FALL 1998
by Thomas W. Keech, Board Counsel
The United States District Court for the District of Maryland has recently strengthened the immunity from lawsuits enjoyed by peer reviewers for the Board. Under the Medical Practice Act, complaints involving the standard of care must be referred first to the Medical and Chirurgical Faculty of Maryland for a peer review by the Faculty or one of its component societies. The Faculty recruits volunteer, unpaid peer reviewers to review a physician's medical practice and to report back to the Peer Review Committee, which in turn reports back to the Board.
In the case of Dr. O. v. Dr. S, Dr. O, a gynecologist, sued a volunteer peer reviewer who had submitted such a report to the Peer Review Committee. The suit alleged that Dr. S's report was false and exaggerated, and that it was motivated by malice brought about by professional jealousy, economic competition, and religious and ethnic bias.

Attorneys Carolyn B. Wescott and Thomas W. Keech of the Attorney General's Office, representing Dr. S, did not file an answer to the complaint. Instead, they filed a Motion to Dismiss, arguing that Dr. S. should not be required to answer since he is absolutely immune from such lawsuits because of his status as a peer reviewer.
Federal Judge Deborah K. Chasanow granted this motion and dismissed this suit without requiring Dr. S. to answer. The court ruled that peer reviewers have absolute immunity from civil rights lawsuits arising out of their performance of the peer review function. This immunity is based on Supreme Court case law that judges are absolutely immune from civil rights lawsuits when performing their judicial function. This judicial immunity has also been extended to prosecutors, as long as they are performing a prosecutorial function. A prosecutorial function includes making the decision whether or not to prosecute.

Agencies, including state medical boards, enjoy this same immunity when performing judicial or prosecutorial functions. A previous federal case held that the Maryland Board was performing a judicial function when disciplining a physician. Consultants to prosecutors and judicial agencies, such as detectives, coroners, pathologists and other experts, have been held to share the immunity of the agency for which they are consulting. Federal cases in Kansas and Florida have held specifically that medical and dental consultants to medical and dental boards are protected by absolute immunity. Judge Chasanow's decision thus appears to be in line with the great weight of the case law on the subject.
A peer reviewer who has absolute immunity does not have to answer the allegations in court, even where the other party alleges malice, bad faith and reprehensible motives, as long as the allegations have to do with official peer review activities. The purpose of this absolute immunity is to permit peer reviewers to perform their crucial functions without the burden of having to defend their opinions in court, and to assure the public that their judgment will not be skewed by fear that an offended party might retaliate with a lawsuit. The court's decision in Dr. O. v Dr. S. should reinforce the Peer Review Committee in accomplishing its goals.

House Bill 958, BPQA Disclosure of Physician's Address of Record will become effective on July 1, 1998. This new law allows a physician to establish a post office box as his/her public address provided the physician notifies BPQA of a nonpublic address that is not a post office box. The BPQA will offer physicians the opportunity to designate a nonpublic address in addition to the public address at the time of initial licensure and renewal. The law also prohibits BPQA from releasing a list of applicants who have applied for an initial medical license.
House Bill 3 and Senate Bill 401, Health Insurance Complaint Process for Adverse Decisions and Grievances takes effect on January 1, 1999. Insurance carriers must establish an internal grievance process for their members. This law transfers the responsibility for receiving complaints on health maintenance organizations from the Department of Health and Mental Hygiene to the Maryland Insurance Administration. It also requires that a medical director be a Maryland licensed physician and certified by the Maryland Insurance Administration. The Maryland Insurance Commissioner, in consultation with the Department of Health and Mental Hygiene and BPQA, will promulgate regulations regarding the certification of medical directors.

