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Maryland Board of Physicians v. Geier

Court of Special Appeals of Maryland

June 26, 2019


          Circuit Court for Montgomery County Case No. 371761V

          Arthur, Leahy, Reed, JJ. [*]


          ARTHUR, J.


         Statutory and Regulatory Background ........................................................................... 1

A. The Maryland State Board of Physicians and Board Personnel ......................... 2
B. General Procedures for the Board's Medical Disciplinary Proceedings ............ 5

         The Administrative Proceedings ...................................................................................... 7

A. The Initial Medical Disciplinary Proceedings Against the Geiers ..................... 7
B. The Cease-and-Desist Order Dated January 25, 2012 ........................................ 9
C. The Amended Cease-and-Desist Order Dated February 22, 2012 ................... 10
D. Outcome of the Medical Disciplinary Proceedings .......................................... 12

         The Proceedings in the Circuit Court ............................................................................ 14

A. The Geiers' Action Against Board Personnel and the Board ........................... 14
B. Denial of Motion to Dismiss on the Ground of Absolute Immunity ................ 16
C. Grant of Motions to Compel Discovery and for Discovery Sanctions ............. 18
D. The First Interlocutory Appellate Decision on Discovery Matters .................. 20
E. Rejection of Absolute Immunity and Other Rulings on Remand .................... 21
F. The Second Interlocutory Appellate Decision on Discovery Matters .............. 23
G. Remaining Pretrial Rulings .............................................................................. 24
H. Bench Trial on Damages .................................................................................. 26
I. Opinion Awarding Compensatory and Punitive Damages .................................. 28
J. Award of Attorneys' Fees and Entry of Final Judgment ..................................... 32

         Scope of Appellate Review .............................................................................................. 34

         Questions Presented ........................................................................................................ 38

         Discussion ......................................................................................................................... 40

I. Liability of the State Board of Physicians Under 42 U.S.C. § 1983 ....................... 40
II. Claim Against Board Personnel Under 42 U.S.C. § 1983 ................................... 44
A. Absolute Judicial and Prosecutorial Immunity in § 1983 Actions ................... 44
B. Absolute Immunity in the Context of Administrative Proceedings ................. 47
C. Absolute Immunity in Relation to Medical Disciplinary Proceedings ............. 50
D. Absolute Immunity for Medical Disciplinary Proceedings in Maryland ......... 53
E. Absolute Immunity for the Issuance of a Cease-and-Desist Order .................. 57
F. Absolute Immunity of Others Participating in the Board's Decision .............. 63
III. Maryland Tort Claim Against Board Personnel and the Board ........................... 65
A. Absolute Judicial (and Quasi-Judicial) Privilege Under Maryland Law ......... 65
B. Absolute Immunity for Government Officials Under Maryland Law ............. 71
C. Qualified Immunity for Board Personnel Under Maryland Statutes ................ 82
IV. Absolute Immunity in the Procedural Context of this Case ................................ 91
A. Denials of Motion to Dismiss and Motion for Summary Judgment ................ 91
B. Refusal to Consider Absolute Immunity After Default as to Liability ............ 97

         Conclusion ...................................................................................................................... 108

         In 2012, the Maryland Board of Physicians issued a public cease-and-desist order against Mark Geier, M.D. The text of the order included information about medications prescribed to Dr. Geier, his wife, and his son. The Geiers filed suit in the Circuit Court for Montgomery County, seeking to recover damages from 25 persons who were alleged to have participated in the drafting or approval of the order and from the Board itself. The court rejected the defendants' assertions that they were entitled to absolute immunity with respect to their functions in the administrative proceedings.

         The defendants managed to narrow the discovery of some matters by prevailing in two interlocutory appeals: Maryland Board of Physicians v. Geier ("Geier I"), 225 Md.App. 114 (2015), and Maryland Board of Physicians v. Geier ("Geier II"), 451 Md. 526 (2017). Ultimately, as a sanction for the Board's discovery failures, the circuit court ordered a default as to the liability of all defendants. After a bench trial on damages, the court awarded a total of $1.25 million in compensatory damages and a total of $1.25 million in punitive damages. The court further ordered the defendants to pay nearly $2.4 million in attorneys' fees. All defendants appealed from the final judgment.

         Foremost in a litany of challenges, the defendants contend that they are entitled to absolute immunity as to all claims. For the reasons discussed in this opinion, we conclude that their contention is correct. The judgment shall be reversed.

