Pandemic FAQs: Job Loss and Employment Concerns

October 26th, 2020

In this MassBar Beat podcast, Attorney Kavita Goyal discusses frequently asked questions regarding employment and unemployment during the COVID-19 pandemic.


posted by: joelrosen in Announcements, BUSINESS, BUSINESS ADVICE & LITIGATION, Unemployment | No Comments

Doctor Fired for Taking FMLA Leave

May 17th, 2018

Case Survives Summary Judgment

This article appeared in Law 360


Steward Must Convince Jury Doc Fired For HIPAA Violation

By Chris Villani


Law360, Boston (May 16, 2018, 3:54 PM EDT) — Steward Healthcare System LLC will need to convince a jury it fired a psychiatrist for violating the Health Insurance Portability and Accountability Act and not because, as the doctor claims, he took disability leave after getting pneumonia, a Massachusetts federal judge ruled Wednesday in denying part of a summary judgment bid.

Dr. Alexander Lipin sued Steward, Steward Medical Group Inc. and Holy Family Hospital in a case removed to federal court in November 2016, nine months after he was fired. Lipin claims the hospital canned him wrongfully after he needed to extend his time off under the Family Medical Leave Act due to a bout with pneumonia, but the hospital said it decided he had to go before they knew he was sick after he passed along patient information to the police in violation of HIPAA.

SMG President Dr. George Clairmont said he was waiting for Lipin to come back from leave to officially show him the door but went ahead with the dismissal when he learned Lipin was doing work at another hospital, Anna Jaques Hospital, while supposedly out sick. In denying part of Steward’s motion for summary judgment, U.S. District Judge Leo T. Sorokin wrote Wednesday that a trial will be needed to sort out some of the issues around the prickly firing.

“A genuine issue of material fact exists as to whether Steward made its decision to terminate Lipin (1) before he took leave on January 26 and (2) before Clairmont learned of Lipin’s continued work for Anna Jaques on February 13,” Judge Sorokin wrote.

Although Judge Sorokin said nothing directly contradicts Clairmont’s description of the firing, he said finders of fact could choose to disregard his account because the hospital never actually fired Lipin or made arrangements to cover his patient workload until learning of his work for Anna Jaques.

“These circumstances could support a reasonable inference that Steward decided to fire Lipin only after Clairmont learned of Lipin’s work at Anna Jaques,” Judge Sorokin wrote. “Thus, Steward’s primary argument — that there was no causal connection between Lipin’s FMLA leave and his termination — fails for purposes of summary judgment on Lipin’s FMLA-based claims.”

The hospital said the decision to fire Lipin came after investigating a November 2015 incident during which Lipin allegedly called Methuen police and conveyed information about a patient to find out if the patient had any outstanding warrants. The police declined to speak with him about the matter, citing HIPAA, and the hospital began probing the incident over the course of the next several weeks, according to court records.

Kavita M. Goyal of the Rosen Law Offices, an attorney for Lipin, told Law360 on Thursday the HIPAA violation was “no big deal” and an excuse concocted by the hospital to drum up grounds for Lipin’s termination. Clairmont’s report characterized the offense as “minor” and Lipin would show a jury it was not the reason for the firing, Goyal said.

The judge did allow a win for Steward on separate claims by Lipin that the hospital violated the Americans With Disabilities Act by firing him on Feb. 23, 2016, after extending his FMLA leave until March 2 of that year. The judge said continuing to engage with Lipin about his illness after deciding to fire him would only have served to delay the inevitable.

“Whereas Steward had reached an employment decision without regard to any disability asserted by Lipin,” Judge Sorokin wrote, “Steward was not obligated to initiate an interactive dialogue with Lipin toward an accommodation that would have served only to forestall his termination.”

Both Goyal and Emily L. Grossman, another Lipin attorney, said they were pleased that Judge Sorokin is allowing the FMLA part of the suit to proceed, but were disappointed to see the ADA claims tossed.

“I disagree with the judge’s decision, he suggests an employer may no longer be obligated to participate in the interactive process if a decision is made to terminate, even if that decision is unlawful,” Goyal said. “In this case, he was working a second job and we believe he was protected under FMLA.

“The reason they terminated him was because they were mad he had worked at Anna Jaques and believed he was not entitled to the time off because he was working somewhere else,” Goyal added. “At the very least, the employee is entitled to a conversation.”

The parties are due back in court May 30 for an initial pretrial conference. Judge Sorokin also directed lawyers for both sides to determine whether mediation to avoid trial altogether might prove fruitful.

Counsel for Steward did not immediately respond to requests to comment Wednesday afternoon.

Lipin is represented by Kavita M. Goyal and Emily L. Grossman of Rosen Law Offices. Steward is represented by Anne S. Bider and Barry J. Miller of Seyfarth Shaw LLP.

The case is Lipin v. Steward Healthcare System LLP et al., case number 1:16-cv-12256, in the U.S. District Court for the District of Massachusetts.

–Editing by Orlando Lorenzo.