Senate Bill 495, Health Occupations Boards Sexual Misconduct, requires the health occupation boards to adopt regulations prohibiting sexual misconduct and providing discipline of a licensee or certificate holder found guilty of sexual misconduct.
House Bill 578, Health Care Records and Writings, allows the admissibility of health care provider records and writings in civil actions in District and in some cases Circuit Court, without testimony from the health care provider given certain procedures are met. (This means doctor's records may be used in a court preceding without requiring the doctor's presence in court.)
House Bill 886, Medical Records Definition, alters the definition of a medical record to include a file from another health care provider that relates to the health care of a patient and that identifies the patient. (A record release would require a physician to provide copies of both his/her own records and any others in his/her possession from prior treating physicians.)
Senate Bill 632, Optometrist and Physicians Replacement Contact Lens Prescriptions, requires a person who dispenses contact lenses to dispense contact lenses only upon receipt of a written prescription. The law will authorize the Board of Examiners in Optometry and the BPQA to impose a fine or utilize enforcement proceedings on an optometrist or physician who knowingly dispenses contact lenses without a valid and unexpired replacement contact lens prescription.
Senate Bill 649, Disclosure of Medical Records Health Care Provider's Insurer or Legal Counsel, authorizes a health care provider to disclose a medical record without the authorization of a person in interest to any provider's insurer or legal counsel for the purpose of handling certain actions at law, including a civil or criminal action against the provider or where the provider may be the subject of a claim by the recipient. (This means that if you are being sued, you can share the patient's medical record with your lawyer and malpractice carrier without getting a release from the patient.)
Senate Bill 699 and House Bill 1162, Health Insurance Compensation of Health Care Practitioners Capitated Fees, provides that the carrier will pay the provider, within 45 days after an enrollee or covered person chooses or obtains health care from a health care practitioner, all accrued but unpaid capitated fees attributable to that enrollee or person that the health care practitioner would have received had the enrollee or person chosen the health care practitioner at the beginning of the enrollee's or covered person's contract year.
For a copy of any of this legislation information, contact Marie Savage, BPQA Legislative Liaison, at (410) 764-4782.

The Board of Physician Quality Assurance would like to help you keep your license unencumbered. There are many Maryland laws and regulations that will impact your practice. We urge you to attend one of our free orientation programs held at the Medical and Chirurgical Faculty of Maryland (Med-Chi), 1211 Cathedral Street in Baltimore, the Montgomery County Medical Society, 15855 Crabbs Branch Road, Rockville, Maryland and in the eastern, western, and southern parts of Maryland. For information about the programs in the eastern, western and southern parts of Maryland, please contact Rod Clark, Education and Training Director, at 410-764-2492, or 1-800 492-6836, ext. 2492. All programs will begin at 6:00 p.m. and will end by 9:00 p.m.
Please choose your first and second preference for the schedule below either mail or fax your reservation to 410-358-2252.

October 14, 1998 MedChi, Baltimore, MD December 7, 1998 Southern Area (TBA)

October 21, 1998 Mont. Co. Medical Society December 10, 1998 MedChi, Baltimore, MD November 12, 1998 MedChi, Baltimore, MD January 11, 1998 Western Maryland (TBA)

November 16, 1998 Peninsula General Hospital January 14, 1999 MedChi, Baltimore, MD

November 19, 1998 Mont. Co. Medical Society January 20, 1999 Mont. Co. Medical Society

If you would like to attend any of these orientation programs, please notify BPQA with your first and second program preference. Also include your name, address, and telephone number where you can be reached during normal business hours. You will be notified of your registration and receive directions and a course outline once you have been scheduled by BPQA for this program. Physicians other than initially licenses physicians attending this program may earn 3-hours Category I Continuing Medical Education Credits toward licensure renewal. Fax your information to 410-358-2252
Sponsored by BPQA, Medical and Chirurgical Faculty of Maryland, and Medical Mutual Liability Insurance

Physicians can call 1-800-492-3805 to access a free consultant with expertise in pain management. This service is being offered to assist physicians facing difficult pain management decisions who may feel uncomfortable prescribing medications for patients in pain because they lack expertise and training in pain management. The free hot line grew out of the recognition that many patients may receive inadequate pain control because of physician reluctance to use medications such as morphine, even when clinically indicated. Studies have shown that pain management is a primary issue in palliative care and that patients often fear the pain of the dying process more than dying itself.
An unrestricted educational grant from Purdue Frederick Company made this hot line possible, and organized physicians from around the state who were Board Certified in Hospice and Palliative Medicine serve as a resource to physicians who wish immediate consultation on pain management in palliative care.

Physicians calling can expect to be called back by the on call physician within 15 minutes. Physicians who respond through the Emergency Medical Resource Center will be covered by the Good Samaritan law. By alerting physicians of the hot line resource, the BPQA is demonstrating its strong support for physicians dealing with difficult problems in pain management.

