Can Maryland's medical board discipline a doctor for pressuring opposing expert witnesses during his own malpractice trial?

Plain-English summary

The Chairman of Maryland's Commission on Medical Discipline asked the Attorney General whether the Commission had jurisdiction to investigate two physicians, Dr. Edward J. McDonnell and Dr. William H.M. Finney, after the Court of Special Appeals called McDonnell's conduct "outrageous" in a malpractice case. McDonnell, sued for malpractice, had arranged for colleagues to warn two out-of-state expert witnesses scheduled to testify against him that their testimony would be reported to their local medical societies and professional boards, conduct the court found was clearly intended to intimidate the witnesses. The opinion concluded that this witness-tampering was "immoral conduct" that fell within the Commission's jurisdiction over McDonnell's "practice as a physician," because it arose directly out of the malpractice suit brought by his own former patient and threatened to undermine that patient's ability to get a fair trial. But the opinion found the Commission lacked jurisdiction over Finney, who helped make one of the calls, because Finney's involvement had no connection to his own medical practice or his own patients.

Currency note

This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article 43, section 130(h) of the 1979 Maryland Code, which the opinion's own author's note explains had already been recodified without substantive change into the Health Occupations Article by the time the opinion was published in the bound 1982 volume. Maryland's physician discipline statutes have continued to change since then. The opinion's own Editor's Note also records that the Commission's 1981 reprimand of Dr. McDonnell was later reversed by the Court of Appeals in 1984, so the outcome of this specific case did not end with this opinion. Anyone researching current Maryland physician discipline standards for conduct connected to litigation should consult the current Health Occupations Article and recent case law rather than relying on this opinion's analysis.

Common questions

Why could the medical board discipline one doctor's witness-tampering but not the other's?
The opinion explained that the relevant statute, Article 43, section 130(h)(8), only reached "immoral conduct of a physician in his practice as a physician." McDonnell's tampering happened in defense of his own malpractice case brought by his own former patient, so it was connected to his practice. Finney only helped by making a phone call at McDonnell's request; nothing tied that act to Finney's own practice or his own patients, so the opinion found it fell outside the statute's reach.

Was witness-tampering itself illegal, separate from the medical discipline question?
The opinion discussed a separate Maryland obstruction of justice statute, Article 27, section 27, which made it a crime to corruptly or by threats or force intimidate or impede a witness, but it noted that this route to Commission jurisdiction (a separate provision covering physicians charged with crimes of moral turpitude) did not apply here because neither doctor had actually been charged with a crime over these events.

Couldn't the Commission just discipline any physician for any immoral act?
No. The opinion specifically rejected reading the statute as an "open-ended disciplinary code" covering immoral conduct unrelated to a physician's practice, since Article 43 already had a separate provision for punishing physicians convicted of crimes of moral turpitude regardless of any connection to their practice. The opinion construed the "in his practice as a physician" language narrowly, consistent with the rule that penal statutes must be construed narrowly, while still giving it meaningful effect beyond just misconduct occurring during direct patient treatment.

What ultimately happened to Dr. McDonnell?
According to the opinion's own Editor's Note, the Commission on Medical Discipline found Dr. McDonnell guilty and issued a reprimand in 1981, but the Court of Appeals later reversed that decision in a 1984 ruling.

Background and statutory framework

In Meyer v. McDonnell, the Court of Special Appeals reversed a jury verdict for Dr. McDonnell in a malpractice suit and ordered a new trial, holding that evidence of McDonnell's witness-tampering should have been admitted as substantive evidence that McDonnell knew his defense was weak, not merely to suggest the tampered-with witnesses' testimony might be unfavorable. According to the facts as related by the court, McDonnell first asked his colleague Dr. Finney to call Dr. Thomas Langfitt, a friend of Finney's who had trained one of the plaintiff's expert witnesses, Dr. Francis Pizzi, and warn Langfitt that Pizzi's testimony would be sent to Pizzi's local medical society; Finney made the call and added that testifying might be inadvisable given Pizzi's upcoming board certification exam. Later, McDonnell directed his secretary to call a Florida physician, Dr. Robert Keyser, warning him that another expert witness, Dr. Robert Nystrom, would have his testimony sent to his local medical society and the American Academy of Orthopedic Surgeons; Keyser passed the message to Nystrom, who later told the trial judge he felt unable to testify candidly as a result. Both witnesses ultimately testified despite the pressure. The Court of Special Appeals called the conduct "outrageous," writing that "[w]hatever merit the medical profession may have in its current outcry against malpractice suits, the remedy does not lie in polluting the streams of justice by tampering with witnesses."

