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Maryland Board of Physicians v. Geier

Court of Appeals of Maryland

January 23, 2017

MARYLAND BOARD OF PHYSICIANS, et al.
v.
MARK R. GEIER, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNE GEIER, et al.

          Argued: September 9, 2016

         Circuit Court for Montgomery County Case No. 371761V

          Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Battaglia, Lynne A. (Senior Judge, Specially Assigned) JJ.

          OPINION

          Hotten, J.

         We consider whether a party asserting the absolute quasi-judicial privilege and the deliberative process (executive) privilege may properly appeal three orders from the circuit court prior to a final judgment, and whether those privileges prevent the admissibility of certain discovery. Respondents, Dr. Mark Geier ("Dr. Geier"), David Geier ("Mr. Geier") and Anne Geier ("Ms. Geier"), [1] filed a complaint against Petitioners[2]"), in the Circuit Court for Montgomery County, alleging that Petitioners invaded their privacy by publicizing their private medical information in a cease and desist order that was issued during disciplinary proceedings brought by Petitioners against Dr. Geier and Mr. Geier.

         During discovery, the circuit court entered three separate orders that: (1) granted Respondents' sixth motion for sanctions against Petitioners regarding the disclosure of audiotapes of Petitioners' deliberations; (2) denied Petitioners' motion for reconsideration of a default order on liability for a series of discovery failures; and (3) denied Petitioners' motion for a protective order from Respondents' sixth motion to compel documents, which required Petitioners to disclose their personal financial information to Respondents. Petitioners appealed all three interlocutory orders, and this Court granted certiorari.

         For the reasons that follow, we grant Respondents' motion to dismiss as it relates to the orders denying Petitioners' motions for reconsideration and for a protective order; deny Respondents' motion to dismiss as it relates to the order granting Respondents' sixth motion for sanctions; reverse and vacate the order granting Respondents' sixth motion for sanctions; and remand the case to the circuit court for further proceedings consistent with this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Board's Administrative Proceedings Against Respondents Mark R. Geier and David Geier

         a. Mark Geier

         On October 3, 2006, the Board notified Dr. Geier that it had received a complaint against him regarding his use of the drug Lupron[3] to treat autistic children. The complaint alleged that Dr. Geier was: (1) practicing outside of the scope of his expertise and the prevailing standard of care for autism; (2) experimenting on children without a rational scientific theory or the supervision of a qualified review board; and (3) failing to provide appropriate informed consent regarding the potential side effects of Lupron and similar drugs.

         On April 27, 2011, the Board summarily suspended Dr. Geier's right to practice medicine, asserting that the "public health, safety or welfare imperatively required emergency action" due to certain medical practices engaged in by Dr. Geier.[4] On May 16, 2011, the Board formally charged Dr. Geier with violations of the Medical Practice Act, Md. Code (Repl. Vol. 2014), §§14-401 et seq. of the Health Occupations Article ("Health Occ.").

         On September 15, 2011 the Board issued amended charges against Dr. Geier for prescribing medicine to family members while his license was suspended. After amending its complaint, the Board charged Dr. Geier with: (1) unprofessional conduct in the practice of medicine; (2) willfully making or filing a false report or record in the practice of medicine; (3) willfully failing to file or record any medical record as required under law; (4) practicing medicine with an unauthorized person or aiding an unauthorized person in the practice of medicine; (5) gross overutilization of health care services; (6) failing to meet standards, as determined by peer review, for the delivery of quality medical care; and (7) failing to keep adequate medical records.

         On September 26, 2011, after six days of hearings, [5] an Administrative Law Judge ("ALJ") issued a proposed decision upholding the summary suspension of Dr. Geier's license. On March 13, 2012, following an additional five days of hearings, the ALJ issued a 126-page proposed decision, recommending that the charges against Dr. Geier be upheld, [6] and that his license be revoked.

         Dr. Geier took exception to the ALJ's findings, but on August 22, 2012, the Board issued a final decision revoking his license. Dr. Geier petitioned for judicial review, and the Circuit Court for Montgomery County affirmed the Board's revocation on April 9, 2014. Dr. Geier moved to alter or amend the court's ruling, but the motion was denied. Dr. Geier then noted an appeal to the Court of Special Appeals, and that Court, in a reported opinion, affirmed the Board's decision. See Geier v. Md. State Bd. Of Physicians, 223 Md.App. 404, 116 A.3d 1026 (2015).

         b. David Geier

         On May 16, 2011, the Board also charged Dr. Geier's son, Mr. Geier, for practicing medicine without a license in violation of Health Occ. §14-601.[7] On March 7, 2012, an ALJ recommended that the charges against Mr. Geier be dismissed. On July 30, 2012, however, the Board rejected the ALJ's recommendation and many of the judge's findings, concluding that Mr. Geier had practiced medicine without a license because he diagnosed a patient, determined which blood tests the patient required, and ordered those tests. The Board imposed a $10, 000 fine.

