A lawyer whose attempt to reschedule a Case Resolution Conference landed his client in hot water with the Maryland State Board of Physicians argued Wednesday in the Court of Appeals that the sanction should be reversed.
Dr. Charles Y. Kim, an obstetrician and gynecologist, was fined $5,000 and put on administrative probation for six months for willfully failing to disclose, on a license-renewal application, that he had been sued for medical malpractice.
However, attorney Frederick W. Goundry III said the sanction was unfair because it arose out of comments he made during a confidential stage of an earlier complaint the board was investigating.
Specifically, in trying to reschedule the Case Resolution Conference, Goundry told the board’s attorney that Kim was due in court the same day on an unrelated matter. That was how the board learned of the malpractice litigation, Goundry said.
Armed with this newfound knowledge, the board reviewed Kim’s 2006 renewal application and saw he had answered “no” to three questions about whether he had been sued for malpractice since July 1, 2004.
The questions asked whether Kim, his partners or family members had been “named as a defendant in a filing or a settlement of a medical malpractice action,” had been “sued or had a claim filed against you or any of them for medical malpractice,” or were “currently a party in a medical malpractice case.”
Kim claimed he did not “willfully fail to disclose” the litigation because he did misunderstood the questions.
The board rejected Kim’s defense. Lower courts have upheld the board’s decision.
Pressing Kim’s appeal, Goundry told the high court that state regulations prohibit the agency from relying on anything said during confidential CRC settlement proceedings against a physician.
“I told the truth” about why Kim would be unable to attend the conference, Goundry told the high court. “Because of that, my client got punished.”
But Assistant Maryland Attorney General Thomas W. Keech told the court Goundry’s disclosure occurred during a scheduling discussion, not a confidential session.
Mentioning the lawsuit had “nothing at all” to do with the confidential patient complaint that was the subject of the Case Resolution Conference, Keech added later.
Goundry, though, insisted that “conversations between attorneys are part of the [CRC] process” and thus confidential.
Keech also argued that the lawsuit against Kim was a matter of public record and could have been discovered in a routine search.
That argument drew support from several judges on the high court, which was hearing arguments on the first day of its 2011-2012 term.
“This [malpractice] case could have been found through the court’s website,” Judge Lynne A. Battaglia told Goundry. “Isn’t that dispositive?”
Judge Sally D. Adkins asked whether the existence of a medical malpractice case is “in any way confidential.”
And Judge Joseph F. Murphy Jr. said that “immunity baths” would result if Goundry’s argument were to prevail. Attorneys would disclose all of their client’s misdeeds to the board, preventing it from taking action against the doctors, he said.
Goundry, of Varner & Goundry in Frederick, appeared with Kim for the Case Resolution Conference on Nov. 1, 2006. The complaining patient was unable to attend the hearing and the session was rescheduled for Dec. 6, 2006.
On Nov. 8, 2006, Goundry told the agency’s attorney Kim would be unable to make the Dec. 6 session because he was scheduled to be in Frederick County Circuit Court that day.
The board pressed ahead with the Dec. 6 session, at which Goundry appeared before the Case Resolution Committee without Kim.
The committee recommended that the complaint against Kim be dismissed and the board agreed.
In December 2006, a Frederick County jury found Kim negligent in the medical malpractice lawsuit but concluded his negligence did not injure the patient, according to court records of Wagner v. Kim on the Maryland Judiciary’s website.
On March 5, 2007, the board filed a new administrative action against Kim, alleging he failed to disclose Wagner v. Kim on his 2006 license renewal application.
The board charged Kim with having violated the Maryland Medical Practice Act by willfully giving the incorrect answer of no to three application questions regarding whether had had ever been sued for malpractice.
Appearing before an administrative law judge, Kim said he “totally and absolutely misunderstood” the question.
The judge found Kim’s testimony “illogical and unconvincing” and “unpersuasive, illogical and defies credibility.”
The board adopted the ALJ’s findings of fact and conclusions of law before imposing the fine and six months’ probation. Kim was also ordered to take an ethics course.
The Frederick County Circuit Court and the Court of Special Appeals upheld the board’s decision.
Kim then sought review by the Court of Appeals.
The high court did not indicate when it will issue a decision in the case, Kim v. Maryland State Board of Physicians, No. 1, September Term 2011.