         Statutory and Regulatory Background

         The defendants in this case are appealing from a civil judgment for damages based on actions that occurred in the context of medical disciplinary proceedings. To understand the issues presented, it is necessary to begin with some understanding of the statutes and regulations that governed those proceedings.

         A. The Maryland State Board of Physicians and Board Personnel

         In Maryland, health occupations are "regulated and controlled" to "protect the health, safety, and welfare of the public." Md. Code (1981, 2014 Repl. Vol., 2018 Supp.), § 1-102(a) of the Health Occupations Article. The General Assembly has created independent health occupations boards, the majority of whose members are licensed to practice in the regulated occupation, "with the intent that a peer group is best qualified to regulate, control, and otherwise discipline in a fair and unbiased manner the licensees . . . who practice in the State." Id. § 1-102(b). The State Board of Physicians is one such board within the Department of Health (id. § 14-201), one of the principal departments of the executive branch of the State government. See Md. Code (1984, 2014 Repl. Vol., 2018 Supp.), § 8-201(b)(8) of the State Government Article.

         The Board is responsible for administering the Maryland Medical Practice Act, codified at Title 14 of the Health Occupations Article. Many of the Board's proceedings are governed by the Contested Cases subtitle of the Administrative Procedure Act: Subtitle 2 of Title 10 of the State Government Article. Regulations for the Board's disciplinary and licensing matters are codified at Title 10, Subtitle 32, Chapter 2, of the Code of Maryland Regulations. Because the underlying events occurred in 2011 and 2012, our analysis concerns the provisions in effect at that time. Unless otherwise specified, subsequent citations to "HO" refer to the 2009 Replacement Volume and 2011 Supplement of the Health Occupations Article; citations to "SG" refer to the 2009 Replacement Volume and 2011 Supplement of the State Government Article; and citations to "COMAR" refer to the 2011 version of the Code of Maryland Regulations.[1]

         Under the Medical Practice Act, any person who practices medicine in Maryland must be licensed by the State Board of Physicians. See HO §§ 14-301, 14-601. The Act expressly empowered the Board to adopt rules and regulations to carry out the provisions of the Act (HO § 14-205(a)(1)(i)(1)); to investigate alleged violations of the Act (HO § 14-205(a)(2)); to reprimand a licensee, place any licensee on probation, or suspend or revoke a license upon a determination that the licensee engaged in conduct prohibited by the Act (HO § 14-404(a)); to impose fines instead of or in addition to other sanctions (HO § 14-405.1(a)); to issue a cease-and-desist order or obtain injunctive relief for practicing medicine without a license (HO § 14-206(e)); and to levy fines for practicing medicine without a license (HO § 14-606(a)(4)(ii)).

         Before 2013, the Board consisted of 21 members appointed by the Governor with the advice of the Secretary of the Department[2] and with the advice and consent of the Senate. HO § 14-202(a)(1). Those members included: 13 practicing licensed physicians, including one doctor of osteopathy and one representative of an academic medical institution; one representative of the Department; one certified physician assistant; five "consumer members"; and one "public member knowledgeable in risk management or quality assurance matters[.]" HO § 14-202(a)(2)(i)-(vii). The "consumer" and "public" members are persons who have never trained to become a physician and who maintain limited personal and financial ties to the field of medicine. See HO § 14-202(b). Members serve four-year terms (HO § 14-202(i)), during which they may be removed for cause (see HO § 14-202(k)). The Governor appoints one chair of the Board, who serves a two-year term. HO § 14-203(a).

         Board members are entitled to compensation in accordance with the State budget. HO § 14-204(c). In practice, however, because most members are practicing physicians, they make limited time commitments to the Board's activities, for which they receive modest compensation. According to a notice soliciting nominations to fill vacancies in 2012, Board members attend one full-day meeting each month (along with their service on one or more committees), and for their attendance they receive complimentary lunch, travel reimbursement, and a $250 per diem (or a $300 per diem for the chair).[3]

         To assist the Board with its many duties, the Secretary employs a full-time staff headed by an executive director. See HO § 14-204(d). Assistant attorneys general, investigators, and hearing officers assist with "the investigation, development, and prosecution of cases referred to the Board[.]" HO § 14-204(e). Attorneys assigned to prosecute administrative charges are known as administrative prosecutors. COMAR Attorneys assigned for the purpose of giving advice on legal matters before the Board are known as Board counsel. COMAR[4]

