89.02

OPINION NO. 89-2

An advisory opinion has been requested concerning whether members of the Physician Quality Assurance Board may (1) serve as expert medical witnesses in malpractice or other cases involving medical issues, or (2) engage in lobbying activities as to medical issues. In view of the responsibilities of the Board, we believe that service by its physician members as witnesses in medical malpractice cases would be inconsistent with the provisions of the Public Ethics Law. Participation, with some constraints, in other types of cases, and in legislative activities as an individual physician would, however, be allowable.

This request was presented by a Department of Health and Mental Hygiene (DHMH) administrator who is serving as the transition administrator of the newly established Physician Quality Assurance Board (the Board). The issues were not presented as involving particular individuals or specific situations, but as issues that arose in a general way in the Board's early organizational meetings. The Board was established in the 1988 Session of the General Assembly as an entity within the Department of Health and Mental Hygiene. It replaces two prior Boards, the Commission on Medical Discipline and the Board of Medical Examiners, and consists of fifteen members appointed by the Governor. Ten are physicians included on a list provided by the Medical and Chirurgical Faculty (the Statewide association of Maryland physicians, the Faculty), one is a physician appointed at the Governor's discretion, one is a representative of the Secretary of DHMH, two are consumer members appointed with the advice of the Senate, and one is a consumer member appointed from a list provided by the Maryland Hospital Association.

The consumer members may not be physicians or have family members who are physicians or have a financial interest in an entity or person regulated by the Board. Board members serve for four-year staggered terms. Some of the appointees are persons who were serving on one of the predecessor boards, while some are new appointees. The statute provides that the Board elect a secretary-treasurer and other officers as it determines from among its membership. Compensation of Board members is provided to be in accordance with the State budget, and reimbursement for expenses is also prescribed. The Board staff, including an executive director, is to be hired by the Secretary of DHMH, and the statute also provides for the assignment by the Secretary of a "sufficient number" of attorneys, investigators and hearing officers in order "to provide adequate assistance in the investigation, development, and prosecution of cases referred to the Board."

Despite the structural changes involved in combining the licensing and disciplining functions into one Board, and the staff support changes, the functional and substantive responsibilities of the Board reflect substantially those responsibilities held by the two predecessor boards. The statute provides that an individual shall be licensed by the Board before the individual may practice medicine in the State. Applicants must meet certain educational and other requirements, and must pass an examination as defined by the Board. Examination standards to be applied before educational requirements are completed may be set by the Board. Also, the Board is to "determine the subject, scope, form, and passing score for examinations given under" the law. The Board may also establish continuing education requirements as a condition to the renewal of a license.

The Board's other primary function is in exercising disciplinary authority. It may, subject to hearing and other procedural provisions, reprimand any licensee, place any licensee on probation, or suspend or revoke a license. The statute sets forth a list of 28 grounds for this kind of action, including, for example, being guilty of immoral or unprofessional conduct, being professionally, physically or mentally incompetent, abandoning a patient, promoting the sale of drugs, devices, appliances, or goods to a patient so as to exploit the patient for financial gain, making a willful misrepresentation in treatment, and failing to meet appropriate standards (as determined by appropriate peer review) for the delivery of quality medical and surgical care.

Procedurally, the Board is charged with performance of a preliminary investigation of disciplinary matters referred to it. After this investigation, it may take appropriate and immediate action as necessary, or it may refer the matter to the Faculty for further investigation. Any allegation involving the standard of medical care or fee overcharging must be sent to the Faculty, which in turn would refer the matter for investigation and review to one of its own committees, a county medical society or a peer review group within a particular involved specialty. Allegations made to the Faculty that would be grounds for disciplinary action are referred by it to the Board for processing in this procedure. A report is filed by the Faculty with the Board, which is the final authority to consider the recommendations in the report and take the action, including further investigation, that it deems to be appropriate under the law.

Notice is provided to the Board as a licensing and disciplinary body of all malpractice claims filed against a person licensed by the Board. The Board's counsel indicates that the Board considers as a preliminary matter all malpractice cases. Also, though the Board is new and has not been operational very long, its Chairman indicates that he expects that the Board would have a legislative program, taking positions on and possibly proposing legislation that would impact on its mission and procedural functioning.

The issues presented in this request involve the possible service by members of the Board as expert medical witnesses and in lobbying activities. Though there is no specific situation described, the Chairman indicates, as to the witness question, that it deals with potential service as an expert in a particular medical specialty in support of either a plaintiff or defendant. The possible types of cases include malpractice cases, which deal with the issue of a physician standard of care and also with the extent of an injury or disability as an element of assessing damages. Other types of cases are workmen's compensation, automobile accident claims, and other kinds of accidents or liability cases that tend to involve expert medical testimony more directly relating to the amount of an injury and extent of disability, rather than the standard of care.

We are advised that most medical specialists do get involved in some kind of expert witness activity. As to workmen's compensation and other tort claims, the involvement could grow out of being the attending physician. As to malpractice, however, an expert is specifically recruited, usually by an attorney, for the purpose of evaluating a case and serving as a witness. The Chairman also indicates that some physicians do tend to be associated with a particular attorney or law firm. Also, some physicians tend to be concerned primarily with plaintiffs' cases while some tend to testify more for defendants.

As to the lobbying questions, the Board's concern relates primarily to expert testimony before legislative committees or directly to various legislators as to variety of medical related issues, including, for example, tort reform, medicare/medicaid issues, and regulatory legislation. The Chairman advises that this activity is often undertaken as a representative of an entity such as a local medical society rather than as an individual. The testimony would be without compensation and at the request of the person that is the regular lobbyist for the organization. He indicates that it is entirely possible that this activity could involve testimony presenting positions that would be against legislation and otherwise opposed to positions taken by the Department of Health and Mental Hygiene or the Board.

