Please ensure Javascript is enabled for purposes of website accessibility

Md. appeals court overturns doctor’s sanction over ‘honest mistake’ on application

The State Board of Physicians abused its discretion when it sanctioned a distinguished Walter Reed research physician who made an “inadvertent error in responding to a confusing question” on a licensure application, a Maryland appeals court found.

Hundreds of other Maryland doctors also made the same mistake when they filled out their applications after a new requirement for a criminal background check was added in 2016, according to the Court of Special Appeals’ opinion in the case.

A three-judge panel ruled that the State Board of Physicians showed “Javert-like rigidity” — a reference to the rules-obsessed antagonist in “Les Miserables” — by demanding a sanction against the doctor, Kayvon Modjarrad, who is the founding director of the Emerging Infectious Diseases Branch at the Walter Reed Army Institute of Research.

Modjarrad’s mistake “was almost certainly the result of the board’s own misleading website, because more than 10% of the other applicants made the same mistake as he,” Judge Kevin F. Arthur wrote in the opinion.

“In these circumstances, the board’s Javert-like rigidity epitomizes an abuse of discretion through the failure to exercise discretion.”

According to the opinion, Modjarrad was first licensed to practice medicine in Maryland in 2016. He has a secret security clearance that he must maintain for his job at Walter Reed, which currently involves leading the U.S. Army’s Zika vaccine program and the first clinical trial of a vaccine for Middle East Respiratory Syndrome, or MERS.

After Modjarrad was initially licensed in Maryland, state law began to require a criminal history check for physicians who wished to renew their licenses. In September 2017, Modjarrad applied to renew his license for the first time and checked “yes” when a popup window asked if he had submitted his fingerprints for a background check.

Modjarrad has no criminal record and believed that he had met the requirement when he submitted his fingerprints for a federal background check, according to the opinion. Modjarrad also certified that he had completed a criminal history check at the end of the application.

Modjarrad was in Africa addressing an Ebola outbreak when he submitted the online application, the opinion notes.

About 1,500 doctors, or more than 10% of all those who renewed their licenses that year, also incorrectly checked the box signifying that they had completed a background check, Arthur wrote.

The board sent a mass email to those physicians in November 2017, which Modjarrad did not see or answer. Only about 800 of the 1,500 doctors who got the mass email responded to it.

The board also sent a letter to Modjarrad’s home address in January 2018, but Modjarrad did not receive it because he was traveling for work.

Months later, the board sent a letter to Modjarrad’s workplace alleging that he had violated state law and that his medical license could be revoked.

Modjarrad quickly completed the background check, but the board still referred his case to an administrative law judge for consideration. The judge found that Modjarrad, like many other doctors, had made an “honest mistake” when he filled out the licensure application.

The judge recommended that no disciplinary action be taken against Modjarrad, in part because a sanction could have threatened his secret security clearance.

The state objected to the judge’s recommendations, and a disciplinary panel of the Board of Physicians ultimately issued a sanction of a reprimand and a $500 fine.

Modjarrad challenged the sanction in court and a Montgomery County Circuit judge reversed the board’s decision. The board appealed to the Court of Special Appeals, which agreed with the lower court.

The state Board of Physicians claimed that its disciplinary panels always impose a sanction when they find a violation — a directive that Arthur found to be an abuse of the board’s discretion.

“The board has adopted an inflexible rule under which its panels uniformly impose some sanction, regardless of the circumstances, if they find a violation,” Arthur wrote. “By the Board’s admission, therefore, it refuses to exercise its discretion, which is an error of law that requires reversal.”

Attorney Paul Weber, who represented Modjarrad, said a few other physicians who also faced discipline because of the background check requirement have successfully challenged their sanctions.

In February 2019, a Baltimore City Circuit judge overturned the board’s decision to revoke one doctor’s license and another doctor won a favorable decision from an administrative law judge, Weber said.

“The board staff insisted on defending a flawed process at the expense of its licensees,” he said. “Fifteen hundred misread the popup and the board has sanctioned, with reprimands and fines, many different doctors.”

A spokesperson for the Maryland Attorney General’s Office, which handled the case, said the office is reviewing the decision and has no further comment.