The opinion first addressed the Commission's jurisdiction, noting the Commission, created by Chapter 469, Laws of Maryland 1968, could act only within the twenty-four categories of "unprofessional conduct" listed in Article 43, section 130(h), and had no authority beyond its enabling statute, citing Holy Cross Hospital v. Health Services Cost Review Commission and noting the legislature had specifically deleted language that would have let the Commission act on conduct beyond the listed categories. The opinion ruled out section 130(h)(10) (obstructing "medical reports required by law") because the witnesses had agreed to testify voluntarily rather than under subpoena, and ruled out section 130(h)(4) (crimes of moral turpitude) because neither doctor had actually been charged with a crime. That left section 130(h)(8), covering "immoral conduct of a physician in his practice as a physician," which the opinion broke into two questions: whether the conduct was "immoral," and whether it occurred "in his practice as a physician."

On the immoral-conduct question, the opinion drew on Black's Law Dictionary's definition of "immoral" and on Maryland and out-of-state case law recognizing that efforts to enforce a "conspiracy of silence," discouraging physicians from testifying against each other, are unethical and can constitute obstruction of justice, citing cases like L'Orange v. Medical Protective Co. and Konrad v. Delong. It further relied on Maryland attorney-discipline cases, including Attorney Grievance Commission v. Green and Maryland State Bar Association v. Rosenberg, holding that obstruction of justice and subornation of perjury are crimes of moral turpitude justifying license revocation, to conclude the alleged tampering, if proven, constituted "immoral conduct."

The harder question was whether that immoral conduct occurred "in his practice as a physician." Finding no controlling Maryland appellate decision, the opinion surveyed out-of-state cases construing similar medical discipline statutes and identified two possible readings: a narrow one limiting "practice" to direct patient care and treatment, and a broader one covering acts that, while not part of direct treatment, have a direct impact on a present or former patient and a clear connection to the physician-patient relationship. The opinion adopted the broader reading, relying on Forziati v. Board of Registration in Medicine (fee-splitting with an attorney fell within "practice of his profession"), Wasserman v. Board of Regents (submitting false medical reports and bills for personal injury settlements was "in the practice of medicine" even without any mistreatment of a patient), and similar New York and Illinois decisions. The opinion reasoned this construction was consistent with the statute's narrow, penal-statute construction while still giving section 130(h)(8) independent meaning alongside section 130(h)(4)'s separate crime-of-moral-turpitude provision, citing Blumenthal v. Clerk of Circuit Court for Anne Arundel County for the canon that a statute should be construed to give effect to all of its provisions.

Applying that standard, the opinion concluded McDonnell's tampering occurred "in his practice as a physician" because it arose directly from a malpractice suit brought by his own former patient, threatened that patient's ability to get a fair trial on claims that McDonnell's treatment had been substandard, and was aimed at protecting McDonnell's professional reputation and his ability to keep practicing. By contrast, the opinion found no connection between Finney's assistance and Finney's own medical practice or patients, so his conduct fell outside section 130(h)(8) even though it involved the same underlying tampering scheme.

An Editor's Note attached to the opinion states that the Commission found Dr. McDonnell guilty under section 130(h)(8) in 1981 and issued a reprimand, but that the Court of Appeals reversed that decision in a 1984 ruling.

Citations

Statutes:

• Article 43, §130(h)
• Article 43, §130(h)(8)
• Article 43, §130(h)(10)
• Article 43, §130(h)(4)
• Article 43, §130(h)(18)
• Article 27, §27
• Chapter 469, Laws of Maryland 1968
• Md. Rule of Procedure 103a
• Article 43, §145 (1957 ed.)

Cases:

• Meyer v. McDonnell, 40 Md. App. 524 (1978)
• Cocco v. Maryland Commission on Medical Discipline, 39 Md. App. 170, 173 (1978)
• Holy Cross Hospital v. Health Services Cost Review Commission, 283 Md. 677, 683 (1978)
• Attorney Grievance Commission v. Walman, 280 Md. 453, 459 (1977)
• Board of Dental Examiners v. Lazzell, 172 Md. 314, 320 (1937)
• Braverman v. Bar Ass'n of Baltimore, 209 Md. 328, 344 (1956), cert. denied, 352 U.S. 830 (1956)
• Sard v. Hardy, 281 Md. 432, 443 (1977)
• L'Orange v. Medical Protective Co., 394 F.2d 57 (6th Cir. 1968)
• Carbone v. Warburton, 91 A.2d 518 (N.J. Super. Ct. App. Div. 1952), aff'd, 94 A.2d 680, 684 (N.J. 1953)
• Steiginga v. Thron, 105 A.2d 10, 11 (N.J. Super. Ct. App. Div. 1954)
• Konrad v. Delong, 57 F.R.D. 123 (N.D. Illinois 1972)
• Attorney Grievance Commission v. Green, 278 Md. 412, 415 (1976)
• Maryland State Bar Association v. Rosenberg, 273 Md. 351 (1974)
• Maryland State Bar Association v. Frank, 272 Md. 528, 539 (1974)
• State v. Margoles, 124 N.W.2d 37 (Wis. 1963)
• State Board of Osteopathic Examiners v. Berberian, 190 A.2d 330 (Pa. Super. Ct. 1963)
• State v. Fabritz, 276 Md. 416 (1975), cert. denied, 425 U.S. 942 (1975)
• Fisher v. Bethesda Discount Corporation, 221 Md. 271, 275 (1960)
• Pennsylvania State Board of Medical Education and Licensure v. Ferry, 63 Dauphin County Reports 243, aff'd, 94 A.2d 121 (Pa. Super. Ct. 1953)
• Forziati v. Board of Registration in Medicine, 128 N.E.2d 789 (Mass. 1955)
• Wasserman v. Board of Regents, 182 N.E.2d 264 (N.Y. 1962)
• Mester v. Board of Regents, 18 N.Y.S.2d 300 (N.Y. App. Div. 1940)
• Kaplan v. Department of Registration and Education, 361 N.E.2d 626 (Ill. App. 1977)
• Kansas State Board of Healing Arts v. Seasholtz, 504 P.2d 576 (Kan. 1972)
• Erdman v. Board of Regents, 261 N.Y.S.2d 634 (N.Y. App. Div. 1965)
• State of Montana v. Board of Medical Examiners, 339 P.2d 981 (Mont. 1959)
• Blumenthal v. Clerk of Circuit Court for Anne Arundel County, 278 Md. 398, 403 (1976)
• Board of County Commissioners of Howard County v. Fleming, 13 Md. App. 261, 268 (1971)
• McDonnell v. Commission on Medical Discipline, No. 25, September Term, 1984 (opinion filed November 2, 1984), rev'g 56 Md. App. 391 (1983)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Physicians—Commission on Medical Discipline—Unprofessional Conduct—"Immoral Conduct"—Moral Turpitude—Obstruction of Justice—Witness-Tampering by Defendant-Physician in Malpractice Suit is "Immoral Conduct in His Practice as a Physician"

November 29, 1979*

John E. Adams, M.D., Chairman
Commission on Medical Discipline

You have requested our opinion on whether the Commission on Medical Discipline of Maryland has jurisdiction under Article 43, § 130(h) [HO§ 14-504] of the Maryland Code to consider possible disciplinary action against Edward J. McDonnell, M.D. ("McDonnell") and William H.M. Finney, M.D. ("Finney"), for acts allegedly taken by them in connection with the defense of a medical malpractice suit filed against McDonnell. This matter was brought to your attention by a decision of the Court of Special Appeals, in which the Court labeled as "outrageous" the conduct of McDonnell in tampering with expert medical witnesses of the plaintiff. Meyer v. McDonnell, 40 Md. App. 524 (1978).1

For the reasons stated below, we conclude that the Commission on Medical Discipline has jurisdiction under Article 43, § 130(h)(8) [HO §14-504(3)] to investigate and consider possible disciplinary action against McDonnell, but not Finney.2

• Issued on November 29, 1979, on confidential basis pending action by the Commission on Medical Discipline. See Editor's Note following Opinion. The statutory provisions upon which this Opinion relied have since been recodified, without substantive change, as part of the Health Occupation Article ("HO" Article) of the Maryland Code. Cross-references to the new codification have been added to the text in brackets.

1 Although the Court of Special Appeals labeled as "outrageous" only the conduct of McDonnell (the appellee in the case before it), we also address the question of whether the Commission has jurisdiction over Finney for actions he took in concert with McDonnell.

2 This Opinion is based solely upon the facts set forth by the Court of Special Appeals in Meyer v. McDonnell. On the basis of those facts, we have concluded that the Commission has jurisdiction to proceed against McDonnell. However, it is not our role to conclude, nor do we conclude, that McDonnell in fact is guilty of "unprofessional conduct". Only the Commission can make such a finding. If the Commission on Medical Discipline decides to proceed against McDonnell for "unprofessional conduct", McDonnell is entitled to an evidentiary hearing before the Commission, at which he may introduce additional evidence relevant to any charges made by the Commission. See generally Laws, Regulations & Guidelines of the Commission on Medical Discipline, Commission on Medical Discipline (1976).