The most frequent question asked of both Board members and BPQA staff is, "Why does license renewal cost so much?" Even though an explanation is included in the renewal packet, there is always a great deal of misunderstanding on the subject. Every two years, physicians pay $520.00 to renew their medical licenses. The assumption that BPQA keeps all of this money is not correct. BPQA receives $320.00 from the tow-year renewal fee or $160.00 per year per physician for its operation. The amount retained by BPQA has not changed since 1991. The remaining $200.00 of the $520.00 two-year renewal fee is broken down as follows:

$50.00 MedChi's Physician Rehabilitation and "Peer Review" Programs

$70.00 Health Care Access and Cost Commission (HCACC)

$24.00 Maryland General Fund of the State

$56.00 State Scholarship Fund


STEVEN SALZBERG, M.D., License# D31222, Specialty: Psychiatry (Baltimore, MD) Suspension for nine (9) months; terms and conditions; if reinstated after 9 months, probation for three (3) years subject to terms and conditions. The Board found that the physician is guilty of immoral and unprofessional conduct in the practice of psychiatry and medicine and failed to meet appropriate standards of care because of boundary crossing with a patient. Effective 4/1/98

RICHARD W BITTRICK, M.D., License# D18656, Specialty: Family Practice (Lutherville, MD) Suspension for six (6) months effective May 1, 1998; three (3) months stayed; probation for three (3) years subject to terms and conditions. The Board found the physician guilty of unprofessional conduct with a female patient. Effective 4/8/98

MELVIN J. DUCKETT, M.D., License# D32401, Specialty: General Surgery (Sparks, MD) Reprimand; fine of $10,000. The physician failed to cooperate with a Board investigation. Effective 4/22/98

PHILLIP WARREN KENNY, III, EMT-P, Certificate# , Specialty: Emergency Medical Technician Paramedic (Woolford, MD) Surrender of Certification. The health provider surrendered his certification because of his inability to work competently due to illness. Effective 4/22/98

KEVIN T. SWEENEY, P.A., Certificate #: C01844, Specialty: Physician Assistant (Baltimore, MD) Surrender of Certification. The physician assistant surrendered his certification in lieu of the Board proceeding with an investigation based on information about the physician's substance abuse issues resulting in termination of his employment and failure to report to the Board arrests for DWI, conspiracy to traffic in drugs, cultivating for sale and possession of drugs. Effective 4/22/98

BRADFORD A. ROSS, M.D., License #D26689, Specialty: Emergency Medicine Surrender. The physician's inability to work competently, due to illness, based on substance abuse issues. Effective 4/22/98

ERNEST A. LEIPOLD, MD, License #D06685, Specialty: Family Practice (Grasonville, MD) Suspension; stayed based on compliance with conditions including obtaining an Inactive license. Violation of the Consent Order of August 11, 1992, with regard to self prescribing of drugs and controlled dangerous substances. Effective 5/6/98

JAMES N. SIMON, D.O., License #H33201, Specialty: Anesthesiology (Hockessin, DE) Nondisciplinary agreement to take a course specified by the Board and to notify the Board after the physician resumes active practice in Maryland. Resolution of an investigation involving anesthesiology billing issues. Effective 5/6/98

KRISHAN M. MATHUR, M.D., License #D28352, Specialty: Medical Oncology; Hematology; Internal Medicine (LaPlata, MD) The physician is required to take a record keeping course and undergo a peer review. The physician failed to meet standards of care in regard to medical documentation in his records of four (4) patients. Effective 5/13/98

MICHAEL KALCK, CRT, Certificate #: , Specialty: Cardiac Rescue Technician (Baltimore, MD) Reprimand. The Respondent was an ALS provider and who violated medical protocols for a priority 2 patient. Effective 5/27/98

SCOTT PARROTT, EMT, Certificate #: , Specialty: Emergency Medical Technician Paramedic (Bel Air, MD) Reprimand. The Respondent failed to carry out appropriate medical protocols promulgated by MIEMSS and the Board which are incorporated by regulations governing EMTP's. Effective 5/27/98

