DONALD C. ROANE
MARYLAND BOARD OF PHYSICIANS, et al.
Eyler, Deborah S., Meredith, Nazarian, JJ.
After receiving and investigating complaints involving medication-for-sex relationships between appellant Donald C. Roane, M.D. and two vulnerable patients, the Maryland Board of Physicians ("Board") initiated two separate disciplinary proceedings against him: one to suspend his license to practice medicine summarily and another to revoke it altogether. The Board ultimately took both actions, and prevailed when Dr. Roane challenged both decisions in the Circuit Court for Anne Arundel County. Dr. Roane contends in these appeals that the Board lacked authority to suspend him and seek to revoke his license at the same time and, even if it had the authority, that both decisions were arbitrary and capricious and not supported by substantial evidence. Because we find no errors in the revocation proceeding, we affirm that decision, and because that decision leaves Dr. Roane with no license to suspend, we dismiss his appeal of the suspension proceeding as moot.
Dr. Roane was first licensed to practice medicine in Maryland in 1965. He maintained a full-time family practice in West River, Maryland and Annapolis, Maryland from about 1973 through 2001, "semi-retired" in 2001, then purportedly retired from the practice of medicine in 2008. The Board first charged Dr. Roane with violations of the Maryland Medical Practice Act, Md. Code (1981, 2009 Repl. Vol.), § 14-101 et seq. of the Health Occupations Article ("HO") on April 12, 2010.
A. Patient Allegations.
The Board first received allegations involving Dr. Roane in February 2003, when one of his former patients ("Patient A") filed a complaint with the Board. Patient A alleged that Dr. Roane sexually assaulted her beginning in 1974 when, at the age of fourteen, she began medical treatment with him for insulin-dependent diabetes. She alleged that the assaults continued through 2003.
Dr. Roane's advances toward Patient A began when he fondled her breasts at her first or second visit with him; she said that he showed an interest in her social life and led her to believe he cared for her. Patient A had a history of sexual abuse by her father and brother, along with a history of depression and behavior that one therapist characterized as "narcissistically self-absorbed, and extremely manipulative." Over the near thirty-year history of the relationship, Dr. Roane gave Patient A samples of prescription medication in return for sexual activity. These medications included not just insulin to treat her diabetes, but also Zoloft to treat her depression. When Patient A began counseling in 2002, her counselor discussed Patient A's relationship with Dr. Roane in an attempt to "break her long history of victimization, " and the last time Patient A saw Dr. Roane was in her apartment in January 2003, when he physically assaulted her.
Patient B's complaint, filed with the Board in May 2004, gave a detailed account of sexual activity in Dr. Roane's office on repeated occasions. Patient B, who also had a complex history that included incarcerations and crack cocaine abuse, first sought treatment from Dr. Roane in May 1982, when she was in her early twenties. In 1988 or 1989, Dr. Roane sexually assaulted her while she was lying on the examination table and after an attending nurse left the room. Patient B continued treatment with Dr. Roane and "[o]n a number of occasions, " Dr. Roane "gave Patient B free prescription medication or money in return for fellatio." Patient B did not report the conduct at the time, but did file a complaint in May 2004 at the urging of a psychiatrist who was treating her at that time.
B. The Summary Suspension Proceeding.
The Board initiated two proceedings in response to the complaints filed by Patient A and Patient B. First, on April 12, 2010, the Board charged Dr. Roane with violating HO §14-404 and voted on May 21, 2010 to suspend his license summarily. The parties appeared before an administrative law judge ("ALJ") to present evidence regarding the charges on June 7, 2010 (the "Suspension Proceeding"), and at that time the Board presented the testimony of Patients A and B, along with that of a licensed certified social worker who had treated Patient A.
Dr. Roane also testified at the hearing (the "Suspension Hearing"), and although his version of events differed from the accounts of the Board's witnesses, he hardly exonerated himself. He admitted to a personal relationship with Patient A, including two sexual encounters. He testified that he treated Patient A in the 1975-76 time period and did not provide any treatment for her after that time. Nevertheless, he admitted writing on her behalf to Pfizer, a pharmaceutical company, in January 2000 to support her request for free antidepressant medication, and admitted that he described Patient A in his letter as someone he "followed in [his] practice for more than 20 years." He testified that his representation to Pfizer was inaccurate, but was meant as "embellishment" designed to ensure that Patient A received the free medication. He contended that he did not believe he had any reason to "be concerned" about having a personal or sexual relationship with Patient A because in his view, she was not his patient. And when asked during the Suspension Hearing about his relationship with Patient A—"And is it your testimony that after that physician/patient relationship was terminated, in your opinion, that there was no problem with having a personal or sexual relationship with her?"—Dr. Roane answered, "Except as far as my marital status." Dr. Roane categorically denied any sexual contact with Patient B.