I
Background

In Meyer v. McDonnell, 40 Md. App. 524 (1978), the Court of Special Appeals reversed the lower court's judgment in favor of the defendant, McDonnell, and held that the trial judge incorrectly instructed the jury with regard to evidence that McDonnell had "tampered" with the plaintiff's witnesses. The trial judge had instructed the jury that this evidence was admissible only for the purpose of raising an inference that the testimony of the witnesses would be unfavorable to McDonnell, but not as substantive evidence to support the plaintiff's claim of negligence on the part of McDonnell. The Court of Special Appeals, however, held that the jury should have been instructed that the witness-tampering evidence was admissible to show McDonnell's consciousness of the weakness of his case. The Court, therefore, remanded the case for a new trial.

According to the evidence, as reported by the Court of Special Appeals, the first instance of witness-tampering was initiated during the malpractice trial against McDonnell when McDonnell asked his colleague, Finney, to call Dr. Thomas H. Langfitt, former Chief of Neurosurgery at the University of Pennsylvania and a long-time friend of Finney, and inform Dr. Langfitt that Dr. Francis J. Pizzi was scheduled to testify against McDonnell and that Dr. Pizzi's testimony would be transcribed and sent to Dr. Pizzi's local medical society in New Jersey. Dr. Langfitt had trained Dr. Pizzi and was the person responsible for bringing Dr. Pizzi into neurosurgery. Finney carried out McDonnell's request; in doing so, he also told Dr. Langfitt that it might be inadvisable for Dr. Pizzi to testify in an out-of-state medical malpractice trial inasmuch as Dr. Pizzi was scheduled to take the oral portion of his certification examinations before the American Board of Neurological Surgery.3 Dr. Langfitt then called Dr. Pizzi and communicated the substance of Dr. Finney's admonition. Dr. Pizzi was quite upset by the Langfitt phone call, but he did testify in the McDonnell case.

3 The Court of Special Appeals noted that McDonnell denied any knowledge of Dr. Pizzi's impending oral examination. 40 Md. App. at 527.

The second instance of witness-tampering was initiated during the trial when McDonnell directed his secretary to call Dr. Robert P. Keyser, a physician in Florida, and tell him that another Florida physician, Dr. Robert B. Nystrom, was scheduled to testify against McDonnell and that Dr. Nystrom's testimony would be transcribed and disseminated to both Dr. Nystrom's local medical society in Florida and the American Academy of Orthopedic Surgeons. McDonnell's secretary made the call. Dr. Keyser told her that he would communicate this information to Dr. Nystrom, a result expected and intended by McDonnell. Dr. Keyser, a mentor and close colleague of Dr. Nystrom, did call Dr. Nystrom. Dr. Nystrom later stated to the trial judge that, as a consequence of Dr. Keyser's call, he felt he would be unable to testify candidly. He did, however, testify at trial. In short, according to the Court of Special Appeals, McDonnell's message was clearly intimidating and was intended by him to be so.

In describing the conduct of McDonnell as "outrageous", the Court noted: "Whatever merit the medical profession may have in its current outcry against malpractice suits, the remedy does not lie in polluting the streams of justice by tampering with witnesses." 40 Md. App. at 525.

II
The Commission's Jurisdiction

The Commission on Medical Discipline of Maryland (the "Commission") was created by Chapter 469, Laws of Maryland 1968, to conduct investigations of "unprofessional conduct" and to impose disciplinary measures on physicians, for the purpose of protecting the public from a physician's improper conduct, incompetence, or unscrupulous practices. Cocco v. Maryland Commission on Medical Discipline, 39 Md. App. 170, 173 (1978).

Article 43, § 130(h) [HO §14-504] lists twenty-four types of "unprofessional conduct" that provide the basis for a variety of sanctions, including reprimand, probation, or suspension or revocation of a physician's license to practice medicine in Maryland.

The Commission, as an administrative agency created by statute, has no authority beyond its statute. Cf., e.g., Holy Cross Hospital v. Health Services Cost Review Commission, 283 Md. 677, 683 (1978).4 It is thus clear that, for the Commission to have jurisdiction over the actions of McDonnell and Finney, those actions must fall within the scope of one or more of the items listed in § 130(h). Almost all of the specific types of unprofessional conduct described in § 130(h) are facially inapplicable to the tampering incidents. There are several items, however, that are potentially applicable.

First, §130(h)(10) [HO §14-504(13)] authorizes the imposition of disciplinary measures if a physician willfully impedes or obstructs the filing or recording of, or induces another person to omit to file or record, "medical reports required by law". The record of Meyer v. McDonnell in the Baltimore City Court contains no subpoenas for those out-of-state witnesses who were subjected to the attempts at intimidation. Nor would any subpoena be effective as to an out-of-state witness. Md. Rule of Procedure 103a. It therefore appears that the witnesses had agreed to testify on a voluntary basis and not in response to any legal process. Consequently, even if their intended testimony were "medical reports" within the meaning of §130(h)(10), they were not "required by law".

