In its opinion filed on August 19, 2016, the Court of Appeals of Maryland (“Appellate Court”), Maryland’s highest appellate court, held that § 14-410 of the Health Occupations Article of the Annotated Code f Maryland (“HO”) generally prohibits the admission of a consent order entered into between the Maryland Board of Physicians and a physician as evidence in a criminal or civil action, with two limited exceptions.
Therefore, it was error for the trial court to have entered into evidence and submitted to the Maryland jury a redacted portion of the consent order entered into between the claimant’s medical expert and the Maryland Board of Physicians, which the Appellate Court held to have been prejudicial to the claimant in her appeal of a workers’ compensation decision.
The claimant had injured her knee as a result of a fall that she sustained at work. At issue before the Maryland Workers’ Compensation Commission, and on appeal to the Circuit Court for Baltimore City, was whether she required a total knee replacement as a result of her fall, which her employer and its insurance company contested. The Maryland Workers’ Compensation Commission found that a total knee replacement was not medically necessary.
During the jury trial that heard the claimant’s appeal, the claimant’s treating orthopedic physician testified by way of videotape that it was his opinion that the claimant needed a total knee replacement as a result of the injury she suffered at work. Her employer and its insurance company were allowed to enter into evidence a redacted portion of a Consent Order that the claimant’s treating orthopedic physician had previously entered into with the Maryland Board of Physicians in which he agreed to be placed on probation for a period of two years (the employer and its insurance company argued that the probation was relevant to the status of the expert’s medical licensure). The trial judge ruled that the defense was allowed to introduce the consent order showing that there are restrictions on the claimant’s expert’s medical license. The defense thereafter argued to the Baltimore jury that the claimant’s expert’s testimony should not be believed because he was on probation for unethical behavior. The jury found against the claimant, and the claimant appealed.
The Appellate Court stated that HO § 14-410 governs the issue of whether the Board of Physician’s consent order entered into by the claimant’s medical expert was admissible as evidence in the present case. HO § 14-410 provides in pertinent part: “(a) Except by the express stipulation and consent of all parties to a proceeding before the Board, a disciplinary panel, or any of its other investigatory bodies, in a civil or criminal action: (1) The proceedings, records, or files of the Board, a disciplinary panel, or any of its other investigatory bodies are not discoverable and are not admissible in evidence; and (2) Any order passed by the Board or disciplinary panel is not admissible in evidence. (b) This section does not apply to a civil action brought by a party to a proceeding before the Board or a disciplinary panel who claims to be aggrieved by the decision of the Board or the disciplinary panel.” (emphasis added to the two statutory exceptions provided in the statute)
The Appellate Court noted that the claimant’s expert had signed the Consent Order but nowhere on the page entitled “CONSENT” or anywhere else in the consent order does it state that agreeing to the terms of the consent order also indicates consent to its admissibility or discoverability “in a civil or criminal action.” The Appellate Court stated that the plain language of HO § 14-410 requires “the express stipulation and consent of all parties to a proceeding” before any “proceedings, records or files of the Board” or “[a]ny order passed by the Board or disciplinary panel” can be admitted “in a civil or criminal action.” The Appellate Court held that it is clear that the claimant’s expert’s signature on the “CONSENT” page does not rise to the level of an “express stipulation and consent” to anything other than agreement to be bound by the terms of the consent order, and thus the trial judge erred in ruling that the signing of the consent order constituted an exception to the privilege provided under HO § 14-410.
The Appellate Court also held that the consent order’s classification as a public document does not remove it from the ambit of HO § 14-410 because HO § 14-410 provides only two statutory exceptions, neither of which allows parties to a disciplinary proceeding of the Board to waive the protections provided under HO § 14-410 by signing a document containing a public document disclosure.
Furthermore, although HO § 14-411 permits the disclosure of a physician’s general licensure information (HO § 14-411(c) states in pertinent part: “Nothing in this section shall be construed to prevent or limit the disclosure of: (1) General licensure, certification, or registration information maintained by the Board, if the request for release complies with the criteria of § 4-333 of the General Provisions Article; . . . “), the issuance of the consent order itself does not constitute “[g]eneral licensure, certification, or registration information” but rather, “it is evidence of discipline” (HO § 14-411(c) applies only to the Board’s disclosure of general licensure information).
The Appellate Court held that the plain language of HO § 14-410 bars the admission of the consent order to impeach the credibility of a physician who is offering testimony as an expert witness. The Appellate Court also made clear that the privilege set forth under HO § 14-410 was not intended to be strictly limited to medical malpractice actions.
The Appellate Court concluded: “the plain language of HO § 14-410 generally prohibits the admission of, in any “civil or criminal action,” the “proceedings, records or files of the Board, a disciplinary panel, or any of its other investigatory bodies” and “[a]ny order passed by the Board of disciplinary panel.” HO § 14-410(a). A physician’s agreement to the terms of a consent order and the public nature of a consent order does not constitute “express stipulation and consent” to its use as evidence in a civil or criminal action. The trial court erred as a matter of law in admitting a redacted version of the consent order when the order was subject to the statutory bar of HO § 14-410 and did not meet any of the exceptions provided therein. Defense counsel’s repeated emphasis of the consent order and the underlying disciplinary action against [the claimant’s expert] made it more than probable that the jury considered the inadmissible evidence, causing prejudice to [the claimant’s] case. As a result, we conclude that a new trial is warranted.”
Source Smith v. Delaware North Companies, No. 103, September Term, 2015.
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