RLO Protects ATF Employee from Gender Discrimination

February 8th, 2018

Rosen Law Office settled a case in favor of a female employee of the bureau of Alcohol, Tobacco and Firearms, who was disciplined for the sort of conduct that male agents got away with.  The Boston Globe discussed the case in an article about sexual harassment at ATF. 

RLO attorneys Kavita Goyal and Emilie Grossman handled the case.  In it, an ATF intelligence research specialist named Jennifer Norcross was suspended after complaining that female employees had to attend a training session that male agents were allowed to skip.  A female colleague told a supervisor: “I guess the penises don’t have to go to the training today; only the vaginas have to go?”

Norcross agreed that female agents were being singled out.  She told the other agent, “I would give you a prize if I had one.” The ATF found Norcross displayed “inappropriate behavior” by agreeing with the comment and suspended her for one day, even though Norcross herself said nothing inappropriate.  The woman who made the comments received a two-day suspension.

Norcross complained of unequal treatment, since just a month earlier three male agents went undisciplined for their role regarding a sexually suggestive photo shared in the Boston office.  The photo showed agent Philip Ball with his pants down at his knees and boxers exposed, standing over Eric Kotchian, who was stretched out on the floor, partially under a desk. Agent Robert White e-mailed the photo to women in the office. It wasn’t until Norcross complained about her suspension that Ball and White received reprimands.  The after-the-fact reprimands were a less severe sanction than the women received, even though the male agents’ conduct was arguably more offensive.

Goyal and Grossman argued that not only was Norcross’ reprimand evidence of gender discrimination, but also that ATF retaliated against her when she supported a female colleague’s complaint about it.  The ATF settled the case by paying Norcross $41,000, reducing her suspension to a reprimand, and transferring her to another office.

Senator Charles Grassley, chairman of the Senate Judiciary Committee, told the Globe that law enforcement should be “a guiding example of professionalism and proper conduct,” but his oversight has found that at ATF, “too often, inadequate systems to track and respond to misconduct claims only add insult to injury for harassment or discrimination at work.”


Mail Order Orthodontics – Article by Joel Rosen in Lawyers Journal

January 1st, 2018

This article appeared in Lawyers Journal in December 2017.  The comparison of MassHealth’s reimbursement rates with those of online providers is no longer accurate, as MassHealth changed its reimbursement regime after the article was submitted, but the point is still valid.  The online providers charge a comparable rate to some licensed orthodontists. 

To read the original article, see:



Lawyers Journal

Mail Order Orthodontics

Issue November/December • 2017  • By Joel Rosen


Want to fix your teeth for a fraction of what you’d pay an orthodontist? How is that possible? By not paying an orthodontist.

Online providers will remotely guide you to take your own impressions and put on your own “aligners.” For $7.98, will even sell you a box of elastic “gap bands” that are supposed to pull teeth together. One of the biggest players is Smile Direct Club (SDC), a Tennessee company that provides services in Massachusetts.

The Board of Registration in Dentistry has received two complaints against SDC for the unlicensed practice of dentistry. The American Association of Orthodontists filed the first one in April. I filed the second one in August on behalf of the Medicaid Orthodontists of Massachusetts Association.

How SDC Operates

The SDC website asks you to enter your zip code. If you can successfully accomplish that task, you get a message that says, “Congratulations! You’re a great candidate.” If you want a more detailed evaluation, you can take a “free 30-second smile assessment.” You look at six drawings and choose the one you think looks like your teeth.

There are no wrong answers. Everyone who orders one gets “an at-home impression kit.” If you are not sure you can take accurate impressions at home, you can “book a scan” at the “Smile Shop” in Boston. Eventually, you receive a series of “invisible aligners,” which you insert yourself. You do not get X-rays and never see an orthodontist.

I called SDC and spoke with a guy named Andy. “Is there anything I can do to make you smile today?” he asked.

I wanted to know whether I could see an orthodontist at the Smile Shop. “We never have an orthodontist there,” he said. “We have a dental professional.”

“Is that someone with a license?”

“We have dental technicians. They are trained to use the equipment.”

“Dental technician” is not a thing. You can be a dental assistant or hygienist, but there is no license in Massachusetts for a “dental technician.”

SDC charges $95 for an impression kit, $1,850 for aligners, and $99 for a retainer. This is on the lower end of what orthodontia costs but not the bargain it seems. MassHealth pays $1,200 for banding, $90 per adjustment visit (after the first three months), and $95 for retention. A MassHealth patient who saw an orthodontist once per quarter for two years would generate a fee of $1,925. For this hypothetical case, SDC would receive $2,044. SDC would charge $119 more for online orthodontia than a licensed orthodontist would receive for 11 in-person appointments.

Dr. Ben Burris, an orthodontist from Arkansas, is an SDC spokesman who claims to have “diagnosed and treated hundreds of SmileDirectClub cases,” apparently without ever meeting a patient in person. He writes on the company’s website that he initially had concerns about SDC’s model: “The first thought that popped into my head was, ‘You can’t do that! It’s against the law for a non-dentist to practice dentistry, you can’t move teeth without an in-person visit to the dentist and you need an x-ray!’”