4 The legislative history of the statute also confirms that the General Assembly intended the Commission to have jurisdiction only over those types of unprofessional conduct specifically listed in § 130(h). An early version of the Commission's enabling legislation would have empowered the Commission to take disciplinary action for any of the specific causes listed as "unprofessional conduct", but would have further provided that "such action shall not be limited to these causes". This phrase, however, was deleted from the legislation before its enactment. See Chapter 469, Laws of Maryland 1968.

A second potentially applicable provision is § 130(h)(4) [HO §14-504(6)]. It authorizes the Commission to exercise jurisdiction if a physician has been charged with a crime involving moral turpitude and has entered a nolo contendere or guilty plea or has been convicted of the crime. If, as a result of the tampering incidents, McDonnell and Finney were prosecuted criminally for obstruction of justice, or for some other related crime involving moral turpitude, and if they were convicted or entered nolo contendere or guilty pleas, the Commission then would have jurisdiction to conduct an investigation and impose disciplinary measures under § 130(h)(4). But § 130(h)(4) now is not applicable, because the physicians have not been charged with any crime.

The only remaining item of "unprofessional conduct" that might provide the Commission with jurisdiction in this case is § 130(h)(8) [HO §14-504(3)], which makes punishable "immoral conduct of a physician in his practice as a physician".5 As discussed below, we believe that McDonnell's conduct, if proven to be as described by the Court of Special Appeals, is within the scope of this subsection, but that Finney's conduct is not. We separately analyze the two components of this subsection: (1) "immoral conduct of a physician" and (2) "in his practice as a physician".

5 If the Commission were to determine that McDonnell had been professionally incompetent in his treatment of Alvin Meyer, the plaintiff-appellant in Meyer v. McDonnell, it could assert jurisdiction over McDonnell under §130(h)(18) [HO§14-504(4)]. This item authorizes the Commission to investigate a physician guilty of "professional incompetency". However, we do not believe that McDonnell's and Finney's alleged misconduct in connection with McDonnell's medical malpractice case falls within the scope of this item.

III
"Immoral Conduct"

In Black's Law Dictionary 676 (rev. 5th ed. 1979), "immoral" is defined as meaning:

"Contrary to good morals; inconsistent with the rules and principles of morality; inimical to public welfare according to the standards of a given community, as expressed in law or otherwise. Morally evil, impure; obscene; unprincipled; vicious; or dissolute."6

According to the opinion of the Court of Special Appeals in Meyer v. McDonnell, the conduct said to have been taken by McDonnell and Finney meets this definition.

The acts of McDonnell and Finney might be considered, subject, of course, to further investigation into all of the facts and circumstances surrounding the tampering incidents, as having been improper efforts to enforce a "conspiracy of silence", the term used to connote the reputed unwillingness of physicians to testify against other physicians in medical malpractice trials.

Courts in Maryland and elsewhere have recognized not only the existence of this "conspiracy of silence" but, also, the fact that it is unethical and contrary to the proper administration of justice. See, e.g., Sard v. Hardy, 281 Md. 432, 443 (1977); L'Orange v. Medical Protective Co., 394 F.2d 57 (6th Cir. 1968) (permitting insurer to cancel physician's malpractice insurance policy as punishment for testifying as expert witness for a plaintiff in a malpractice trial is contrary to public policy); Carbone v. Warburton, 91 A.2d 518 (N.J. Super. Ct. App. Div. 1952), aff'd, 94 A.2d 680, 684 (N.J. 1953); Steiginga v. Thron, 105 A.2d 10, 11 (N.J. Super. Ct. App. Div. 1954) (physician's unwillingness to testify against another physician is "shocking" and "unethical").

Efforts to enforce this "conspiracy of silence" by seeking to harm an expert witness professionally constitute the crime of obstruction of justice. See, e.g., Konrad v. Delong, 57 F.R.D. 123 (N.D. Illinois 1972) (defendant's attempt to intimidate plaintiff's expert medical witness by filing complaint against him with local medical society constituted obstruction of justice).7

6 In Attorney Grievance Commission v. Walman, 280 Md. 453, 459 (1977), which concerned whether a conviction for income tax evasion was a crime involving "moral turpitude" so as to merit disbarment, the Court defined moral turpitude as "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man". See also Board of Dental Examiners v. Lazzell, 172 Md. 314, 320 (1937); Braverman v. Bar Ass'n of Baltimore, 209 Md. 328, 344 (1956), cert. denied, 352 U.S. 830 (1956).

