Argued: June 1, 2016
Court for Baltimore City Case No. 24C-14-002519
Barbera, C.J. Greene Adkins McDonald Hotten Rodowsky,
Lawrence F. (Retired, Specially Assigned) Battaglia, Lynne A.
(Retired, Specially Assigned), JJ.
instant case, we address whether Md. Code (1981, 2014 Repl.
Vol., 2015 Cum. Supp.), § 14-410 of the Health
Occupations Article ("HO") bars the admission of a
Board of Physicians' consent order as evidence in a civil
or criminal proceeding. Brenda Smith ("Smith")
filed a workers' compensation claim seeking compensation
benefits from Delaware North Companies and its insurer
(collectively "Delaware North") for a full knee
replacement. At issue was whether the injury Smith sustained
at work caused her to need knee replacement surgery. During a
jury trial in the Circuit Court for Baltimore City, Smith
presented the expert testimony of Dr. Kevin McGovern. To
impeach Dr. McGovern's credibility, Delaware North sought
to admit a consent order that Dr. McGovern entered into with
the Maryland Board of Physicians ("the Board").
Over a timely objection, the trial court admitted into
evidence a portion of that consent order. We conclude it was
legal error to do so. HO § 14-410 serves generally as a
statutory bar to the admission of a Board of Physicians'
consent order into evidence in a civil or criminal action.
AND PROCEDURAL BACKGROUND
September 7, 2012, Smith slipped on the floor in the course
of her employment as a cook at Camden Yards. She landed on
her left knee when she fell. A few weeks after the fall,
Smith sought medical attention from Dr. Thomas Whitten. An
MRI of her left knee revealed that she had torn the posterior
horn of the medial meniscus and that she had
medial compartment arthritis. Smith initially
sought conservative treatment from Dr. Whitten in the form of
cortisone shots. Dr. Whitten also recommended that Smith
undergo an arthroscopic procedure. After Dr. Whitten's
retirement, Smith transferred her care to Dr. Kenneth Tepper.
Dr. Tepper recommended that Smith undergo unicompartmental
knee arthroplasty. Next, Smith visited Dr. Mark Cohen at
Maryland Orthropedics, P.A. on November 11, 2013. Dr.
McGovern, another practitioner at Maryland Orthropedics, P.A.
saw Smith on February 18, 2014. Both Dr. Cohen and Dr.
McGovern recommended Smith undergo a full left knee
January 28, 2014, Smith filed a workers' compensation
claim requesting an authorization for a total left knee
replacement. The Workers' Compensation Commission denied
her claim after it held a hearing on April 4, 2014. Smith
filed a petition for judicial review of the Workers'
Compensation Commission's denial of her claim in the
Circuit Court for Baltimore City and requested a jury trial.
On November 24, 2014, Smith filed a "Motion In
Limine to Exclude Certain Testimony from Kevin McGovern,
M.D." to prevent Delaware North from raising questions
at trial about any professional disciplinary action taken
against Dr. McGovern. Smith also sought to exclude portions of
Dr. McGovern's de bene esse deposition where
defense counsel inquired into the disciplinary charges
against Dr. McGovern. She argued in her motion that HO §
14-410 "expressly prohibits the introduction of such
evidence in any collateral proceeding such as an appeal from
a workers' compensation commission
December 11, 2014, a jury trial was held in the Circuit Court
for Baltimore City to answer the question of whether
Smith's knee replacement surgery was causally related to
the accidental injury she suffered on September 7, 2012.
Prior to jury selection, the trial judge heard the
parties' arguments regarding Smith's "Motion
In Limine to Exclude Certain Testimony from Kevin
McGovern, M.D." Smith argued that the admission of the
consent order would violate HO § 14-410(a). The trial
judge disagreed and stated, "I do agree with [d]efense
counsel that the stating (sic) of the consent order in effect
is a stipulation of the parties that it's okay to be
used." She explained, "it's an exception
to the medical review committee privilege as we're
referring to it."
the trial judge determined that the consent order was
admissible, she provided Smith with an opportunity to argue
whether the admission of the consent order was "more
substantially prejudicial than probative of the issue of
whether Dr. McGovern is telling us facts that are relevant to
Ms. Smith's case." Smith noted that even though Dr.
McGovern was on probation pursuant to the consent order, his
license to practice medicine was still in good standing and
that Dr. McGovern was still qualified to treat patients and
offer expert testimony. Smith then argued that questioning on
the disciplinary action would confuse and mislead the jury
about the merits of the case, which involved the narrow issue
of whether Smith's workplace injury caused her need for
knee replacement surgery. Therefore, Smith contended that the
probative value of the consent order and disciplinary action
was substantially outweighed by their prejudicial effect.
trial judge ruled that
[i]t appears to this [c]ourt that the probative value of
going into the disciplinary action against Dr. McGovern is
outweighed by the prejudicial effect of the possible
confusion of the jury. However, there's no question in my
mind that the question about the status of his license, that
should be asked.
