Under the Maryland Medical Practice Act, the Maryland Board of Physicians has authority to discipline Maryland physicians for forty enumerated reasons, two of which explicitly pertain to conduct committed "in the practice of medicine." In particular, the Board may discipline a doctor who is "guilty of immoral or unprofessional conduct in the practice of medicine" or who "willfully makes or files a false report or record in the practice of medicine".
Maryland's appellate courts have addressed conduct that constitutes "the practice of medicine" several times over the last fifteen years, usually favoring a broad interpretation of the phrase, and one appellate court has just addressed the issue again.
A. The Facts of Cornfeld
In Edward Cornfeld v. State Board of Physicians, a 2007 decision by Maryland's intermediate appellate court, the Court of Special Appeals, the court once again extended the Board of Physicians' power to regulate physician conduct.
Dr. Cornfeld, a Montgomery County surgeon, was found to have violated the standard of care in his treatment of a surgical patient by leaving her under anesthesia and unattended in the operating room. He also allegedly instructed the operating room nurse to recalibrate a surgical instrument, but later denied making that request.
The court's opinion, however, focused on the Board's conclusion that misrepresentations Dr. Cornfeld made during the hospital peer review, and subsequently to the Board itself, occurred "in the practice of medicine," so as to be within the Board's power to sanction.
B. Prior Decisions
Previously, in 1984, Maryland's highest court, the Court of Appeals, reached a different conclusion in McDonnell v. Commission of Medical Discipline. In that situation, the court ruled that a physician's efforts to influence expert witnesses who were scheduled to testify against him in a medical malpractice trial did not constitute sanctionable conduct "in the practice of medicine".
The court held that to be sanctionable, "misconduct must occur in the physician's practice as a physician." Since that 1984 decision, however, the courts have consistently moved towards a broader definition of the practice of medicine.
In 1999, the Court of Appeals held in Board of Physician Quality Assurance v. Banks, that sexually harassing a co-worker while on duty in the working areas of a hospital fell within the practice of medicine, even though the physician was not actually treating or caring for a patient at the time of the incident under investigation. The Banks court differentiated the situation in McDonnell, where, it held, "the physician's conduct occurred during judicial proceedings ... not in the workplace where he was present for the purpose of practicing medicine."
In 2004, the Court of Appeals held in Finucan v. Maryland Board of Physician Quality Assurance, that a physician's misconduct in engaging in consensual sexual relations with patients under his care was conduct that occurred "in the practice of medicine." In particular, the court found that Dr. Finucan's sexual relationships grew directly out of and were entangled with his physician-patient relationships, undermined the trust of his patients and damaged his patients emotionally.
C. The Cornfeld Decision
In Cornfeld, the court once again expanded the scope of what activities constitute "the practice of medicine". A three-judge panel concluded that Dr. Cornfeld's dishonesty in the hospital peer review and Board disciplinary proceedings fell within "the practice of medicine, even though he was not at work or actually dealing with a patient at the time of the misconduct."
The court stated that "by its very nature, hospital peer review of medical care rendered to a surgical patient 'relates to the effective delivery of patient care,' and therefore constitutes the practice of medicine." The court further reasoned that "as every physician knows, hospital peer review is not merely a necessary condition to maintain the privilege to treat patients at that hospital, but it also serves an important patient care purpose."
In August 2007, the Court of Appeals denied Dr. Cornfeld's request for further appellate review of the case. The Cornfeld decision thus reflects both the Board's decision to sanction improper physician conduct more aggressively, regardless of whether patients are directly impacted, as well as continuing judicial acceptance of the Board's broad powers.
Charles R. Bacharach