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Md. physicians’ board wins appeal against former autism doctor

The Maryland Board of Physicians has won a major battle in its civil-litigation war with a defrocked doctor, as a state appeals court said the disciplinary panel was not necessarily obligated to release investigation-related documents to the former physician.

The intermediate Court of Special Appeals’ 3-0 decision raises the possibility that a default judgment against the board may be lifted in Mark Geier’s claim that the panel acted maliciously and invaded his family’s privacy in stripping him of his medical license.

Montgomery County Circuit Judge Ronald B. Rubin issued the default judgment in December after having cited the board numerous times for having failed to comply with Geier’s request for documents related to the investigation.

Among those documents were records of the board’s pre-decisional deliberations regarding Geier’s medical partner, John Young, and communications between board investigator Joshua Shafer and the panel’s attorneys.

The board had refused to release the documents to Geier, saying they were privileged, and appealed Rubin’s order for their release, as well as the judge’s order of default.

The Court of Special Appeals on Thursday sided with the board on the privilege issue, saying Rubin failed to give sufficient weight to the panel’s strong interest in keeping its internal deliberations private and to examine more fully the Maryland attorney general’s claim of attorney-client confidentiality.

The appellate court declined to consider the board’s appeal of the order of default, saying it was not a final ruling because Rubin has not yet awarded damages. However, the court said Rubin may change his order of default if he now finds that the board’s refusal to release the documents was justified based on privilege.

Ulterior motive

“We vacate the circuit court’s [discovery] order because, in determining that the [deliberations] privilege did not apply, the court did not expressly balance the need for confidentiality against the Geiers’ need for disclosure and the impact of nondisclosure upon the fair administration of justice,” Judge Kevin F. Arthur wrote for the Court of Special Appeals.

Geier ostensibly sought the documents solely for his claims of malice and invasion of privacy and not to challenge the board’s removal of his medical license in 2012 for his controversial treatment of children with autism.

But the Court of Special Appeals said it suspects Geier’s real motive for filing the personal-injury lawsuit was to gain access to the otherwise privileged documents in a continued effort to appeal the revocation of his license.

“[F]rom a review of the record, it is beyond any serious dispute that the Geiers have used this case to circumvent the prohibition on discovery in their actions for judicial review and to obtain documents and testimony to challenge the board’s administrative actions against them,” Arthur wrote.

He was joined in the reported opinion by judges Daniel A. Friedman and Arrie W. Davis, a retired jurist sitting by special assignment.

A spokesman for the Maryland attorney general’s office declined to comment. Francis J. Kreysa, a Gaithersburg solo practitioner representing Geier, did not respond to a request for comment on the court’s decision.

Controversial treatment

The board revoked Geier’s medical license in August 2012 for “exploiting patients under the guise of providing competent medical treatment.” He is widely known for believing that vaccines cause autism and for treating autistic children with Lupron, a drug primarily used to treat precocious puberty and prostate cancer. Autism experts accused Geier of practicing junk science and putting his patients at risk of other health problems.

Geier, in addition to claiming malice, alleges the board violated his family’s right to privacy in a cease-and-desist order that stated he had prescribed drugs for himself and his family while his license was suspended.

The order, which was published online, included names of drugs and the symptoms they treated, as well as who was receiving specific drugs. The board removed a link to the order after receiving a letter from the Geiers’ lawyer and then issued an amended order without the personal medical information. But the lawsuit alleges the original order could still be found online and had been picked up by news outlets and blogs.

Friedman, in a concurring appellate opinion, said he would not return the case to circuit court because the board clearly did not act maliciously in its disciplinary proceedings against Geier, as his license revocation has been upheld on appeal.

“It seems incontrovertible to me that a finding by a reviewing court that physician disciplinary proceedings are warranted (and all the more so when the imposition [of] discipline is confirmed on appeal) precludes, as a matter of law, that the disciplinary proceedings could have been conducted with malice, in much the same way that a conviction or a judgment is a bar to claims for malicious prosecution and malicious use of process,” Friedman wrote.

The case is Maryland Board of Physicians v. Anne Geier et al., Nos. 722 and 2256, September Term 2014.