Mid-Atlantic Health Law TOPICS

In May of 1999, Maryland's highest court addressed two issues of interest to the medical community - sexual harassment and the definition of the practice of medicine.

In Board of Physician Quality Assurance v. Banks, the Court of Appeals determined that an on-duty physician, Dr. Lester Banks, was guilty of immoral and unprofessional conduct in the practice of medicine when he sexually harassed his hospital co-workers. The court's ruling was notable because Dr. Banks was not directly engaged in examining or treating patients at the time of his inappropriate behavior.

A. The Facts

From 1986 to 1991, Dr. Banks worked at Carroll County General Hospital as a medical-surgical house physician admitting patients to the hospital, caring for patients and assisting in the operating and emergency rooms. While on duty but during his "down time," Dr. Banks allegedly sexually harassed female employees. Despite repeated warnings by hospital administrators, Dr. Banks' inappropriate behavior allegedly continued. Following a leave of absence, Dr. Banks once again applied for privileges at the hospital, but his application was denied.

B. The Board of Physician Quality Assurance

The Board of Physician Quality Assurance (BPQA) then charged Dr. Banks with immoral and unprofessional conduct in the practice of medicine, reprimanded him, ordered a psychological evaluation and placed him on probation.

At his hearing before the BPQA, Dr. Banks argued that his alleged aberrant behavior occurred only during his "down times" when he was merely socializing with clerical personnel who did not participate in direct patient care. Dr. Banks believed that his behavior was outside of the practice of medicine because it occurred during times when he was not diagnosing, treating or evaluating patients.

Also, Dr. Banks suggested that the sexual harassment charges against him should be addressed by the Maryland Commission on Human Relations, not the BPQA.

The BPQA rejected Dr. Banks' narrow definition of the practice of medicine. In its decision, the BPQA determined that the sexual harassment occurred while Dr. Banks was on duty and in the working areas of the hospital, and, therefore, was within the practice of medicine. According to the BPQA, the hospital environment must be conducive to the practice of medicine at all times. Dr. Banks' conduct threatened to break down the cooperation among hospital employees and could directly impact patient care.

C. The Court of Appeals

The Court of Appeals agreed with the BPQA, and ruled that Dr. Banks' sexual harassment of co-workers was within the scope of the practice of medicine as defined by Maryland statute. The court reasoned that, while Dr. Banks was on duty, he was expected to be available at all times for diagnosing, caring for or treating patients, that is, for the purpose of practicing medicine.

The court dismissed Dr. Banks' contention that the Commission on Human Relations was the only appropriate venue to hear the sexual harassment charges, and stated that more than one administrative agency can have jurisdiction over a matter. The court held that BPQA was well qualified to determine whether a specific misconduct by a hospital physician was so intertwined with patient care to constitute misconduct in the practice of medicine.

Further, the court reiterated its general belief "that sexual harassment in any context is patently unacceptable."