In a reported decision, Maryland’s intermediate appellate court recently overturned a $2.5 million judgment against the Maryland Board of Physicians and staff who were found to have disclosed personal medical information in a public disciplinary order with the intent to embarrass and humiliate a physician and his family.
In Maryland Board of Physicians v. Geier, a three-judge panel unanimously ruled that the board, board staff and the board’s administrative prosecutor were entitled to absolute quasi-judicial immunity for their roles in issuing a public disciplinary order that improperly disclosed confidential medical information.
This decision means that board members and staff cannot be held liable for civil damages lawsuits based on their conduct in disciplinary proceedings.
In June 2012, the board issued a cease and desist order against physician Mark Geier, alleging that he improperly prescribed medication for himself, his wife and his son while his license was suspended. Although the order did not identify Geier’s wife and son by name, it referred to them as Geier’s “wife” and “son”, identified the specific drugs prescribed, and described the medical conditions that each drug is commonly used to treat.
Links to the order were posted on the board’s website and on Geier’s practitioner profile page. In response to a complaint from Geier’s attorney, the board issued an amended order omitting the identifying prescription and patient information, but the original order remained accessible online for nearly 18 months. Geier’s medical license was ultimately revoked, and the license revocation was upheld on appeal.
Geier, his wife and son sued the Board of Physicians, individual board members, several staff members and the board’s administrative prosecutor based on the unauthorized disclosure of their private medical information.
The Geiers sought compensatory and punitive damages for violation of their federal civil rights, violation of the Maryland Confidentiality of Medical Records Act and for invasion of privacy.
Finding that the inclusion of prescription information in the disciplinary order “was done intentionally to embarrass and humiliate the Geier family because [the Board and Board staff] did not like the way [Dr. Geier] practiced medicine,” the trial court for Montgomery County awarded Geier and his family $1.25 million in compensatory damages, $1.25 million in punitive damages and an additional $2.4 million in attorney’s fees. (Geier was a proponent of the now-discredited claim that vaccines cause autism and had been criticized for practicing “junk” science.)
The intermediate appellate court reversed the trial court award. The appellate court held that the board and board staff were entitled to absolute quasi-judicial immunity from all claims.
The court reasoned that because board disciplinary proceedings are similar to judicial proceedings that are functionally analogous to judicial and prosecutorial functions, the board and board staff should be entitled to the same type of absolute immunity afforded to judges and prosecutors in the performance of their judicial and prosecutorial duties.
The court also noted that adequate procedural safeguards exist to control otherwise unlawful acts by the board, namely the right to appeal from the order and to seek judicial review of disciplinary orders.
The decision is arguably an example of bad facts, namely an unsympathetic doctor obtaining an oversized award, leading to bad law. While the analogy to judicial and prosecutorial functions may be correct, the notion that the afforded immunity has no limits may not be correct.
Without the threat of civil damages lawsuits, there are now few external disincentives to deterring arbitrary or improperly motivated disciplinary actions. Therefore, the rights to counsel during, and to appeal from, board disciplinary actions are now even more critical to protecting a physician’s right to a fair proceeding.
Barry F. Rosen is the chairman of Gordon Feinblatt’s health care practice group, and can be reached at 410-576-4224 or [email protected]. Margaret M. Witherup is a member of Gordon Feinblatt’s health care and energy and environmental practice groups, and can be reached at 410-576-4145 or [email protected].