Now, how far that question is allowed to go will depend on
the answers Dr. McGovern gives. If I understand from the
written submissions, Dr. McGovern's license is authorized
only in the case that he obey the terms of the consent order.
the trial judge granted, in part, Smith's "Motion
In Limine to Exclude Certain Testimony from Kevin
McGovern, M.D." and excluded the portions of Dr.
McGovern's de bene esse deposition that
referenced the disciplinary charges against him. She,
however, allowed "the Defense to introduce the consent
order showing that there are restrictions on [Dr.
McGovern's] license." In response, Smith asked that
the admission of the consent order "be limited to the
conclusions of law and the order that sets forth the
conditions in [Dr. McGovern's] probation" rather
than the whole consent order which details the facts of each
disciplinary charge against Dr. McGovern. The trial judge
agreed with Smith and limited the submission of the consent
order to the last six pages, excluding the first seventeen
pages of the order. The last six pages of the consent order
begin with the Board's "Conclusions of Law, "
Based on the foregoing Findings of Fact, the Board concludes
as a matter of law that [Dr. McGovern's] actions and
inactions, as set forth above, constitute a failure to meet
the appropriate standards for the delivery of quality medical
care, in violation of H.O. § 14-404(a)(22); and a
failure to keep adequate medical records, in violation of
H.O. § 14-404(a)(40). The charges under H.O. §
14-404(a)(23), of willfully submitting false statements to
collect fees for which services are not provided, and H.O.
§ 14-404(a)(19), of grossly overutilizing health care
services, are dismissed.
pages of the consent order also set forth the conditions of
Dr. McGovern's two year probation and disclosed
that the consent order "is considered a PUBLIC
DOCUMENT[.]" The page that contains Dr. McGovern's
signature is entitled, "CONSENT" and
I, Kevin McGovern, M.D., acknowledge that I am represented by
counsel and have consulted with counsel before entering into
this Consent Order. By this Consent and for the purpose of
resolving the issues raised by the Board, I agree and accept
to be bound by the foregoing Consent Order and its
I acknowledge the validity of this Consent Order as if
entered into after the conclusion of a formal evidentiary
hearing in which I would have had the right to counsel, to
confront witnesses, to give testimony, to call witnesses on
my own behalf, and to all other substantive and procedural
protections provided by law. I agree to forego my opportunity
to challenge these allegations. I acknowledge the legal
authority and jurisdiction of the Board to initiate these
proceedings and to issue and enforce this Consent Order. I
affirm that I am waiving my right to appeal any adverse
ruling of the Board that I might have filed after any such
I sign this Consent Order after having an opportunity to
consult with counsel, voluntarily and without reservation,
and I fully understand and comprehend the language, meaning
and terms of the Consent Order.
the court addressed the parties' motions, a jury was
selected and trial began. Smith was the first witness to
testify. She testified on her own behalf as to the injuries
she suffered and the recommendations of her doctors. Next,
Smith presented expert witness testimony by playing a
redacted version of Dr. McGovern's video deposition for
the jury. Dr. McGovern testified as follows:
[Plaintiff's Counsel]: Now, you said you reviewed Dr.
Cohen's notes prior to your examination of Ms. Smith; is
[Dr. McGovern]: Yes.
[Plaintiff's Counsel]: Did you also look at his
impression and his diagnosis of what her injury was?
[Dr. McGovern]: Of course.
[Plaintiff's Counsel]: And what was his diagnosis of her
[Dr. McGovern]: Aggravation of pre-existing medial
compartment arthritis of her left knee related to the injury
of September 7th, 2012.
[Plaintiff's Counsel]: And what were the - what was shown
by the x-rays?
[Dr. McGovern]: That she had degenerative arthritis, severe
in her left knee and moderate in her right knee.
[Plaintiff's Counsel]: And what were the results of the -
when you reviewed the MRI, what were the results of Ms.
[Dr. McGovern]: Again, it showed degenerative changes and it
showed a tear of her medial meniscus in her left knee . . . .
The menisci, the medial and lateral meniscus, the medial is
on the inner part of the joint, the lateral is on the outer
part of the joint. The medial part is the part of your knee
that would touch your other knee if you put your knees
together . . . . In this case[, ] there's a tear in the
back portion of the meniscus, the posterior horn of the
meniscus, which is the most common place for menisci to tear
when they tear. The medial is the most common place for it to
tear. The lateral meniscus on the outside of the knee
doesn't tear nearly as frequently as does the one on the
inner aspect of the knee. And most meniscal tears are caused
by some sort of twisting injury to the knee.