GEORGE H. WATHEN, M.D., License #D20629, Specialty: Internal Medicine (Waldorf, MD) Reprimand; continued probation for three (3) years from date of this order; terms and conditions. The Board found that the physician failed to meet standards of care in his care of nine (9) patients based on a peer review required by his probation with the Board. Effective 5/27/98

GARY ZAMERSKI, EMT, Certificate #: , Specialty: Emergency Medical Technician Ambulance (Bel Air, MD) Fine of $1,000. The Respondent rendered care beyond the scope of his MIEMSS certification as a basic life supporter. Effective 5/27/98

BENJAMIN F. TRUMP, M.D., License #D14726, Specialty: Anatomic and Clinical Pathology (Baltimore, MD) Surrender of License. The physician surrendered his license to avoid further investigation and possible issuance of charges for violation of an agreement with the Board; and because of the physician's inability to work competently due to illness. Effective 6/3/98

RICHARD W. HOLLAND, M.D., License #D48276, Specialty: Family Practice (Silver Spring, MD) Reprimand; terms and conditions to include compliance with Virginia orders of April 8, 1997 and February 5, 1998. The Board took reciprocal action based upon action by the Virginia Board for misprescribing to a patient without adequate examination and medical records including the documentation of a false diagnosis in the patient's medical record. Effective 6/4/98

JOSEPH O. BOGGI, D.O., License #: H36807, Specialty: Internal Medicine (Silver Spring, MD) Summary Suspension. Present incompetence to practice medicine. Effective 6/24/98

HUMBERTO V. CERTEZA, M.D., License #: D04364, Specialty: Family Practice; OB/GYN (Baltimore, MD) Surrender of license while under charges based on standard of care and competence issues and based on the physician's plan for retirement. Effective 6/24/98

JOHN L. HEDEMAN, M.D., License #: D05259, Specialty: Internal Medicine (Annapolis, MD) Surrender. The surrender is in lieu of further investigation by the Board with respect to compliance with probationary conditions of the Board order of May 17, 1994, and the physician's retirement from the practice of medicine. Effective 6/24/98

by Cheryl Winchell, M.D.
The role of physicians in assuring continued driving competence covers a wide spectrum. In Florida, a licensed driver can renew by mail for up to 18 years without even a vision test as long as there have been no traffic citations. In British Columbia, by contrast, drivers must have their physicians attest that they are medically fit to drive at age 75 and every two years after age 80 or the person must take a road test.
Current Maryland law requires mandatory screening of visual acuity and a self-report of physical or mental disability at license renewal time which occurs every five years regardless of the age of the driver. The list of reportable conditions includes seizure disorder, diabetes, stroke, etc. The physician's responsibility vis a vis Maryland law is limited to advising patients of their duty to self report. Drivers who indicate a health problem which might impact driving safety are then evaluated by the Medical Advisory Board of the Motor Vehicle Administration (MVA). They may request information from the private physician to determine the stability and severity of the patient's condition and they have the authority to suspend an individual's license until the driver can be tested. The Motor Vehicle Administration will accept anonymous reports from anyone concerned about a licensed driver.

A far more common scenario than a request for your records from the MVA is the request from a family member that you, the patient's doctor, speak to the patient about their driving and encourage them to stop. What is the doctor's role in this situation and what are the factors which are most important to assess when dealing with elderly drivers?
The population of the United States is aging. In fact, the most rapidly increasing age group is individuals over the age of 85. Although the proportion of elderly drivers is increasing, overall, older drivers have fewer accidents than young men in their teens and twenties. But when the accident rate is expressed as crash rate to total miles driven per year, drivers over the age of 80 have the highest accident rates of all drivers on the road. Most older drivers voluntarily limit their driving to circumstances which involve less accident risk. For example, they give up driving at night, travel short distances to familiar destinations, avoid rush hour traffic and driving in bad weather, and stay off high speed roads. This voluntary risk reduction tends to counterbalance the elderly drivers' decline in driving skills brought on by reduced visual acuity, prolonged reaction time, and various physical impairments which affect mobility such as reduced cervical spine mobility or foot problems.
But, the judgement needed to reduce risk exposure may be lacking in patients with dementia. Drivers with dementia have a 2.5 times greater accident frequency than other elderly drivers. Typically, these drivers have more difficulty negotiating turns at intersections and may fail to yield the right of way. Because of altered judgment and impaired memory and insight, these drivers may not perceive that they are driving poorly and exhibit "optimism bias" in thinking that they are actually driving better than they did when they were younger. Because dementia may be subtle in its early stages, physicians need to specifically screen for memory and judgement impairment and caution patients with deficits that they need to curtail their driving or stop driving altogether. Just as with smoking cessation, a word from the doctor can have powerful impact on subsequent patient behavior.

