Barson v. Maryland Board of Physicians
66 A.3d 50
Md. Ct. Spec. App.2013Background
- Dr. Barson entered into a Consent Order with the Board settling charges of improper prescribing, waiving rights to contest or appeal the Order and acknowledging its meaning and effect.
- The Consent Order suspended her license for 90 days and placed her on probation for at least two years, including a prohibition on algology/pain management and forfeiture of her Federal DEA and Maryland CDS registrations.
- Barson later argued she did not foresee all consequences and sought revision of the Consent Order to allow resuming anesthesiology work; the Board denied revision.
- The Administrative Prosecutor supported denial of revision, stating forfeiture was essential to public protection and not subject to modification.
- Barson petitioned for judicial review, mandamus, and declaratory relief; the circuit court dismissed, and Barson appealed.
- The appellate court held Barson waived rights to challenge or appeal the Consent Order and that no statute or regulation required revision or empowered mandamus; the Board acted within its discretion in denying revision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barson waived rights to challenge the Consent Order | Barson argues for revision based on expectations of practice. | Board argues waiver of contest/appeal bars direct challenge. | Waiver bars direct challenge; no right to revise. |
| Whether Board had to revise the Consent Order when Barson sought it | Regulatory law entitles revision upon request. | No statutory/regulatory obligation to revise; Board discretion. | No obligation to revise; Board discretionary. |
| Whether Barson was entitled to judicial review or mandamus | Circuit court should compel revision/judicial relief. | Waiver and lack of aggrievement/precluded relief; mandamus inappropriate. | No entitlement to review or mandamus. |
| Whether the Health Occupations Act or COMAR required revision or review | Statutes/regulations compel reconsideration. | Authorities do not mandate revision or automatic reconsideration. | No statutory/regulatory mandate for revision. |
Key Cases Cited
- Cohen v. Maryland State Bd. of Physician Quality Assurance, 160 Md.App. 277 (2004) (consent orders enforceable; waivers of rights binding)
- Suter v. Stuckey, 402 Md. 211 (2007) (consent and acquiescence bar later challenge)
- Oltman v. Maryland State Bd. of Physicians, 182 Md.App. 65 (2008) (no protected interest in revoked certificate after proper procedures)
- Perry v. Department of Health & Mental Hygiene, 201 Md.App. 633 (2011) (administrative mandamus requires substantial right)
- Modular Closet Systems, Inc. v. Comptroller, 315 Md. 438 (1989) (contest of agency action; focus on nature of dispute)