         B. General Procedures for the Board's Medical Disciplinary Proceedings

         When the Board receives an allegation of grounds for disciplinary action, the Board's staff undertakes an investigation. HO § 14-401(a); COMAR The Board investigates and adjudicates allegations of the unlicensed practice of medicine under the same process that it uses for disciplinary actions against licensed physicians. See COMAR In connection with an investigation, the Board may issue subpoenas under the authorization of one of the Board's officers or directors. HO §§ 14-206(a), 14-401(i). If the allegations concern the failure to meet the appropriate standard of care, the Board must refer the matter to the Medical and Chirurgical Faculty of Maryland, a non-profit organization, for peer review by physicians in the relevant medical specialty. HO § 14-401(c)(2); COMAR

         Based on its review of investigation reports, the Board may "[t]ake any appropriate and immediate action" (HO § 14-401(c)(1)(ii)), such as issuing a cease-and-desist order or issuing formal charges for violation of the Medical Practice Act. See COMAR After service of charges (COMAR, the respondent may request an evidentiary hearing conducted by an administrative law judge from the Office of Administrative Hearings. HO § 14-405(b)(1); COMAR The respondent has the right to be represented by counsel at the hearing (HO § 14-405(c)) and at any other stage in the proceedings (COMAR Each party is entitled to call witnesses, offer evidence, cross-examine witnesses, and make arguments. SG § 10-213(f); COMAR

         Following the hearing, the administrative law judge refers proposed findings of fact, proposed conclusions of law, and any proposed disposition to the Board. HO § 14-405(e); COMAR If either party files exceptions, the Board holds an exceptions hearing before it issues its own findings of fact, conclusions of law, and disposition. COMAR The Board's final decision is subject to judicial review in the circuit court. See HO § 14-408(b); COMAR The circuit court's judgment is subject to appellate review. See SG § 10-223(b).

         Ordinarily, the Board must give notice and the opportunity for a hearing in accordance with the Administrative Procedure Act before it suspends or revokes a physician's license. HO § 14-405(a); see SG § 10-226(c)(1). The Board has limited authority to "order summarily the suspension of a license" as an "emergency action," and then it must provide notice and the opportunity for a hearing "promptly" thereafter. SG § 10-226(c)(2); see COMAR After being suspended summarily, the licensee may demand a full evidentiary hearing. COMAR

         This regulatory scheme includes provisions to maintain confidentiality for the Board's proceedings, while also ensuring public access to information about the licensing and discipline of physicians. "Except as otherwise expressly provided" in the Act, "the Board or any of its investigatory bodies may not disclose any information contained in a record" of its proceedings. HO § 14-411(b); see also COMAR ("[e]xcept for formal charging documents, notices of intent to deny [licensure], or as otherwise provided by law, the proceedings of the Board are confidential"). Upon a request under the Public Information Act, a custodian of records must permit inspection of "any orders and findings that result from formal disciplinary actions" against a licensee. SG § 10-617(h)(2)(vi). Furthermore, the Board must "create and maintain a public individual profile on each licensee" that must include a "description of any disciplinary action taken by the Board against the licensee within the most recent 10-year period that includes a copy of the public order[.]" HO § 14-411.1(b)(1). The Board is required to "maintain a website that serves as a single point of entry where all physician profile information is available to the public on the Internet[.]" HO § 14-411.1(d)(2).

         The Administrative Proceedings

         A. The Initial Medical Disciplinary Proceedings Against the Geiers

         Dr. Mark Geier first obtained his license to practice medicine in Maryland in 1979. For many years, he operated a medical practice in Rockville known as Genetic Centers of America, which offered treatment to children with autism spectrum disorder. His son David Geier, who is not a physician, but who has a bachelor's degree in biology, worked in a subordinate role at the medical practice. Dr. Geier's wife, Anne Geier, was generally not involved in the medical practice, except that she served on a review board established to oversee Dr. Geier's research.

         Together, Dr. Geier and David Geier promoted a theory that thimerosal, a mercury-based compound used as a preservative in some vaccines, can cause autism in genetically susceptible children. See generally Blackwell v. Wyeth, 408 Md. 575, 609-10 (2009) (listing articles written by Mark R. Geier & David A. Geier).[5] Based on that theory, Dr. Geier developed an experimental treatment protocol for autistic children, in which he administered the drug Lupron to suppress hormone production. For some patients, he used chelation therapy, a treatment that removes heavy metals from the body.