In addition to screening for dementia there are multiple opportunities for physicians to positively impact driving safety among seniors. The typical older driver is a medication-taker. Avoidance of sedating medications, particularly long acting benzodiazepines, tricyclic antidepressants, and opiates in the elderly, may reduce accident risk. (Most driving problems occur in the first weeks of treatment with these medications.) Patients should be cautioned not to drink alcohol when being treated with psychoactive drugs. The following practice guidelines developed by the Canadian Medical Association are taken from the Physicians' Guide to Driver Examination:
Patients suffering a single transient ischemic attack should be advised not to drive for a month. If there are subsequent attacks, the patient should not drive at all. Patients with symptomatic coronary insufficiency on minimal exertion should not drive. Patients with active psychosis should not drive. Recurrent syncope precludes driving until a cause is found and successful treatment is instituted. Patients with narcolepsy or epilepsy should not drive until their condition has been successfully treated for at least three months. Patients with progressive disorders of coordination and muscle control (such as Parkinson's Disease, brain tumors, muscular dystrophy, etc.) should be reevaluated frequently to assess the need for restrictions on driving.
In Maryland, physicians who have questions about drivers' safety should contact the MVA's Medical Advisory Board at 410-787-7957.
There is ongoing research to develop a simple reliable test to assess driving skills short of requiring a road test. One such test is called the "Useful Field of View" developed by Karlene Ball at the University of Birmingham. A computer is used to test the driver's ability to identify a symbol in a specified area of the screen quickly followed by multiple other symbols flashing outside the target area. The test measures the ability to pay attention and eliminate unwanted information and results in a score which reflects the ability to process visual information. As the score on this test falls, the risk of being involved in a driving accident increases. Perhaps this type of screening will be used in Maryland someday. Traffic safety engineers will no doubt be working to reduce ambiguous traffic situations by the increased use of turning lanes, four-way stops, and fewer intersections requiring that drivers yield the right of way. But in the meantime, physicians and family members of elderly drivers will play a key role in deciding who is safe to drive on the roads in Maryland.

This article is for informational purposes only and does not reflect the position or recommendations of BPQA. Above mentioned publication available upon request.

by Karen L. Hill, Motor Vehicle Administration, September 1998
The Maryland Department of Transportation and the Governor's Office for Individuals with Disabilities have concerns about maintaining accessible parking for individuals with disabilities. Physicians play an important role in verifying that an individual meets the criteria for handicapped parking plates or disabled parking placards. Physicians should be guided by the following criteria when making a determination that their patient is eligible for a placard or plate as set forth in Maryland Vehicle Law 13-616.
When applying for a temporary placard, the applicant obtains a letter from a physician explaining the temporary disability and the anticipated time of impaired mobility. It is important that only individuals who meet the criteria set forth in the law be certified for handicapped parking privileges. The criteria are as follows:

* Has permanently lost the use of a leg or an arm.

* Is so severely and permanently disabled as to be unable to move without a wheelchair, crutches.

* Suffers from lung disease such that his or her forced expiratory volume, one second, when measured by spirometry, is less than one liter.

* Has a permanent impairment of both eyes so that the central visual acuity is 20/200 or less in the better eye, with corrective glasses;

* Has a permanent impairment of both eyes so that there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye.

* Has a physical disability, which is permanent, which substantially impairs the person's mobility, and which is so severe the person would endure a hardship or be subject to a risk of injury if the privileges accorded a person for whom a vehicle is specially registered were denied.

The Board of Physician Quality Assurance has held that misrepresentation of the facts in any document related to the practice of medicine is grounds for discipline under the Medical Practice Act.

For further information regarding Individuals with Disability Parking Placards and Plates, call 1-800-950-IMVA (1-800 950-4682)