Doctor's sex assault case spurs talk of background checks

Revelations that a former Catonsville doctor obtained his Maryland medical license despite having a rape conviction on his record is sparking a push for criminal background checks of physicians — a proposal that has failed and been ignored in recent years.

As recently as 2013, state lawmakers considered a bill that encouraged checks for a wide range of health care providers, including doctors. It breezed through hearings and appeared headed for passage, but was pulled after a dispute over a single word, and was not reintroduced in this year's General Assembly session.

In other years, the issue simply hasn't been raised by legislators or advocates — even though the regulatory gap was highlighted in a legislative audit report in 2007. Requirements for doctors' background checks were left out of two recent reports guiding major overhauls of the state regulatory board for doctors, while such checks were mandated this year for chiropractors, counselors and physical and mental health therapists.

But the case of Dr. William Dando has regulators and legislators talking about reforms in Maryland, one of 13 states that does not conduct background checks on physicians, according to the Federation of State Medical Boards.

Dando practiced in Maryland for nearly two decades before anyone learned he was previously convicted of raping a woman at gunpoint in Florida. Now he is facing trial in Allegany County and his medical license has been suspended on allegations that he sexually assaulted a patient in April. He has pleaded not guilty.

"I think we all assume the people we're trusting our bodies and minds to are above reproach," said state Sen. James Robey, a Howard County Democrat who sponsored the 2013 legislation and is retiring this year. "Obviously, given what we've seen … a lot more needs to be done."

Del. Barbara Robinson, a Baltimore Democrat who sponsored the House of Delegates version of the bill, plans to submit a similar bill in the next General Assembly session. A legislative proposal also is expected from the Maryland Board of Physicians, which is responsible for licensing doctors, following meetings this summer to discuss policy options and to take feedback from public health advocates and other stakeholders.

Now that the board has made other suggested reforms, including reducing a backlog of complaints, it plans to focus on the background check issue, said Chairwoman Dr. Andrea Mathias.

"You have to get that house in order," said Mathias, who was appointed by Gov. Martin O'Malley in 2012. "I believe the foundation is laid."

One patient advocate welcomed any action to give consumers more information about their doctors' criminal records.

"The pattern usually is something very egregious like this happens, and that's what makes legislators take action," said Lisa McGiffert, director of the Safe Patient Project at Consumers Union, an advocacy branch of Consumer Reports. "Most consumers would want to know if the physician they're going to had a felony conviction in their background."

In 2007, legislative auditors made 31 recommendations in evaluating the state Board of Physicians; one suggested that the agency be required to conduct criminal background checks of licensure applicants.

Instead, applicants are asked to volunteer information about any arrests, guilty pleas or convictions related to crimes of "moral turpitude." Board officials say they investigate any that are disclosed.

But while legislation to reform the board was passed that year, and to a greater extent in 2012 and 2013, none of those measures included provisions for physician background checks. Legislative changes included making the board chairmanship a post appointed by the governor and establishing dual disciplinary panels to speed processing of complaints against doctors.

Two bills were proposed in 2013 at the request of state health department staffers who oversee health occupation boards. The legislation would have given the physicians board and various other licensing boards the power to conduct background checks of applicants.

But both pieces of legislation, one in each chamber of the assembly, were withdrawn after the attorney general's office said stronger language would be needed. To gain access to a national FBI database of criminal records, the boards needed a statutory mandate for the background checks, the office said.

While that hurdle involved the difference between "may" and "shall," it was enough to kill the legislation, Robinson recalled. "It just never got resolved."

Robinson and Robey said they received little support for the measure from state licensing boards, including the Board of Physicians.

"I received nothing in writing or anything from [the board] that they indicated they supported it," Robey said.

Records from the Senate's Education, Health and Environmental Affairs Committee show that nine witnesses spoke in favor of the measure when the panel considered it in February 2013, and none opposed it. The physicians board did not send a representative or provide written testimony.

Groups including MedChi, the state's medical society, and the Maryland Hospital Association spoke in favor of the bill, some requesting amendments that would have limited how often doctors would face background checks. Representatives from state boards responsible for licensing physical therapists and dentists also supported the legislation.

State health officials said given the lack of opposition and broad support, which included that of Secretary of Health Joshua Sharfstein, the board didn't consider it necessary to add its voice to the debate. Mathias said the bill "seemed to have plenty of staying power" and that the board was "prepared to do whatever the bill authorized." But board officials were surprised when the legislation began to stall, and were not aware of any legal concerns over its language, she said.

"If it is true that the bill language, in only authorizing but not mandating background checks, made the bill un-passable, then no additional support would have changed that," Mathias said in an email.

The measure could not have been included in a more expansive bill overhauling the physicians board because it concerned more than just physicians, Mathias said. That other bill addressed matters to help the board more quickly and appropriately review complaints about doctors — issues identified in two critical reports.

The issue was nonetheless left off legislative agendas in the 2014 General Assembly session. While a health department official had brought the matter to lawmakers in 2013, Robey said that didn't happen this year.

"No one thought it was important enough to bring it back, and I just sort of let it slip through," he said.

But lawmakers said they wouldn't let that happen again given the example of Dando. (Because Dando received a Maryland license so long ago, it's not clear whether a more recent change in state law would have led to his rape conviction being uncovered.)

Details about Dando's criminal past emerged after he was indicted last month in Allegany County, accused of sexually assaulting a female patient in April at an urgent care center near Cumberland. He is scheduled to face a jury trial on those charges Sept. 3.

He had been practicing medicine in Maryland since 1996, for years in a Frederick Road medical office building in Catonsville, despite a 1987 conviction in Florida for sexual battery with the threat of a deadly weapon.

In the Florida case, he followed a woman home after a night of drinking at a strip club, broke into her house and raped her at gunpoint, according to Orlando Sentinel news reports. He pleaded guilty and was sentenced to 10 years in prison; he was released in 1991, after serving four years.

The Board of Physicians suspended Dando's license June 5, citing the Allegany indictment, and state health officials launched an inspector general's investigation to determine how he obtained his Maryland medical license. Officials said that when he applied for the license, he told the board he "assaulted someone" while under the influence of alcohol, but did not go into further detail.

It is not clear if — or to what extent — the board investigated Dando after that admission.

When the background check issue re-emerges in the General Assembly, Mathias expects some debate over the frequency and thoroughness of checks.

MedChi supported the 2013 legislation with the caveat that the measure limit the circumstances of when a records check could be required at a doctor's license renewal. The society's CEO, Gene Ransom, said he plans to discuss the issue with members.

"It's not an issue we've spent a lot of time working on, but when it's come up, we've been generally supportive," he said. "We're going to put more formal thought into a proposal that's passable, because it needs to be done."

Maryland Hospital Association spokesman Jim Reiter declined to comment on the matter, saying the organization has not studied it recently. Its 2013 testimony expressed support for the legislation, saying it would "go a long way toward" ensuring patient safety.

One lawmaker questioned the need for legislation. Del. Michael Smigiel, an Eastern Shore Republican, said the physicians board and other licensing agencies simply should ask applicants to sign a waiver allowing their criminal history to be shared in a background check. He added that he would support a background check bill.

Others said Dando's case raises alarms that can't be ignored.

"You would just never expect that somebody that has a degree can get this far after serving time in prison, convicted of rape," said state Sen. Thomas Middleton, a Charles County Democrat. "It's hard to imagine how that could happen, but obviously it did."

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