These two questions both present issues under the employment and interest prohibitions and the prestige provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law). The employment provisions of §3-103(a)(1) prohibit a person from being employed by an entity that is subject to their authority or that of their agency (subsection (a)(1)(i)), and further bar any other employment that would impair their impartiality or independence of judgment (subsection (a)(1)(ii)). Section 3-104 bars the use of one's prestige of office for one's own private gain or that of another.

As to the potential service as expert witnesses, we have directly addressed this type of issue formally on one occasion. In Opinion No. 86-11, we permitted the Chairman of the Board of Practical Plumbing to serve as an expert witness. This Opinion relied in part on the fact that the case involved a jurisdiction and fact situation that would not have been within the authority of the State Board. It was also noted that the individual had significant credentials in addition to his status on the State Board, and the person was advised that his State Board position should not be a factor in his being qualified as an expert.

In another case involving the field of medical malpractice (No. 87-3), we advised that members of medical licensing boards could serve on Health Claims Arbitration panels as to situations that were not within the jurisdiction of their board, but could not be panelists as to defendant/licensees within the jurisdiction of their board where the same fact situation could lead to consideration by the person's board of discipline or other action regarding the person's license. Also, we have recently considered as an informal matter the testimony in a malpractice case by a high level DHMH official, advising the doctor that he should not be involved in this type of activity where the situation is one that could be considered by his agency. In all these situations, the activity was treated as an employment relationship.

In our view, the provision of personal services such as expert assistance and testimony, particularly for compensation, results in an employment relationship with the litigant on whose behalf the individual acts. We believe that where the litigant is a person, such as a doctor in a malpractice case, who is subject to the authority of the Board, this employment would be within § 3-103(a)'s strict prohibition against employment with an entity that is subject to one's authority or that of his agency. Moreover, even where the direct employer is not a physician within the Board's jurisdiction, we believe that participation as an expert or witness in a malpractice case would be within the more general inconsistent employment provision of §3-103(a)(1)(ii) of the Law, as it would still involve Board members with issues and parties that could very well appear before their agency. In addition, this type of activity could as a general matter entail their having continuing economic affiliations with attorneys and other individuals that could also be appearing and arguing before the licensing agency.

Also, though we recognize that physicians appointed to the Board are likely to have independent expertise and reputation that qualifies them as experts, we are concerned at the difficulty in ensuring that their position and status as the State's licensing and qualifications experts not figure in private litigation. It would seem that the prestige of their State office or the authority of their Board would invariably be made an issue by attorneys in the litigation. We therefore advise the Board that participation by its physician members as experts or witnesses in medical malpractice cases, either at the administrative or judicial level, would be inconsistent with the provisions of the Ethics Law.

The Board has significant and broad licensing and disciplinary authority, and the recent reorganization seems to reflect a clear legislative concern that this peer review program function effectively and credibly. We therefore believe that any involvement on behalf of parties in civil or criminal matters that arise from factual circumstances that would be actually or potentially before the Board would raise the kinds of conflict and appearance of conflict concerns that are intended to be addressed by both the employment and prestige provisions of the Ethics Law. Generally, however, where the matter being litigated is one that does not involve the Board's jurisdiction--for example, in an automobile liability case where the physician is a treating physician and the issue is extent of disability--then physician members of the Board may serve as expert advisors or witnesses.

As to the lobbying activity issues raised by the Board, we do not believe that the ability to appear before the Legislature as an individual physician expert would necessarily be limited by one's service as a member of the Physician Quality Assurance Board, even where the testimony or general position taken may differ from that officially taken by the Board. We would, however, be concerned if the lobbying activity were on behalf of or as spokesman for a private entity. We have in prior Opinions consistently held that service as an officer of a private association would involve the kind of fiduciary responsibility and duty of loyalty that would give rise to an employment relationship, even where the service is not compensated. We have treated lobbying activities as resulting in an employment relationship if they involved representation by an officer of an association on behalf of the association.

In particular, in our Opinion No. 87-1 we considered service by a member of the Board of Examiners of Nurses as an officer of an association of nurses. We concluded that in most situations service as an officer in such an association and appearance at a variety of functions (including in the Legislature) speaking on behalf of the entity, would be inconsistent employment barred by § 3-103(a)(1)(ii) of the Law. We have been concerned in these kinds of situations that action as an officer or on behalf of a private entity reflects a greater public commitment for and responsibility to another entity which could impact on the impartiality of how one approaches the same or related issues in one's official capacity as a member of a State Board. In our view, these principles would apply to the Physician Quality Assurance Board to limit the ability of its members to serve as officers of private associations to lobby in support of such an entity's legislative positions.

In summary, for future general guidance of members on this Board, we advise that physician members may not serve as expert advisers or witnesses in private administrative or judicial litigation that involves medical malpractice cases or otherwise involves issues or parties that can reasonably be expected to be actual or potential issues before the Board. They may, however, perform these services where the litigation does not involve potential Board issues, but general medical expertise, for example, in an accident case where the person has been an attending physician. Members of the Board may also undertake lobbying activities as individuals, but should not lobby in the capacity of an officer in an association of licensees.1

M. Peter Moser, Chairman
   William J. Evans
   Barbara M. Steckel

Date: January 24, 1989

——————

1 In the course of considering this opinion request there was discussion of the possibility that a Board member might hold some position or office with one or more professional associations. As this was not part of the request and specific facts were not presented, we do not specifically address these issues here. Members of the Board, however, are referred to our Opinion No. 87-1, which generally addressed this question, advising that members of licensing Boards should not (except within certain exemption and exception possibilities) also serve as officers or directors of associations of licensees subject to their authority.