         As early as 2006, the Board began investigating a series of complaints related to Dr. Geier's medical practice. The Board eventually referred several patient records for physician peer review. On April 27, 2011, the Board summarily suspended Dr. Geier's medical license. The suspension order accused him of "endanger[ing] autistic children and exploit[ing] their parents by administering a treatment protocol that has a known substantial risk of serious harm and which is neither consistent with evidence-based medicine nor generally accepted in the relevant scientific community."

         Promptly thereafter, the Board issued formal charges under the Medical Practice Act, accusing Dr. Geier of violating various ethical and professional standards in the use of his treatment protocol. At the same time, the Board pursued separate charges against David Geier, alleging that he engaged in the unlicensed practice of medicine by diagnosing and treating a patient at Dr. Geier's medical practice.

         B. The Cease-and-Desist Order Dated January 25, 2012

         While these charges were pending, a representative from a pharmacy-benefits management company informed the Board that someone from Dr. Geier's medical practice had authorized prescription refills after the suspension of Dr. Geier's license. The Board notified Dr. Geier of the new complaint, and he denied writing any prescriptions in Maryland during his suspension. Based on pharmacy records, the Board's staff concluded that Dr. Geier had verbally authorized the prescription refills.

         Staff members prepared a report recommending that the Board issue a public cease-and-desist order against Dr. Geier. The Board's staff submitted the proposal for the Board to consider at its monthly meeting in January 2012. The administrative prosecutor who was assigned to prosecute the disciplinary charges against the Geiers drafted the proposed order.

         The proposed order stated that the Board had "received information that [Dr. Geier] prescribed drugs to himself, his son and his wife after his license was suspended." One paragraph went on to identify five specific drugs that he allegedly prescribed and the person to whom each drug was prescribed. It did not mention either David Geier or Anne Geier by name, but it instead referred to them as Dr. Geier's "son" and his "wife," respectively. Four footnotes, inserted immediately after the names of four of the drugs, further described the medical conditions that each drug is commonly used to treat. The fifth drug was listed by a common name, and its intended use is known to the public.

         Based on the "investigative findings" that Dr. Geier practiced medicine while his license was suspended, the order required Dr. Geier to "CEASE AND DESIST from providing any and all services that constitute the practice of medicine[.]" It further provided "that this is a PUBLIC DOCUMENT." The order notified Dr. Geier that if he "challenge[d]" the order the matter would be "adjudicated according to the procedures in the Board's regulations at COMAR[, ]" i.e., under the same procedures used for formal disciplinary actions. See COMAR

         At a closed-session meeting on January 25, 2012, the 20 Board members in attendance voted unanimously to issue a public cease-and-desist order against Dr. Geier. The chair of the Board signed the document on behalf of the Board. Within the next few days, the Board's technical staff published a PDF document displaying the complete order on the Board's website. Links to that document were posted on the website's home page and on the practitioner profile page for Dr. Geier.

         C. The Amended Cease-and-Desist Order Dated February 22, 2012

         After service of the cease-and-desist order, an attorney for Dr. Geier sent a letter to the Board in protest of its decision to "specify the drugs in question including the conditions for which such drugs are used" in a public document. The attorney informed the Board that he had advised the Geier family to pursue civil claims against any personnel "responsible for generating and making public this Order[.]" Among other things, the letter accused the Board of violating a regulation in effect at that time, which authorized the Board to "issue a nonpublic cease and desist order" during an investigation of the unlicensed practice of medicine. COMAR[6]

         After receiving the letter of protest, Board counsel sent an urgent email advising high-level Board personnel to "immediately redact" from the Board's website any information identifying a particular patient or a drug prescribed to a patient. In response, the chair of the Board wrote: "Are we really including 'patient identifiable/specific' information on the website/in public disclosure of charging/conviction documentation???? If we are….., I agree that we should cease this activity asap!!!" The Board's deputy director instructed the chief of information systems to "[r]emove the cease and desist order from the website and profile" until further discussion.

         The Board approved an amended cease-and-desist order at its next monthly meeting, on February 22, 2012. The amended order omitted mention of any particular patients, drugs, or medical conditions. It simply stated that the Board had reason to believe that Dr. Geier prescribed drugs "for at least three patients." A new footnote stated: "Dr. Geier is aware of the names of these three patients. The names of the drugs and identifying prescription information is known to him and is also available to him upon request."

         The amended order was published on the Board's website, and a link to the new document was posted on the website's profile for Dr. Geier. Yet even though the website no longer included direct links to the original order, the website continued to host the page showing the PDF document for the original order. The original order continued to appear in internet search results involving Dr. Geier. Consequently, the original order remained accessible long after the Board issued the amended order.

