Smith v. Delaware North Companies, 144 A.3d 682

Background

Brenda Smith filed a workers’ compensation action seeking authorization/payment for a total left knee replacement after a workplace fall; central issue was causal connection between the fall and need for surgery.
Smith’s expert, Dr. Kevin McGovern, testified that the fall aggravated preexisting arthritis and caused a meniscal tear making knee replacement necessary.
Delaware North sought to impeach Dr. McGovern by introducing a Maryland Board of Physicians consent order (showing discipline and probation); the trial court admitted the last six pages of the consent order over Smith’s objection.
The consent order was publicly posted by the Board and Dr. McGovern had signed a page labeled “CONSENT,” but the order did not expressly state it could be used as evidence in other proceedings.
The jury returned a verdict for Delaware North; Smith moved for a new trial arguing the consent order was statutorily inadmissible under HO § 14-410 and its admission was prejudicial.
The Court of Appeals granted certiorari and held that HO § 14-410 bars admission of Board consent orders in civil or criminal actions (absent the statute’s limited exceptions), and that admission here was prejudicial — reversed and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether HO § 14-410 bars admission of a Board consent order to impeach a physician-expert	Smith: §14-410 plainly prohibits admission of Board proceedings/orders in any civil or criminal action; impeachment is not an exception	Delaware North: consent order (and its public designation) can be used to impeach credibility; general licensure disclosure statutes permit disclosure	Held: §14-410 bars admission of Board orders in civil/criminal actions unless a statutory exception applies; impeachment is not an exception
Whether a physician’s signature on a consent order (or labeling it “public”) constitutes "express stipulation and consent" to admissibility	Smith: signature does not waive §14-410 protections; consent to Board resolution ≠ consent to use in other proceedings	Delaware North: signing and public designation renders the order admissible and obtainable for impeachment	Held: signature/public status does not satisfy the statute’s requirement of an express stipulation and consent by all parties to admit the order in a civil/criminal action
Whether HO § 14-411 (public profile/disclosure) overrides § 14-410 and permits admission at trial	Smith: §14-411 governs Board disclosures, not evidence admissibility; it does not nullify §14-410	Delaware North: §14-411(c) allows disclosure of general licensure info and thus permits use	Held: §14-411 permits Board disclosure under MPIA procedures but does not render Board orders admissible in court or override §14-410
Whether the admission of the redacted consent order was harmless or prejudicial	Smith: repeated defense emphasis of the order in closing likely led jury to consider inadmissible evidence	Delaware North: other record evidence supported verdict; admission was harmless	Held: admission was prejudicial — defense repeatedly relied on the order to attack credibility and likely affected the verdict; new trial warranted

Key Cases Cited

Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886 (4th Cir. 2015) (consent-order public designation does not make it admissible; §14-410 bars admission absent express stipulation)
Unnamed Physician v. Comm’n on Med. Discipline, 285 Md. 1 (1979) (judicial review of administrative agency decisions is a civil action; background on predecessor statutes)
St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., P.A., 392 Md. 75 (2006) (interpretation of medical-review-committee privileges and extension of privilege language to "any civil action")
Pepsi Bottling Group v. Plummer, 226 Md. App. 460 (2016) (Md. Ct. Spec. App. analysis that §14-410 is not limited to malpractice actions and that impeachment exception is not implicit)