         Mr. Geier petitioned the Circuit Court for Montgomery County for judicial review of the Board's findings, and the circuit court affirmed the Board's decision on April 25, 2014. Mr. Geier then appealed to the Court of Special Appeals, and that Court, in an unreported opinion dated July 31, 2015, also affirmed the Board.

         c. The Disclosure of the Respondents Personal Medical Information

         On January 25, 2012, during the pendency of both disciplinary proceedings, the Board issued a cease and desist order against Dr. Geier, accusing him of practicing medicine while his license had been summarily suspended. The order, posted to the Board's website and viewable by the public, specifically alleged that Dr. Geier had written prescriptions for all three Respondents. The order also detailed the Respondents' confidential medical information, identified the specific medications that Dr. Geier allegedly prescribed to each person, and described the medical conditions that each medication treated.[8]

         Petitioners promptly removed the confidential information from the cease and desist order in response to Respondents' protest. Petitioners also issued an amended cease and desist order that deleted the references to the patients and the medications that Dr. Geier allegedly prescribed for them. In the interim between the initial publication and the Petitioners' remedial actions, other persons viewed and commented about the Respondents' confidential medical information, and those comments are still accessible on the internet.

         Ultimately, an ALJ rejected the charge that Dr. Geier had written any prescriptions in violation of the summary suspension order issued by Petitioners.

         II. Respondents' Civil Action Against Petitioners

         a. The Complaint

         On December 12, 2012, while Dr. Geier and Mr. Geier were pursuing judicial review of the Board's adverse rulings, Respondents filed a three-count complaint in the Circuit Court for Montgomery County against Petitioners. The complaint alleged that by publicizing the January 25th cease and desist order that contained the Respondents' confidential medical information, Petitioners deprived them of their constitutional right to privacy; violated the Maryland Confidentiality of Medical Records Act, Md. Code (1982, 2009 Repl. Vol.), §§4-301 et seq. of the Health General Article; and invaded their privacy by giving unreasonable publicity to private facts. The complaint also alleged that Petitioners "acted with ill will and with the intent to injure [Respondents] by exposing Dr. Geier's personal medical information and that of his wife and son." Respondents requested compensatory damages, as well as three million dollars in punitive damages.

         Petitioners moved to dismiss the complaint for failure to state a claim upon which relief could be granted, asserting they had absolute quasi-judicial immunity from suit under Ostrzenski v. Siegel, 177 F.3d 245 (4th Cir. 1999). Following a hearing on July 10, 2013, the circuit court dismissed the Confidentiality of Medical Records Act claim, finding that the statute did not create a private cause of action. The circuit court allowed the constitutional and invasion of privacy claims to proceed, finding that the record was inadequate to evaluate the applicability of any immunities at such an early stage of the proceedings.

         b. Discovery

         Following the circuit court's ruling that allowed two of Respondents' claims to proceed, Respondents sought extensive discovery, attempting to uncover evidence demonstrating Petitioners acted out of animosity in publishing the cease and desist letter. Respondents sought information regarding the specific circumstances immediately surrounding the Petitioners' disclosure of their confidential medical information, as well as documents and testimony that revealed Petitioners' decisional process in the administrative proceedings against them. Respondents also sought communications between Petitioners and their counsel that related to these proceedings. Following an unsatisfactory response to discovery requests, Respondents filed multiple motions to compel and motions for discovery sanctions against Petitioners between the months of November 2013 and February 2016, which led to numerous hearings in the circuit court, and concurrent interlocutory appeals by Petitioners.

         Of import to the issues before this Court are the events that occurred during and after Petitioners' filed their first interlocutory appeal from the circuit court's June 17, 2014 discovery order.[9] On August 15, 2014, [10] Respondents filed their fifth motion for sanctions seeking a default judgment as to liability, alleging primarily that Petitioners failed to produce an adequately prepared organizational representative noted as a prepared designee for a 167-topic deposition. Respondents subsequently requested a hearing regarding the fifth motion for sanctions. Also on August 15th, the Court of Special Appeals issued an order staying all discovery in the circuit court pending the outcome of the first interlocutory appeal.

         In opposition to Respondents' fifth motion for sanctions, Petitioners alleged that most of the deposition topics covered information in Respondents' possession or were not discoverable because they involved issues pending on appeal. Petitioners also noted they appealed the circuit court's June 17th discovery order denying Petitioners assertions of various privileges, and that Petitioners "should not be sanctioned for declining to allow these protections and privileges to be eviscerated in other discovery proceedings" and allowing Respondents to "frustrate the appellate court's ability to provide meaningful relief in its resolution" of the issues before it.

         Following a hearing on November 13, 2014, the circuit court granted Respondents' fifth motion for sanctions. On December 16, 2014, the circuit court issued a memorandum opinion that detailed Petitioners' culpable conduct during discovery, and thereafter, entered a default judgment of liability against Petitioners. The circuit court noted that a trial on damages would be scheduled after Petitioners' first interlocutory appeal had been resolved.