         Through his attorney, Dr. Geier requested a hearing on the amended cease-and-desist order. Several months later, in June 2012, the Board issued formal charges against him, using language substantially similar to the language of the amended cease-and-desist order. The charging document alleged that Dr. Geier had prescribed drugs to three unnamed patients, without identifying the drugs prescribed to those patients.

         Dr. Geier contested those charges. The administrative law judge was unconvinced by the evidence connecting Dr. Geier to the prescription refills and recommended that the charges not be upheld. The administrative prosecutor filed exceptions, and after an exceptions hearing, the Board found that someone other than Dr. Geier had authorized the prescription refills in question. The Board dismissed the charges against Dr. Geier for violation of the summary suspension order and terminated the amended cease-and-desist order "as moot" on March 22, 2013.

         D. Outcome of the Medical Disciplinary Proceedings

         Meanwhile, in March 2012, administrative law judges issued the proposed decisions for the other disciplinary proceedings against Dr. Geier and David Geier. An administrative law judge recommended that the Board find that Dr. Geier committed multiple violations of the Medical Practice Act and revoke his license as a penalty. Dr. Geier filed exceptions with the Board. Another administrative law judge recommended that the Board dismiss the charges against David Geier for practicing medicine without a license. The administrative prosecutor filed exceptions with the Board.

         Two days before the exceptions hearings in May 2012, Dr. Geier made a motion asking that all Board members recuse themselves from the proceedings. Dr. Geier argued that the Board's handling of the proceedings revealed a "personal bias" against him. He informed the Board that an attorney for the Geier family had sent a notice-of-claim form to the State treasurer regarding their potential civil claims against Board personnel for the unauthorized disclosure of private medical information. His motion argued that the "prospect of litigation that may affect the personal finances of certain members" would "undoubtedly affect the Board's ability to act toward Dr. Geier with impartiality."

         At a meeting on May 23, 2012, the Board denied the recusal motion and proceeded to hear the exceptions. The Board voted to adopt proposed findings that Dr. Geier committed multiple violations of the Medical Practice Act and to accept the recommendation to revoke his medical license.[7] The Board also voted to reject the proposed findings that David Geier did not engage in the unauthorized practice of medicine and to levy a $10, 000 fine against him. Both Dr. Geier and David Geier sought judicial review, and the Board's decisions were later upheld in the circuit court and in this Court. Mark R. Geier v. Maryland State Bd. of Physicians, 223 Md.App. 404 (2015) (upholding revocation of Dr. Geier's license); David A. Geier v. Maryland Bd. of Physicians, No. 709, Sept. Term 2014 (filed July 31, 2015) (unreported) (upholding penalty against David Geier for the unlicensed practice of medicine).

         The Board's scrutiny of Dr. Geier's medical practice spawned an additional investigation of his medical partner, John L. Young, M.D., concerning the continuation of treatment after the suspension of Dr. Geier's license. The Board suspended Dr. Young's license, issued formal charges against him, and ultimately decided in 2014 to impose one year of probation upon the reinstatement of his license. The circuit court upheld that decision, and Dr. Young did not appeal.

         The Proceedings in the Circuit Court

         A. The Geiers' Action Against Board Personnel and the Board

         On December 21, 2012, during the litigation of the Geiers' petitions for judicial review, three members of the Geier family (Dr. Mark Geier; his wife, Anne Geier; and his son, David Geier) commenced the action at issue in the present appeal by filing a three-count complaint in the Circuit Court for Montgomery County. The complaint named 25 Board personnel as defendants: 20 Board members, the executive director, a deputy director, two staff members, and the administrative prosecutor.

         All claims centered on the disclosure of "private medical information" in the original cease-and-desist order, "including the names of the drugs prescribed to [the Geiers] and the specific conditions those prescriptions were intended to treat." The Geiers alleged that they suffered "severe humiliation and embarrassment" when members of the public viewed the order on the Board's website. The Geiers theorized that Board personnel "acted with ill will and with intent to injure" the Geiers, as "part of a systematic effort on the part of the [defendants] to discredit and punish [Dr. Geier and David Geier] for promoting views and treatment plans not endorsed" by the Board.

