MARYLAND BOARD OF PHYSICIANS, et al.
MARK R. GEIER, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNE GEIER, et al.
Argued: September 9, 2016
Court for Montgomery County Case No. 371761V
Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty,
Battaglia, Lynne A. (Senior Judge, Specially Assigned) JJ.
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"),  filed a complaint against
Petitioners"), 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.
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.
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.
AND PROCEDURAL BACKGROUND
Board's Administrative Proceedings Against Respondents
Mark R. Geier and David Geier
October 3, 2006, the Board notified Dr. Geier that it had
received a complaint against him regarding his use of the
drug Lupron 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
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. 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
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.
September 26, 2011, after six days of hearings,
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,
that his license be revoked.
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).
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. 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.
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.
The Disclosure of the Respondents Personal Medical
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.
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
an ALJ rejected the charge that Dr. Geier had written any
prescriptions in violation of the summary suspension order
issued by Petitioners.
Respondents' Civil Action Against Petitioners
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.
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.
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
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. On August 15, 2014,  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.
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
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.
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
The Court of Special Appeals' Decision
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.
considering the merits of Petitioners' claims regarding
the June 17th order, the Court held that under Health Occ.
§14-410 Dr. John L. Young's ("Dr.
Young")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.
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.
Court remanded the case back to the Circuit Court for
Montgomery County for further proceedings consistent with its
The Post-Remand Proceeding in the Circuit Court
remand, Respondents sought a hearing on their sixth motion
for sanctions filed on August 8, 2014,  involving
Petitioners' audio recordings on internal deliberations
regarding Dr. Geier's and Mr. Geier's disciplinary
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.
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
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. 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
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,
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.
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 ...