[Plaintiff's Counsel]: And Ms. Brenda Smith, she would -
had both of those positive showings on the MRI as far as her
left knee is concerned?
[Dr. McGovern]: It showed that she had a tear of the
posterior horn of her medial meniscus as well as arthritis in
[Plaintiff's Counsel]: And as far as the arthritis is
concerned, the MRI classified that as - how did the MRI
classify that arthritis in the findings? Would it be correct
to say that they said mild degenerative arthritic changes?
[Dr. McGovern]: Well, it says in the lateral meniscus -
meniscus it shows mild degenerative change without definite
tear. And then in the medial meniscus it shows mild
degeneration of the meniscus. That is a little bit different
than the arthritis itself. Again that's what they're
talking about in the menisci being mildly degenerated. We
know from the x-ray that she has fairly significant arthritis
in her knee.
[Plaintiff's Counsel]: Can someone have arthritis and not
need a knee replacement?
[Dr. McGovern]: Oh absolutely. You're looking at one
right now, I have arthritis in one of my knees and I
don't need a knee replacement.
[Plaintiff's Counsel]: And can arthritis in someone's
knee, can that be aggravated by a trauma?
[Dr. McGovern]: Absolutely.
[Plaintiff's Counsel]: And can you just explain to the
ladies and gentlemen of the jury how a trauma could aggravate
[Dr. McGovern]: Well, in a simplistic way, it's possible
that that could just be the straw that breaks the camel's
back. At some point something happens that makes a joint
become painful and symptomatic. In this particular case the
mostly (sic) likely scenario is that she had arthritis in her
knee. She had mild degeneration of her menisci, but when she
had the fall she ended up tearing her medial meniscus [as]
the result of the fall. That tear then aggravates and
inflames the joint and causes the knee to become symptomatic,
the arthritis to become symptomatic. In a young healthy
person with no arthritis you could go in there with the
arthroscope and repair or remove the damaged meniscus, and
the symptoms would go away. But unfortunately once the knee
is arthritic, such as this one, then taking care of the
meniscus, fixing it or removing it doesn't solve the
problem. Because the arthritis, once it becomes inflamed and
symptomatic, stays symptomatic. So she would need something
more significant than an arthroscopy for a torn meniscus, she
would need a knee replacement to make her symptoms go away.
[Plaintiff's Counsel]: And what is your diagnosis as to
after, you know, reviewing the history, reviewing the MRIs,
looking at your notes, Dr. Cohen's notes, the x-rays,
what is your diagnosis of what the cause of her current
condition is and what's the cause of the need for the
left knee replacement?
[Dr. McGovern]: Well, it's my belief that she had
arthritis in her knee that wasn't symptomatic before this
injury. That this injury caused her to tear her medial
meniscus which caused an aggravation of her arthritis and has
caused her to remain symptomatic as a result of that. The
only solution for her problem as a result of this injury of
September 7th, 2012 now is to have the knee replacement.
Nothing less than that will work. She's already had
conservative treatment. She's had Cortisone shots and gel
injections into her knee of lubricants, called
viscosupplementation, none of which have solved her problem
and none of which probably would. And at this point a knee
replacement is the only thing that would resolve her symptoms
she now has as a result of her injury of September 2012.
[Plaintiff's Counsel]: And that opinion is - diagnosis is
based within a reasonable degree of medical probability?
[Dr. McGovern]: Yes or I would haven't (sic) said it.
[Plaintiff's Counsel]: Did you have the opportunity to
review a letter from Dr. Cohen dated January 21st, 2014?
[Dr. McGovern]: Yes.
[Plaintiff's Counsel]: In that letter did Dr. Cohen
detail his opinion of Ms. Smith's left knee condition in
[Dr. McGovern]: It did.
[Plaintiff's Counsel]: And what was his opinion?
[Dr. McGovern]: The same as mine.
[Plaintiff's Counsel]: Now, Ms. Smith was also diagnosed
or I should say seen by a Dr. Becker; are you familiar with
[Dr. McGovern]: I know who Dr. Becker is, yes.
[Plaintiff's Counsel]: And have you had a chance to look
at his report and his addendum to his report?
[Dr. McGovern]: I have.
[Plaintiff's Counsel]: And what is your understanding of
Dr. Becker's role in this case?
[Dr. McGovern]: He performed an independent medical
evaluation for the defense.
[Plaintiff's Counsel]: And in reviewing his report is
there anything significant that you disagree with?
[Plaintiff's Counsel]: I think we disagree on the fact
that she needs a knee replacement as a result of her injury.
We agree that she has arthritis that was aggravated by the
cross-examination, defense counsel asked, "can you state
to a reasonable degree of professional certainty whether or
not Ms. Smith would have needed a knee replacement even if