         In Count One, the Geiers raised a federal civil rights claim under 42 U.S.C. § 1983. They claimed to have "a recognized right to privacy in their private medical information, established and protected by the federal Constitution." They alleged that, in "publishing the [o]rder on the internet with [the Geiers'] private medical information," Board personnel knowingly deprived them of "their [c]onstitutional right to privacy as guaranteed by the First, Third, Fourth, Ninth, Fifth, and Fourteenth Amendments[.]" In addition to damages, the Geiers sought attorneys' fees under 42 U.S.C. § 1988.

         In Count Two, the Geiers claimed that Board personnel knowingly violated the Maryland Confidentiality of Medical Records Act (Md. Code (1982, 2009 Repl. Vol.), §§ 4-301 through 4-309 of the Health-General Article) by disclosing their prescription information without their consent.

         In Count Three, the Geiers claimed that Board personnel committed the tort of invasion of privacy by giving unreasonable publicity to private facts not of legitimate public concern. They asserted that the medical conditions described in the order were "of an extremely personal nature" and that the "disclosure of this type of information would undoubtedly be highly offensive to a reasonable person."

         Although the complaint included an allegation that the original cease-and-desist order was still available on the Board's website, the Geiers did not request an injunction. In all counts, the Geiers demanded judgment against the 25 defendants, jointly and severally, for $3 million of compensatory damages and $3 million of punitive damages.

         "Alternatively," in Count Three, the Geiers demanded judgment against the Board itself, "as an agency of the State of Maryland, in the amount of . . . $200, 000.00 per individual plaintiff[.]" This count appeared to invoke the limited waiver of sovereign immunity from the Maryland Tort Claims Act. See SG § 12-104(a) (limiting the tort liability of the State and its units to "$200, 000 to a single claimant for injuries arising from a single incident or occurrence"). The Geiers named the Board as a defendant only in Count Three.

         B. Denial of Motion to Dismiss on the Ground of Absolute Immunity

         Initially, counsel from the Attorney General's office jointly represented all defendants. Before answering the complaint, the defendants moved for dismissal of all claims.

         In addition to challenges specific to each of the three counts, the defendants contended that they possessed "absolute quasi-judicial immunity" as to any claims for damages based on their acts in the medical disciplinary proceedings. Because Maryland's appellate courts have never decided whether quasi-judicial decision-makers have absolute immunity from suit, the defendants relied on Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999). In that case, the Fourth Circuit held that a defendant had absolute immunity with respect to prosecutorial functions that he performed at the behest of the Maryland Board of Physician Quality Assurance, the predecessor of the Board of Physicians. On that ground, the Fourth Circuit affirmed the dismissal of both a federal claim under 42 U.S.C. § 1983 and a claim for invasion of privacy under Maryland law.

         The Geiers contended that their claims should proceed because their complaint included allegations of malice. Primarily, they relied on a Maryland statute that protects members and agents of the Board from civil liability for certain actions taken "without malice" in connection with the Board's proceedings. See Md. Code (1974, 2013 Repl. Vol.), § 5-715(b) of the Courts and Judicial Proceedings Article. In the alternative, the Geiers argued that the doctrine of absolute quasi-judicial immunity should not apply to the decision to issue a cease-and-desist order.

         The court denied the motion to dismiss "to the extent that it relie[d] on the immunities, common law or otherwise[.]" The court believed that it did not "have an adequate record at the motion-to-dismiss stage to fairly, much less, correctly decide whether any of the various immunities" might apply. The court said that it might "revisit" the immunity issue on a motion for summary judgment. The court, however, went on to dismiss Count Two with prejudice on other grounds, concluding that the Confidentiality of Medical Records Act did not create a private cause of action.

         In their answer, the defendants raised a host of different defenses, including "absolute quasi-judicial immunity" as to the two remaining counts. As to the count under 42 U.S.C. § 1983, the individual defendants asserted that the alleged conduct did not violate any clearly established constitutional right, while the Board maintained that it could not be sued under that statute. Other defenses to the invasion-of-privacy count largely depended on whether Board personnel had acted with malice: the immunity under § 5-715(b) of the Courts and Judicial Proceedings Article, for members and agents of the Board acting without malice; and the immunity under § 5-522(b) of the State Government Article, for State personnel acting without malice or gross negligence.

