Kim v. Maryland State Board of Physicians
9 A.3d 534
Md. Ct. Spec. App.2010Background
- Charles Y. Kim has practiced medicine in Maryland since 1977 and is Korean-born with English as a non-native language.
- In 2005 Kim was a defendant in Wagner v. Kim; Wagner was filed April 19, 2005 and he was later deposed in November 2005.
- In August 2006 Kim filled out a medical licensure renewal application answering no to questions about being sued or named in malpractice actions.
- In November 2006 the Board learned of Wagner during a separate Board proceeding and charged Kim with unprofessional conduct and willful false statements under HO §14-404.
- The Board sought reprimand, ethics course, and a $10,000 fine; the ALJ recommended $5,000 and an ethics course, with probation.
- The Board adopted the ALJ’s findings and penalties; the circuit court and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of attorney CRC scheduling statement | Kim argues the CRC scheduling statement was improperly used to charge him. | Board asserts logistics statements are not confidential CRC material and were not used substantively. | No reversible error; statements were logistically incidental and properly separate from the substantive issues. |
| Whether statements were 'in the practice of medicine' | Kim contends the renewal misstatements were not within the practice of medicine. | Board/ALJ adopt broader interpretation that license-renewal disclosures fall within the practice of medicine. | Consistent with case law, false license-renewal disclosures can be within the practice of medicine. |
| Willfulness of the false statements | Kim argues there was no willful deceit and perhaps language difficulty. | Willfulness requires voluntary and intentional conduct, not mere negligence or accident. | Substantial evidence shows Kim knowingly and intentionally concealed the Wagner case. |
| Sanction for the violations | The fines and probation were excessive. | Sanctions were within statutory authority and not arbitrary or capricious given the misconduct. | Sanctions were within the Board’s authority and not excessive under the circumstances. |
Key Cases Cited
- McDonnell v. Commission on Medical Discipline, 301 Md. 426, 483 A.2d 76 (Md. 1984) (practice of medicine limited to patient-care conduct; broader interpretation evolving)
- Board of Physician Quality Assurance v. Banks, 354 Md. 59, 729 A.2d 376 (Md. 1999) (rejects narrow reading of 'in the practice of medicine' for misconduct)
- Finucan v. Maryland Board of Physician Quality Assurance, 380 Md. 577, 846 A.2d 377 (Md. 2004) (unethical conduct may indicate unfitness to practice medicine)
- Cornfeld v. State Board of Physicians, 174 Md.App. 456, 921 A.2d 893 (Md. Ct. Spec. App. 2007) (false statements to hospital peer reviewers and Board can be 'in the practice of medicine')
- Deibler v. State, 365 Md. 185, 776 A.2d 657 (Md. 2001) (willfulness includes voluntary and intentional acts, not accidents)
- Elliott v. Board of Physicians, 170 Md.App. 369, 907 A.2d 321 (Md. 2006) (distinguishes § 14-404(a)(1) from § 14-404(a)(36); not controlling here)