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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1715 September Term, 2009

MAHMAUD SHIRAZI, M.D. v. MARYLAND STATE BOARD OF PHYSICIANS

Krauser, C.J., Matricciani, Salmon, James P., (Retired, Specially Assigned)
JJ.

Opinion by Krauser, C.J.

Filed: July 1, 2011

After the Circuit Court for Wicomico County affirmed the permanent revocation of his medical license by the Maryland State Board of Physicians ("Board" or "Board of Physicians"), Mahmaud Shirazi, M.D., noted this appeal, presenting two issues: I. Whether the Board abused its discretion in failing to refer [appellant's] case to the Maryland Professional Rehabilitation Program for evaluation, training and consideration of reinstatement to practice with or without restrictions. Whether the Board's sanctioning of [appellant] was arbitrary and inconsistent with its prior actions.

II.

Because the Board neither abused its discretion nor acted arbitrarily in sanctioning appellant, we affirm. BACKGROUND Following a hearing, the presiding administrative law judge ("ALJ") issued a proposed decision in this case setting forth findings of fact and conclusions of law that were subsequently adopted by the Board of Physicians. The recitation of facts and quotations that follows is based largely on those now uncontested findings.1 Appellant, a licensed physician in Maryland, maintained an office at Peninsula Internal Medicine, a private practice owned by Candy L. Burns, a family nurse practitioner, and held privileges at Peninsula Regional Medical Center. Both the practice and the Center are located in Salisbury, Maryland, and it was at those two locations that the sexual misconduct, which was the subject of the proceedings below, occurred.

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Appellant does not challenge the Board's factual findings.

In early October, 2006, Patient A, a forty-eight-year-old woman, sought medical treatment from appellant for ongoing back, hip and shoulder pain, as well as a rash on her right hip.2 She visited appellant at his office at Peninsula Internal Medicine, three times, during the months of October and November 2006. During the third visit on November 15, 2006, while appellant and Patient A were alone in an examining room, appellant stood directly behind her, placed his hands on her hips, and ground his pubic area against her buttocks for 60 to 90 seconds. Then, while ostensibly examining a rash on her hip, appellant "grabbed her underwear and forcefully pulled them down to her knees." Looking at her vaginal area and remarking that it was dry, he inserted his bare finger into her vagina, and then, placing it under his nose, he smelled it. Although Patient A became "extremely upset," appellant "continued to sniff his finger[.]" He then wrote a prescription for Estrace,3 but did not prescribe any treatment for the rash. "[S]haking uncontrollably," Patient A left appellant's office without telling anyone about what had happened. On December 12, 2006, Patient A returned to Peninsula Internal Medicine, complaining of a cough, breathing problems, and an elevated temperature. When she arrived, she requested a different doctor. Informed that no other doctor, but appellant, was available,

Because the former patients in this case were sexually assaulted, we shall identify them by reference to the letter designations used by the Board. Estrace is a brand name for an estradiol cream, "used to treat vaginal dryness, itching, and burning." Estrogen Vaginal, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000333 (last visited Jun. 21, 2011). 2
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Patient A insisted that a female Peninsula Internal Medicine employee accompany her while she was being seen by appellant. Although, as the ALJ noted, he did not perform a physical examination, appellant diagnosed Patient A as suffering from bronchitis and acute sinusitis. Ordering a breathing treatment, he left the room. After that visit, Patient A did not talk to appellant or return to be seen by him; all of her future contact with Peninsula Internal Medicine was limited to female staff members. In April 2007, Patient A was still receiving bills from Peninsula Internal Medicine which, in her view, were unjustified. She called Kimberly Elliott, Peninsula Internal Medicine's office manager, to complain. During that conversation, Patient A disclosed to Ms. Elliott what had occurred on November 15th. Ms. Elliott immediately referred her to Candy Burns, the owner of Peninsula Internal Medicine, who then insisted upon a face-toface meeting with Patient A. At the meeting, several days later, Ms. Burns provided Patient A with a complaint form to be filed with the Board. On April 9, 2007, Patient A reported the incident to the Wicomico County Bureau of Investigation, and a week later, filed a complaint with the Board. As a result of the November 15th incident, Patient A has suffered anxiety, mood swings, nightmares, and panic attacks, and has been in need of mental health counseling. On May 1, 2007, criminal charges were filed against appellant, alleging he had committed third- and fourth-degree sex offense and second-degree assault against Patient A on November 15, 2006. Appellant was tried on those charges, and on February 22, 2008, a jury sitting in the Circuit Court for Wicomico County acquitted him.