         On December 24, 2014, Petitioners noted a second interlocutory appeal based on the circuit court's default judgment, which the Court of Special Appeals consolidated with Petitioners' initial appeal filed on June 26. See Md. Bd. Of Physicians v. Geier, 225 Md.App. 114, 123 A.3d 601 (2015).

         c. The Court of Special Appeals' Decision

         The Court of Special Appeals first held that neither order appealed by Petitioners constituted a final judgment. The Court concluded that the collateral order doctrine applied to the June 17th discovery order, allowing the Court to hear Petitioners' claims regarding that discovery order. See Geier, 225 Md.App. at 129-38; 123 A.3d at 610-16. The collateral order doctrine did not apply to the December 16th order of default on liability, corresponding to Respondents' fifth motion for sanctions, because the Court concluded that the issues that order addressed were not "collateral" to the merits of the case. Id. at 139-43, 123 A.3d at 616-19.

         In considering the merits of Petitioners' claims regarding the June 17th order, the Court held that under Health Occ. §14-410[11] Dr. John L. Young's ("Dr. Young")[12]disciplinary files were not discoverable by Respondents. The Court noted that, under Health Occ. §14-410, both the Board and Dr. Young had to expressly consent to the discoverability of Dr. Young's proceedings as parties to the action. Because the Board objected to releasing Dr. Young's proceedings, they were not discoverable by Respondents in the present action. Id. at 144-47, 123 A.3d 619-21. The Court also concluded that the circuit court erred in rejecting Petitioners' claim of executive privilege, because it failed to expressly balance Petitioners' need for confidentiality against Respondents' need for disclosure, and the impact of nondisclosure on a fair administration of justice. Id. at 147-52; 123 A.3d 621-24.

         Finally, the Court considered the merits of Petitioners' claims regarding the allegedly privileged communications between the Board and Joshua Shafer, an investigator for the Board. Although the Court noted that generally an appellate court does not have jurisdiction to consider an interlocutory appeal from a discovery ruling that rejects a claim of attorney-client privilege, the Court still considered the merits because it formed a part of a ruling that the Court had jurisdiction to review. Id. at 153, 123 A.3d at 624 (citing Kurstin v. Bromberg Rosenthal LLP, 420 Md. 466, 480, 24 A.3d 88, 96 (2011)). The Court noted that the Guidelines for Administrative Adjudicatory Proceedings ("Guidelines") have no effect on the confidentiality of communications between Board employees, like Shaffer, and the Board's attorneys. Id. at 154, 123 A.3d at 625. The Court concluded that the circuit court erred in rejecting Petitioners' claim of privilege on the ground that the Guidelines rendered Shafer a "stranger" to the attorney-client relationship between the Board and its attorneys. Id. at 154, 123 A.3d at 625.

         The Court remanded the case back to the Circuit Court for Montgomery County for further proceedings consistent with its opinion.

         d. The Post-Remand Proceeding in the Circuit Court

         On remand, Respondents sought a hearing on their sixth motion for sanctions filed on August 8, 2014, [13] involving Petitioners' audio recordings on internal deliberations regarding Dr. Geier's and Mr. Geier's disciplinary proceedings.

         On November 2, 2015, Respondents served their sixth request for production of documents, seeking a variety of financial information from Petitioners, which prompted Petitioners to pursue a protective order, based in substantial part, on their claim of absolute quasi-judicial immunity from suit.

         On December 28, 2015, Petitioners also filed a motion for reconsideration of the default liability order and for summary judgment in Petitioners' favor. Petitioners asserted that in the order of default on liability, the circuit court found the Board, but not the individual Petitioners, had engaged in discovery violations. Petitioners also argued that the Court of Special Appeals narrowed the scope of what discovery should be permitted. Respondents disagreed, and on February 10, 2016, filed a seventh motion for sanctions alleging that Petitioners' motion for a protective order raising the immunity defense was in bad faith.

         On March 24, 2016, the circuit court held a hearing on the parties' respective motions, and subsequently denied Petitioners' motion for summary judgment, motion for reconsideration on the default judgment of liability, and motion for a protective order from Respondents' sixth request for documents. The circuit court found that the General Assembly had enacted a detailed statutory scheme addressing Petitioners' immunity from suit in 1976 that has not been repealed.[14] The circuit court concluded that because the statutory scheme remains in effect, Petitioners' claim of a common law absolute quasi- judicial immunity claim did not apply. On that basis, the circuit court denied Petitioners' motion for summary judgment.

         The circuit court also denied Petitioners' motion for reconsideration because the circuit court found that, even under the Court of Special Appeals' mandate, Petitioners failed to provide specific evidence that their deponent was responsive, sufficient for the circuit court to reverse its order. The circuit court also noted that, even after adhering to the Court of Special Appeals' mandate, Petitioners' conduct remained "abysmal, abominable, [and] sanctionable."

         Finally, the circuit court granted Respondents' sixth motion for sanctions. The circuit court found that Petitioners did not assert any privilege in their initial responses to Respondents' requests for the audiotapes, and the tapes were not included on Petitioners' privilege logs, so the assertion of privilege was waived. The circuit court also ordered that all of Respondents' outstanding discovery requests were due by April 22, 2016.

         On April 1, 2016, Petitioners noted an interlocutory appeal to the Court of Special Appeals, seeking review of the circuit court's March 24th orders denying their motions for reconsideration and request for a protective order, and granting Respondents' sixth motion for sanctions. This Court, sua sponte, granted ...


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