7 Article 27, §27 of the Maryland Code establishes the crime of obstruction of justice in the following terms: "If any person shall corruptly or by threats or force endeavor to influence, intimidate or impede any juror, witness or officer in any court of this state in the discharge of his duty, or shall corruptly or by threats or force obstruct or impede, or endeavor to obstruct or impede, the due administration of justice therein, he shall be liable to be prosecuted, therefor by indictment, and on conviction thereof be punished by fine not exceeding ten thousand dollars, or by imprisonment not exceeding three years, or both, according to the nature and aggravation of the offense."

There can be little doubt that conduct which constitutes obstruction of justice is "immoral conduct". In cases involving the disciplining of lawyers, the Maryland Court of Appeals has noted that obstruction of justice is a crime of moral turpitude that justifies the revocation of a professional license. See, e.g., Attorney Grievance Commission v. Green, 278 Md. 412, 415 (1976) (subornation of perjury strikes at fundamentals of our system of justice and constitutes a crime involving moral turpitude); Maryland State Bar Association v. Rosenberg, 273 Md. 351 (1974) (perjury is a blatant and purposeful obstruction of the administration of justice and is a crime involving moral turpitude); Maryland State Bar Association v. Frank, 272 Md. 528, 539 (1974) (effort to corrupt public prosecutor to subvert legitimate prosecutions of first degree murder and narcotic violations was conduct "of the greatest moral turpitude"). See also State v. Margoles, 124 N.W.2d 37 (Wis. 1963) (upholding revocation of physician's professional license based on conviction of several crimes of moral turpitude, i.e., filing false tax returns, corruptly influencing officers of federal court, and obstructing justice).

For these reasons, we believe that the conduct of McDonnell and Finney, if proved to be as described by the Court of Special Appeals in Meyer v. McDonnell, constituted "immoral conduct". We turn now to the more difficult question of whether this conduct occurred in either doctor's "practice as a physician".

IV
"In His Practice as a Physician"

A. Introduction

Section 130(h)(8) does not authorize the Commission to exercise jurisdiction over just any "immoral conduct" of a physician. Instead, that item limits the scope of punishable misconduct to immoral conduct of a physician "in his practice as a physician".

Section 130(h)(8) is a penal statute. See State Board of Osteopathic Examiners v. Berberian, 190 A.2d 330 (Pa. Super. Ct. 1963); 3 Sutherland, Statutory Construction §59.01 (C. Sands 4th ed. 1974). Therefore, it must be narrowly construed. See State v. Fabritz, 276 Md. 416 (1975), cert. denied, 425 U.S. 942 (1975); Fisher v. Bethesda Discount Corporation, 221 Md. 271, 275 (1960); 3 Sutherland, Statutory Construction at §59.03. Nonetheless, the intention of the legislature governs in the construction of all statutes, even penal statutes. State v. Fabritz, 276 Md. 416 (1975). Accordingly, penal statutes are not to be given a narrow or strained construction in an attempt to "exclude from their operation cases plainly within their scope and meaning"; rather, like other statutes, they are to be "fairly and reasonably construed." Id.

Thus, recognition of the well-accepted canon of statutory construction that penal statutes must be narrowly construed does not resolve, but simply refines, the question we must answer: Given a properly narrow construction of § 130(h)(8), what is the meaning of the limiting phrase "in his practice as a physician"?

We have found no controlling decision by a Maryland appellate court to assist us in answering this question. Decisions involving medical disciplinary statutes in other jurisdictions provide us with some, albeit limited, guidance.8 These decisions are not uniform but, instead, suggest at least two possible constructions of § 130(h)(8).

8 For the most part, the statutes in other jurisdictions are much less comprehensive or less specific than their Maryland counterpart; hence, decisions interpreting them are of limited value. Many of these statutes tend to resemble the former Maryland statute, previously codified at Article 43, §145 of the Maryland Code (1957 ed.). That section authorized the Board of Medical Examiners to revoke or suspend a physician's license for fraud in obtaining a medical license, habitual drunkenness, insanity, addiction to narcotics, unlawful abortion, conviction of a crime involving moral turpitude, "or unprofessional or dishonorable conduct". The current statute, which substituted the Commission on the Medical Discipline for the Board of Medical Examiners as the disciplinary body, was proposed in part because the Board of Medical Examiners was hampered both by its competing duties in connection with physician licensure, collection of fees, and maintenance of a physician's registry and by inadequate statutory authority to protect the public. See J. Berman, Legal Mechanism for Dealing with the Disabled Physician in Maryland: Partnership between the Medical Society and the State Commission on Medical Discipline, Maryland State Medical Journal 4145 (February 1976); F. Grad and N. Marti, Legislative Drafting Research Fund of Columbia University, Study of Medical Disciplinary Procedures (Final Report Under Contract No. PHS-282-76-0452-65, submitted Feb. 16, 1978).