         C. Grant of Motions to Compel Discovery and for Discovery Sanctions

         In search of evidence of malice, the Geiers made expansive discovery requests. They sought to explore not only the process that produced the cease-and-desist order, but also the entire decision-making process in the related medical disciplinary proceedings (which were still the subject of their petitions for judicial review at that time). The defendants frequently withheld the requested information, invoking various common-law evidentiary privileges as well as a statute restricting discovery of the "proceedings, records, or files of the Board or any of its investigatory bodies[.]" HO § 14-410(a)(1). More often than not, the court ordered the defendants to make the requested disclosures, either because it concluded that their objections lacked merit or because it concluded that they failed to make timely objections.

         The most consequential of these discovery contests concerned the defendants' reliance on the "deliberative (executive) privilege" as a ground for refusing to produce documents from the medical disciplinary proceedings and refusing to answer questions about the Board's decisions. This evidentiary privilege may prevent the disclosure of certain "confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action." Hamilton v. Verdow, 287 Md. 544, 558 (1980). In cases where the government itself is a party or where a litigant alleges government misconduct, a litigant can overcome a formal claim of deliberative privilege by showing that the litigant's need for production of the information outweighs the government's need for confidentiality. See id. at 565-67.

         The Geiers moved for an order compelling the defendants to respond to the discovery requests and barring any future assertions of deliberative privilege. The court granted the motion, reasoning that "the privilege must yield" because the case involved "a charge of misconduct" by the agency asserting the privilege. The defendants did not pursue an appeal of that ruling.

         The Geiers moved for discovery sanctions a few months later, as the Board was still in the process of gradually disclosing thousands of pages of documents related to the disciplinary proceedings against the Geiers. The court granted the motion in part, but reserved its ruling on the specific sanction to impose.

         The Geiers also moved to compel the production of the Board's complete files from the disciplinary proceedings against Dr. Geier's medical partner, Dr. Young (while those proceedings were still being adjudicated). The court granted the motion over the defendants' objections. The defendants noted an appeal from that order. The court then granted a motion for sanctions based on the Board's failure to obey the order compelling disclosure of its files on Dr. Young.

         During the pendency of the appeal, the Geiers requested the entry of a default judgment against the Board as a sanction for the Board's noncompliance with a notice of deposition under Md. Rule 2-412(d). The Geiers had moved for sanctions when the witness designated to testify on the Board's behalf failed to appear on the date initially scheduled for the deposition, without obtaining a protective order. The Geiers again moved for sanctions when, at the rescheduled deposition, the Board's designee was inadequately prepared to answer questions about the majority of the 167 topics listed in the notice of deposition. The court granted both motions.

         On December 16, 2014, the court issued a written opinion announcing its decision to "enter a default against the defendants but on the issue of liability only" as a sanction for the Board's discovery failures. The court announced that it would schedule a trial on damages after resolution of the interlocutory appeal. The defendants filed a second notice of appeal as soon as the court entered the order imposing the sanction of default.

         D. The First Interlocutory Appellate Decision on Discovery Matters

         The Geiers moved to dismiss both appeals as premature. In a consolidated opinion, this Court explained that the order deeming all defendants in default as to liability was not subject to review until the entry of a final judgment that included any damage award. Maryland Bd. of Physicians v. Geier ("Geier I"), 225 Md.App. 114, 139-43 (2015). This Court determined, however, that the order compelling the production of documents related to Dr. Young was appealable under the collateral order doctrine. Id. at 121. This Court explained that, although routine discovery orders are not immediately appealable, "the collateral order doctrine may permit an immediate appeal of a discovery order that permits a litigant to inquire into the decisional processes of high-level government officials[.]" Id. at 131. This holding ensures that those officials need not await the outcome of a trial before seeking to vindicate an objection to the pretrial probing of their decisional thought processes. See id. at 131-32.

         Addressing the merits of the discovery order, this Court held that HO § 14-410 did not permit the Geiers to discover documents from Dr. Young's disciplinary proceedings in their action against the Board and its personnel. Geier I, 225 Md.App. at 144-47. This Court also set aside the discovery order because the court "did not expressly balance the public interest in maintaining the confidentiality of the Board's deliberations concerning Dr. Young against the Geiers' need for disclosure of those documents and the impact of nondisclosure upon the fair administration of justice" when it rejected the assertion of deliberative privilege. Id. at 151. Noting that the "decision concerning the discovery order may affect some of the premises of the order of default, such as the breadth and scope of the deposition of the Board's designee[, ]" this Court said that "the circuit court, upon a proper motion, should reevaluate" that order on remand. Id. at 155.

