The Court of Special Appeals of Maryland (“Maryland Appellate Court”) held in its unreported opinion filed on May 30, 2018 that the Maryland State Board of Physicians (“Board”) had authority to revoke a Maryland abortion doctor’s medical license for “unprofessional conduct” based on violations of the standard of care in providing in-office abortion services to a woman at 28- to 29-weeks gestation, and that the Board’s action was not so disproportionate as to be arbitrary or capricious because the doctor’s violations were egregious.
The Maryland Appellate Court held that the Board was authorized, pursuant to COMAR 10.32.02.09B(6), to consider as aggravating factors the doctor’s prior disciplinary history (i.e., his alleged failure to meet the standards of quality care, inadequate documentation, and engaging in unprofessional conduct with patients based upon kissing, hugging, inappropriate sexual comments, and inappropriately shredding medical records), the fact that the violations had the potential to cause harm to the patient, and the prior attempts to rehabilitate the doctor.
The Board determined that the Maryland abortion doctor had met in his office with a 27-year-old female patient from Denmark and her husband, at around 7 p.m. on February 28, 2014. The woman was between 28 and 29 weeks pregnant and was seeking to terminate her pregnancy due to significant fetal anomalies, including spina bifida with myelomeningocele, and bilateral ventriculomegaly.
The doctor obtained the woman’s medical history, checked her vital signs, and performed a physical examination and an ultrasound that revealed no fetal heartbeat. The doctor documented in the woman’s medical record that the fetus had died in utero. The doctor claimed that he advised the woman that one option was to return to Denmark to deliver the stillborn fetus but she elected instead to go forward with a medically induced delivery at that time.
Sometime before midnight, the doctor administered an intrauterine injection of digoxin and lidocaine in a hypertonic saline solution (digoxin and lidocaine are used to induce fetal demise by arresting the fetal heart; hypertonic saline induces labor). The woman was also given an oral dose of Mifeprex to induce labor. Around midnight, the doctor intravenously administered midazolam, a sedative, and then discharged her to a nearby hotel room where she was staying with her husband, with instructions to return at 9 a.m.
The woman called the doctor about four hours later and advised him that she was in labor. The doctor met her at his office at 5 a.m. and administered misoprostol, a drug used to induce labor and ripen the cervix, sublingually. She was put under conscious sedation with intravenous midazolam and was given Nubain, a narcotic painkiller, intravenously. Around 9 a.m., the doctor delivered the stillborn fetus and the placenta. She was discharged from the doctor’s office by 10 a.m. and did not return for follow-up care.
The Board rejected the doctor’s characterization of the procedure as an abortion in light of the undisputed evidence documented in the medical records that there was no fetal heart rate when the woman presented to the doctor. The Board reasoned that, in the absence of a fetal heart rate, the doctor should have referred the woman to a higher-level facility. The Board found that the doctor exercised poor clinical judgment by disregarding his own medical assessment of the patient and treating the patient he expected rather than the patient who actually presented, and the administration of digoxin was not medically indicated and was unnecessary.
The Board stated that the doctor delivered the stillborn fetus without the assistance of medical staff and without the surgical equipment needed to perform surgery if the need arose; he lacked hospital privileges; he was barred from performing surgical abortions; and, he did not have a transfer agreement in place. Furthermore, the procedure, as performed, was unnecessary, not medically indicated, and had the potential to cause serious harm to the patient when performed in his private office setting. For these reasons, the Board found that the doctor had violated the appropriate standards for the delivery of quality medical care by delivering a 28-week stillborn fetus in an office setting.
With regard to the unprofessional conduct charge, the Board stated that a finding of a standard of care violation did not necessarily mean that the conduct was unprofessional. However, certain violations of the standard of care may be so egregious as to amount to unprofessional conduct in themselves. The Board concluded that the standard of care violations committed by the doctor were so egregious and so unsound as to amount to unprofessional conduct in themselves.
If you or a loved one suffered harm as a result of an abortion in Maryland or in another U.S. state, you should promptly find a Maryland medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your abortion claim for you and represent you in an abortion injury case, if appropriate.
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