B. Alternative Constructions

First, the word "practice", as used in the clause "in his practice as a physician", might be construed to cover only the direct provision of medical care and treatment by a physician to his or her patients. So construed, it would cover, for example, an intentional assault on a patient by a physician during the course of the physician's examination. Cf., e.g., State Board of Osteopathic Examiners v. Berberian, 190 A.2d 330 (Pa. Super. Ct. 1963) (term "unethical conduct", when used as a basis for jurisdiction in medical discipline statute, must be limited to the doctor-patient relationship). Accord Pennsylvania State Board of Medical Education and Licensure v. Ferry, 63 Dauphin County Reports 243, aff'd, 94 A.2d 121 (Pa. Super. Ct. 1953) (term "grossly unethical practice" referred to the practice of medicine and surgery).

Second, the word "practice" might be construed to include acts done by a physician that, even though they might not accompany immediate care or treatment, have a direct impact on present or former patients and some clear connection to a present or former physician-patient relationship. See, e.g., Forziati v. Board of Registration in Medicine, 128 N.E.2d 789 (Mass. 1955); Wasserman v. Board of Regents, 182 N.E.2d 264 (N.Y. 1962); Mester v. Board of Regents, 18 N.Y.S.2d 300 (N.Y. App. Div. 1940); Kaplan v. Department of Registration and Education, 361 N.E.2d 626 (Ill. App. 1977). So construed, §130(h)(8) would authorize the Commission to punish, for example, a physician who makes obscene phone calls to present or former patients.

Although § 130(h)(8) clearly allows punishment for "immoral conduct" that occurs while a physician is providing direct medical care to a patient (the intentional assault example), we do not believe that it should be limited solely to such conduct. We conclude, rather, that it should also be construed to include, at least, "immoral conduct" by a physician that, even though not occurring directly in the course of or as a part of medical treatment, has a direct impact on a present or former patient relationship (the obscene phone calls example). A discussion of the pertinent cases and canons of statutory construction follows.

C. Discussion

In Forziati v. Board of Registration in Medicine, 128 N.E.2d 789 (Mass. 1955), the Massachusetts Supreme Judicial Court interpreted a state statute that authorized the state medical board to discipline a physician found to be guilty of: "'deceit, malpractice, [or] gross misconduct in the practise [sic] of his profession, or of any offence [sic] against the laws of the commonwealth relating thereto.'" 128 N.E.2d at 791 (emphasis added).

Forziati, a practicing physician, was charged with soliciting patients for an attorney who, in turn, rewarded Forziati with a percentage of his legal fees. In a declaratory judgment action, Forziati argued that the medical board was without jurisdiction to hear the charges against him because the statutory language "in the practice of his profession" was limited to the diagnosis and treatment of patients. The court in Forziati rejected this contention: "These words . . . are not in our opinion limited, as the plaintiff would have us believe, to that which is done in the diagnosis and treatment of the patient. We are satisfied that they were intended to include all conduct of the practitioner in carrying on his professional activities. Fee splitting was one of the methods adopted by the plaintiff in his practice of medicine." 128 N.E.2d at 792.9

9 As is the case with § 130(h)(8), the medical discipline statute in Forziati had several detailed provisions (§2) as well as the more general clause (§61) construed by the court. However, the court attached little significance to this juxtaposition of detailed and more general provisions: "[W]e are not convinced that the specific mention in §2 of certain kinds of misconduct for which a physician may be subject to discipline as there specified has the effect of weakening the broader power conferred upon the board by §61, in any other way, than as indicated by the opening words of the present §61, 'Except as otherwise provided by law.'" 128 N.E.2d at 792.

In reaching its conclusion that the charged misconduct was within the scope of Forziati's "practice of his profession", the court gave substantial weight to the fact that the attorney-physician scheme violated the trust and confidence reposed in the physician by his patients. 128 N.E.2d at 791.

A series of New York cases provide further support for our construction of § 130(h)(8). In Wasserman v. Board of Regents, 182 N.E.2d 264 (N.Y. 1962), the New York Court of Appeals reviewed a statute that authorized discipline for "fraud in the practice of medicine". It concluded that a physician's participation in the preparation of false medical reports and bills for use in settling personal injury cases placed him within the purview of that statute. The court rejected the physician's argument that he had never mistreated a patient, submitted a false bill to a patient, or falsely diagnosed a patient: "Nothing in the statute limits discipline for fraudulent diagnoses to cases where the fraud is perpetrated directly on the patient .... Appellant's fraudulent scheme, of course, was dependent upon misuse of his medical license, and the submission of false reports and bills to interested persons was an integral part of his medical practice." 182 N.E.2d at 266. The court concluded that the physician was "engaged in the practice of medicine when he committed the fraudulent acts". 182 N.E.2d at 265-66.