After hearing and considering the evidence, the ALJ issued a written order that concluded, by a preponderance of the evidence, that Dr. Roane's continued practice of medicine raised a "substantial likelihood of risk of serious harm to the public health, safety, or welfare, " because of the sexual relationships Dr. Roane initiated and encouraged with Patients A and B. The ALJ discussed at length the encounters between Dr. Roane and Patient A underlying his finding that Dr. Roane engaged in sexual misconduct with Patient A. The ALJ disagreed specifically with Dr. Roane's contention that he was not "practicing medicine" when he requested medication on Patient A's behalf from Pfizer. More generally, the ALJ found that the two patients' independent accounts tended to corroborate further one another's allegations and bolstered his determination that their versions of events were more credible than Dr. Roane's. And the ALJ noted that both victims were "vulnerable individuals":
They both were subject to rather easy manipulation. Neither had substantial means for medical care and both needed medication on a regular basis. . . . [N]either patient was known to the other, yet their stories regarding [Dr. Roane's] actions toward them were strikingly similar.
Based on his findings, the ALJ concluded that summary suspension was appropriate and affirmed the Board's decision. Dr. Roane filed exceptions to the ALJ's decision that attacked the length of the Board's investigation before initiating the Suspension Proceeding and challenged the Board's authority to seek summary suspension and revocation simultaneously, but, importantly, did not dispute the ALJ's factual findings. On December 13, 2010, the Board issued a final decision upholding the decision of the ALJ and ordered summary suspension of Dr. Roane's license (the "Suspension Order"). The Department of Health and Mental Hygiene Board of Review affirmed the Suspension Order on April 5, 2011.
On April 20, 2011, Dr. Roane filed a petition for judicial review of the Suspension Order in the Circuit Court for Anne Arundel County. By that time, however, the Board had revoked his license through the proceeding we discuss next and, as part of the revocation, terminated the summary suspension. After a hearing, the circuit court dismissed the petition as moot, then denied Dr. Roane's subsequent Motion to Revise Judgment. Dr. Roane filed a timely appeal.
C. The Revocation Proceeding.
The Board initiated a separate proceeding that sought, based on the same alleged violations of HO § 14-404(a)(3), to revoke Dr. Roane's license altogether (the "Revocation Proceeding"). This proceeding was assigned to a different ALJ, who held an evidentiary hearing on October 25, 2010 (the "Revocation Hearing"). The parties agreed at that time to incorporate all of the testimony and exhibits from the Suspension Hearing rather than reprising the same presentations.
On January 24, 2011, the ALJ issued a proposed decision in which he upheld the charges and recommended that the Board revoke Dr. Roane's license. He specifically disagreed with Dr. Roane's contention that his admission of sexual activity on two occasions with Patient A and the letter to Pfizer were insufficient to justify revocation of his license:
I have found that [Dr. Roane] abused his profession to satisfy his sexual desires. In the process, he shamelessly exploited the vulnerabilities of two young women. The Legislature has given authority to the Board to revoke a physician's license under these circumstances.
Dr. Roane filed exceptions to the Proposed Decision on February 7, 2011. The Board issued a Final Decision and Order (the "Revocation Order") on June 23, 2011, in which it concluded, consistent with its prior finding, that Dr. Roane had violated HO § 14-404 and revoked his license to practice medicine. The Board also directed that the prior Suspension Order, which had issued on May 21, 2010, be terminated as moot.
Dr. Roane petitioned the Circuit Court for Anne Arundel County for judicial review and following a hearing, the court entered an order on March 29, 2012, affirming the Revocation Order (the "Order Affirming Revocation"). The court concluded that Dr. Roane had waived both his argument that the Board's findings were not based on substantial evidence and his argument that the Board acted arbitrarily and capriciously, because he had not raised these arguments at the proper stage of the proceedings—i.e., in the course of raising exceptions to the ALJ's findings in front of the Board itself. On April 12, 2012—fourteen days after the circuit court's entry of its order—Dr. Roane filed a Motion to Alter or Amend and Motion to Revise Judgment (the "Motion to Alter or Amend"). ...