordance with professional and ethical standards, and with respect for patient safety and societal values.” The Board properly concluded that Dr. Burke’s actions were “directly connected to the medical profession” and that in writing “illegal prescriptions of CDS,” he brought “shame to the medical profession.” While we afford great weight to the legal conclusions drawn by the Board and defer to its expertise in finding that Dr. Burke committed a crime that involved moral turpitude in the administrative sphere, we independently draw the same conclusion.”

“[W]e hold that the Board followed the statutory requirements in revoking Dr. Burke’s medical license. Under the provisions of HO §14-404(b)(2), the Board could rely upon Dr. Burke’s guilty plea to conclude that he committed crimes of moral turpitude. His guilty plea served as a means of providing for an expedited and summary disposition by the Board. Felsenberg, 351 Md. at 304. The Board, therefore, properly exercised its authority in revoking Dr. Burke’s license and thus, did not act in an arbitrary and capricious manner.”

Source Thomas F. Burke, M.D. v. Maryland Board of Physicians, No. 0513, September Term 2020.

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