The court in Wasserman supported its decision by citing to Mester v. Board of Regents, 18 N.Y.S.2d 300 (N.Y. App. Div. 1940). In Mester, the court found that a physician's issuance of a false medical certificate concerning the physical condition of one of his patients constituted deceit in the "practice of medicine". 18 N.Y.S.2d at 301. Again, the court reached this conclusion even though the disciplined physician had not been found to have mistreated or improperly cared for a patient. Accord Kaplan v. Department of Registration and Education, 361 N.E.2d 626 (Ill. App. 1977) (conspiracy to defraud insurer by submission of false reports constituted "fraud or deceit in the practice of medicine"). See also Kansas State Board of Healing Arts v. Seasholtz, 504 P.2d 576 (Kan. 1972); Erdman v. Board of Regents, 261 N.Y.S.2d 634 (N.Y. App. Div. 1965); State of Montana v. Board of Medical Examiners, 339 P.2d 981 (Mont. 1959).

These decisions suggest that the words of § 130(h)(8), "in his practice as a physician", ought to be construed to include acts done by a physician that, while not necessarily occurring directly in the course of or as a part of medical care or treatment, have a direct impact on present or former patients and are connected to a present or former physician-patient relationship.

To be sure, the plain meaning of §130(h)(8), as well as the general legislative history of §130, indicate that it was not intended to be an open-ended disciplinary code that authorizes discipline for all immoral conduct, even if unrelated to a physician's practice. Our construction of § 130(h)(8), however, which requires that a physician's "immoral conduct" have a direct impact on a physician's patient and be connected to a physician-patient relationship, rejects such an open-ended reading of §130 and, we believe, is consistent with its plain meaning and history.

For the same reasons, we believe that our construction is consistent with the maxim discussed above that penal statutes should be narrowly construed.

Finally, our construction gives full effect to all provisions of §130. See Blumenthal v. Clerk of Circuit Court for Anne Arundel County, 278 Md. 398, 403 (1976); Board of County Commissioners of Howard County v. Fleming, 13 Md. App. 261, 268 (1971). By reading §130(h)(8) to make punishable only immoral conduct that affects patients and is connected to a physician-patient relationship, our construction gives full effect to § 130(h)(4), which is available to punish a physician who is convicted of or pleads guilty or nolo contendere to a crime of moral turpitude that may be entirely unrelated to his or her practice.

V
Application

Applying § 130(h)(8), as construed above, to the conduct of McDonnell and Finney, we conclude that it is applicable to McDonnell's conduct, but not Finney's.

McDonnell's alleged "immoral conduct" occurred during a medical malpractice case that was brought by one of his former patients and that arose out of McDonnell's professional relationship with that patient. McDonnell's witness-tampering had the inevitable potential of denying a fair trial to this patient, who was alleging that McDonnell's medical treatment of him had been substandard. If these claims of malpractice had been proven to be true, McDonnell's "practice as a physician" might have been injured or jeopardized. His actions violated the trust and confidence reposed in him, as a physician, by his patient. They also appear to have been calculated to protect his professional reputation and, ultimately, his ability to continue to practice and accept future patients. Hence, we conclude that these acts, as related by the Court of Special Appeals, occurred in McDonnell's "practice as a physician".

The apparent witness-tampering of both Finney and McDonnell was accomplished by threats, communicated by medical colleagues, to use medical societies to injure professionally two medical experts. However, there is no immediate connection between Finney's misconduct and Finney's medical practice. Thus, unlike McDonnell's conduct, Finney's actions did not occur "in his [Finney's] practice as a physician". Accordingly, his conduct was outside the scope of § 130(h)(8).

VI
Conclusion

In summary, although the question is a close one, it is our opinion that, for purposes of Article 43, §130(h)(8) of the Maryland Code, the alleged witness-tampering conduct of McDonnell and Finney may, if proven before the Commission, constitute "immoral conduct". However, only McDonnell's conduct occurred "in his practice as a physician". Accordingly, the Commission has jurisdiction over McDonnell, but not over Finney.

Stephen H. Sachs, Attorney General
Eleanor M. Carey, Associate Deputy Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

Editor's Note: On April 29, 1981, the Commission on Medical Discipline found Dr. McDonnell guilty of violating Article 43, §130(h)(8) and issued a reprimand. That decision, however, has since been reversed by the Court of Appeals. See McDonnell v. Commission on Medical Discipline, No. 25, September Term, 1984 (opinion filed November 2, 1984), rev'g 56 Md. App. 391 (1983).