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In October 2005, Patient B, a fifty-two-year-old woman, was admitted to the emergency room of Peninsula Regional Medical Center for shortness of breath, wheezing, and a cough. She was treated by appellant in a semi-private room, with only a curtain separating her from the room's other patient. "Initially, [appellant] listened to Patient B's chest and asked her about her medical history. [She] told [him] about previously scheduled gall bladder surgery, previous brain surgery and that her surgeon had ordered a CT scan that had revealed an ovarian cyst." She "did not complain of abdominal or pelvic pain." Nevertheless, appellant told her he wanted to perform a "quick check" and asked her to pull down her underwear. Then, without washing his hands, appellant "placed two of his fingers inside her vagina, with the other hand on her abdomen, and performed an internal examination." When appellant was finished, he took his fingers out of her vagina and wiped them underneath his nose. After Patient B informed her daughter and both of her sisters of what appellant had done, her daughter contacted the hospital. And "[l]ater on the same day, Patient B reported [appellant's] actions to her nurse and told her that she was concerned because [appellant] had done a full pelvic and breast exam on her without gloves and without washing his hands before or after." The following day, appellant, accompanied by two nurses, visited Patient B in her hospital room. Appellant told Patient B that he had not done a full pelvic examination of her, but rather, had only felt her outer pelvis. Patient B "insisted this was not true and that [appellant] had placed his fingers inside of her." When appellant again denied her

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allegations, she "became extremely upset and told [appellant] to get out of the room and asked for a new doctor." The hospital assigned a different doctor to treat Patient B. Peninsula Regional conducted an investigation into the incident with Patient B but took no action because, as noted in the quality assurance file the hospital kept on appellant, it was "unable to `substantiate the patient's allegations.'" The hospital did, however, recommend to appellant that, in the future, he should always "`obtain a nurse or other female chaperone'" whenever conducting an examination of a female patient and warned him that "`[i]f there are any future allegations of this nature, an extremely detailed investigation will ensue and appropriate actions taken on the basis of the findings.'" Patient B notified the Wicomico County Bureau of Investigation of the incident after learning that, in May 2007, appellant had been arrested for sex offenses involving Patient A. As a result of the October 2005 episode, Patient B has suffered from depression and has sought medical treatment for that condition. On September 29, 2005, Patient C, a forty-two-year-old woman, was admitted to Peninsula Regional Medical Center for symptoms of diarrhea, abdominal pain, and nausea. When she was found to have gallstones, she was scheduled for surgery. Appellant was her admitting physician, but not her surgeon. On October 2, 2005, Patient C's surgeon performed laparoscopic4 surgery on her gall bladder. While recuperating in her room at Peninsula Regional, appellant visited her.

A laparoscope is an "endoscope for examining the peritoneal cavity." STEDMAN'S MEDICAL DICTIONARY 1047 (28th ed. 2006). Using such a tool, a surgeon may operate on a patient using only relatively small incisions. Id. at 1047-48. 5

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"During the visit, he sat on the right side of her bed, lifted her gown, examined her abdomen and inserted his fingers into her vagina." He then left the room "abruptly," without "wash[ing] his hands before or after." Later the same day, Patient C informed her daughter and her cousin what had happened. The following day, appellant re-visited Patient C in her room, and there, once again inserted his fingers into her vagina. "At this point, Patient C became tense and moved causing [appellant] to withdraw his fingers. He left the room abruptly without washing his hands." After she was discharged from Peninsula Regional Medical Center, Patient C informed her husband of what had happened. She and her husband, at that time, decided not to report the incidents. But, in May 2007, after reading a newspaper report regarding appellant's arrest, she notified Ms. Burns of the October 2005 incidents at Peninsula Regional. Ms. Burns referred her to the Wicomico County Bureau of Investigation, which reported the allegations to the Board. As a result of the two incidents, Patient C has suffered from sleeping disorders and has been unable to have intimate relations with her husband. She has sought medical treatment for both problems. On September 17, 2004, Patient D, a thirty-five-year-old woman, made an appointment at Peninsula Internal Medicine for treatment of a rash on her thigh near her pelvic region. Appellant performed a physical examination of her. He did not wash his hands, nor did he wear gloves. "During the exam, [he] touched the rash and stated that he needed to make sure that the rash had not `gone below.'" He asked Patient D to remove her

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pants and underwear, but did not offer a gown or sheet to cover herself. Appellant "inserted his forefinger into her vagina without a glove, then withdrew it." He left the examination room "abruptly without saying a word or washing his hands." "Sometime in February or March 2005, Patient D spoke with a friend who had had a similar experience with [appellant]; Patient D shared her experience with this friend at this time." In May 2007, after learning of appellant's arrest, Patient D informed her husband of what had happened in September 2004. Her husband then contacted Ms. Burns, who in turn notified the Wicomico County Bureau of Investigation. The Bureau thereupon notified the Board of Patient D's allegations against appellant. In May 2007, the Board opened an investigation of appellant based on the complaint it had received from Patient A, alleging that appellant had touched her inappropriately while rendering medical treatment. On June 18, 2007, now informed of the allegations of Patients A, B and C, the Board summarily suspended appellant's license to practice medicine. On July 25, 2007, the Board held a hearing and upheld its summary suspension. Following the suspension, the Board, while conducting its own investigation, became aware of the incident involving Patient D. On March 13, 2008, the Board filed charges against appellant, alleging immoral or unprofessional conduct in the practice of medicine, in violation of the Maryland Medical Practice Act, Maryland Code (1981, 2005 Repl. Vol., 2007 Supp.),

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