         As part of their interlocutory appeal, the defendants also asked this Court to address the issue of "absolute quasi-judicial immunity," which the circuit court had declined to evaluate when it denied the preliminary motion to dismiss. Geier I, 225 Md.App. at 120 & n.2. This Court "express[ed] no opinion on the applicability" of any immunity, explaining that those issues were not properly reviewable in the appeal from the discovery ruling. Id. at 152 n.22. This Court nevertheless encouraged the circuit court "[a]s part of the balancing process on remand" to "assess the Board's immunity claims," because the Geiers would not be entitled to discovery "if an immunity insulates the defendants from liability or from suit." Id.

         E. Rejection of Absolute Immunity and Other Rulings on Remand

         When the case returned to the circuit court, all defendants moved for reconsideration of the order imposing the sanction of default and for summary judgment in their favor on the ground of absolute quasi-judicial immunity. They also invoked absolute immunity as grounds for a protective order from further discovery requests.

         At a hearing on March 24, 2016, the court considered and rejected the defendants' contention that they were entitled to absolute immunity. The court was unmoved by the defendants' reliance on federal cases, which the court deemed not to be controlling. The court also expressed concern that recognizing an absolute immunity would displace § 5-715(b) of the Courts and Judicial Proceedings Article, which grants the Board's members and agents an immunity from civil liability for actions taken without malice. The court observed that the Maryland "legislature has staked out a very detailed, specific statutory scheme" of qualified immunity, and that the defendants had "not cited any a case from the Court of Appeals or the Supreme Court" extending absolute immunity to Board personnel. For identical reasons, the court denied the motion for a protective order based on absolute immunity.

         During the same hearing, the court declined to vacate the order imposing the sanction of default as to the defendants' liability. Referring to the Board's delay in producing documents, the failure of the Board's representative to attend her duly-noted deposition, and the Board's subsequent failure to produce a representative who was prepared to testify about all 167 topics in the deposition notice, the court concluded that "the conduct . . . of the defendants here was . . . abysmal, abominable, [and] sanctionable[.]"

         At the same hearing, the Geiers pursued yet another motion for sanctions, arguing that the Board improperly withheld audio recordings of its deliberations in the medical disciplinary proceedings. The court granted the motion, reasoning that the defendants had previously "waived" their assertion of privilege over the deliberations.

         The defendants immediately noted another appeal, seeking review of each of the rulings made on remand in favor of the Geiers. The Court of Appeals granted certiorari on its own initiative before any consideration by this Court.

         F. The Second Interlocutory Appellate Decision on Discovery Matters

         In the second round of appellate review, the defendants implored the Court "to consider their claims regarding the denial of their quasi-judicial immunity in the orders denying their motions for reconsideration and for a protective order." Maryland Board of Physicians v. Geier ("Geier II"), 451 Md. 526, 553 (2017). The Court, however, held that neither of those orders were immediately appealable under the collateral order doctrine. Id. at 555-57. The Court relied on its prior pronouncement that "'[i]nterlocutory trial orders overruling immunity claims by . . . agencies . . . are not appealable under this doctrine.'" Id. at 556 (quoting Dawkins v. Baltimore City Police Dep't, 376 Md. 53, 65 (2003)). The Court concluded that members of the Board of Physicians, "a quasi-judicial body within an administrative agency[, ]" were not in the limited categories of officials that may be entitled to take an immediate appeal from an order denying immunity. Geier II, 451 Md. at 557.[8]

         The Court of Appeals held that only one order, the order granting sanctions based on the failure to produce the audio recordings, was "properly appealable" at that time under "the narrow exception allowing discovery orders denying 'high level decision makers' their executive privilege to be immediately appealable under the collateral order doctrine." Geier II, 451 Md. at 547. The Court emphasized that "[r]egardless of the outcome of the trial," the harm done from "the disruption to the administrative process, caused by placing the officials under pretrial scrutiny" would be "impossible to cure" after the Board disclosed the audio recordings of its deliberations to the Geiers. Id. at 552 (citation and quotation marks omitted).

         On the merits, the Court determined that the defendants made a timely assertion of their deliberative privilege over the audio recordings. Geier II, 451 Md. at 567. The Court reasoned that "preventing the disclosure of [the Board's] pre-decisional deliberations greatly benefits the public by allowing [the Board] to undertake [its] core public protection function without the constant threat of harassment and intimidation by aggrieved parties." Id. at 569. The Court concluded that the Geiers failed to overcome the presumption arising from the formal claim of privilege over the deliberations. Id. at 570. Consequently, the recordings were "not discoverable" by the Geiers. Id.

         G. Remaining ...

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