Dr. Burris overcame his scruples upon learning that the parent company also sells contact lenses and hearing aids over the Internet. Camelot Venture Group is the largest shareholder of Sharper Image and 1-800 Contacts. Sharper Image sells such self-cure devices as a “professional fat-reduction belt,” “sleep improving wristband,” “light therapy glasses,” a “breathing exerciser,” and “vibrating arthritis gloves.”

Dr. Burris may not realize this, but diagnosing and treating a malocclusion is not the same as filling a prescription for contacts. In one case, the patient has been examined and diagnosed by a licensed optometrist. The patient has been checked for diseases like glaucoma and has received a prescription, which can then be filled by mail. But with mail order braces, the patient receives no medical examination. Whatever other business interests the parent company may have, Dr. Burris’s initial conclusion stands. It is against the law for a non-dentist to practice dentistry.


Dissatisfied Customers

The only information publicly available on SDC’s outcomes (apart from testimonials on the SDC website) is based on voluntary reviews. The Better Business Bureau lists 126 customer complaints. Not all the online reviews are bad, but some customers say the product doesn’t work, charges are improper and customer service is terrible. One consumer writes:

I would NEVER RECCOMMEND [sic.] THIS COMPANY. I’d rather spend money … to see a real dentist and get quality service then [sic] deal with people who just want your money, ignore and lie to you….

Another customer writes on RealSelf:

I’m appalled by their customer service. I honestly wished I had paid the extra

$1,500 (after insurance) to get Invisalign through my primary dentist because it would’ve saved me that much frustration. I did not get the impression at any time using SmileDirectClub that there was actually a dental professional anywhere checking in on my progress.

Some patients write that the treatment has exacerbated a malocclusion or that they received bad medical advice. For example, a Ripoff Report user writes: “I noticed they were moving teeth that were straight (that are now totally misplaced).” Two Yelp users had similar complaints:

“I was given a 7-month treatment plan, which was delayed to a full year due to people forgetting to send my aligners, sending the wrong aligners … they even told me they accidentally sent me someone else’s aligners. Many weeks can be added for each aligner that is delayed or messed up. All of this would have been fine I guess if they just straightened my smile. My two front teeth are still bucked out and protruding and my smile looks crooked. They told me there’s nothing they can do and my teeth are in “optimal” position. Well I went to an orthodontist consultation and he immediately said I have protrusion and they can fix it, even with clear aligners. This company let me down.”

Another customer complains:

“Caused damage to my bite alignment. I can no longer bite all the way down. They also refused a full refund. Now I have a damaged “alignment” and will have to pay more at a dentist office to fix the damage…. Save your money and your smile and pay to see a real dentist in person.”

A customer reports to that her online provider (not SDC) did not screen her for TMJ and told her, incorrectly, that hers was a simple case:

“It isn’t worth the money when you’re going to get saddled with further orthodontic treatment and bimax jaw surgery, in addition to chronic pain, from something like this – trust me, I know, because I’m living it. Thankfully a real orthodontist has taken me on as a patient … after this horrible experience.”


Harm To The Public

People may not realize what they are giving up when they forgo professional treatment. For example, here is an actual comment on Amazon regarding whether orthodontic gap bands (not an SDC product) provide a lasting improvement:

“they can go back the way they was most of the reasons for this is poor high-gen all you have to do is try a list to brush 2 times a day and always but always use LISTERINE it won’t hapen in 1week o 1 month but it will happen sooner o latter depends how bad it is and you will notice i talk for personal experience becose those rubber things they only going to give ypu gum infections that all you paying for and believe me you don’t want that it really hurts i know believe me i know.”

Online patients do not receive radiographs. There is no dental screening for issues like periodontal disease, bone pathology, extra teeth in the bone, and so forth. Patients do not get any kind of basic evaluation, a cancer screen, or the identification of lesions that should be treated before orthodontia begins. Proper screening may uncover unseen, un-diagnosed issues that may result in loss of teeth, gum recession, or bone tumors that if not discovered may become increasingly serious or even fatal.

There may be impactions or cranio-facial abnormalities that may become worse under the online treatment, dentists say. Other problems may be discovered during treatment by an orthodontist, which remain hidden in an online case, for example: posterior open bites, lack of rotational control, or poor deep bite management.

Nor is anyone following the patient as an orthodontist would. As one of my clients pointed out, “The orthodontist in real time modifies the appointment periodicity as a function of the patient’s behavior and responsiveness to treatment. Furthermore, there are adverse oral conditions that that may arise during treatment. These include root resorption, soft drink related decay under aligners, gingival recession, traumatic occlusion, gingival impingement, and the loosening of dental restorations.” When no orthodontist is involved, these problems go unnoticed.

Unlicensed Practice

It’s illegal to “directly or indirectly practice or attempt to practice dentistry” without a license. G.L. c. 112, § 52. Someone is practicing dentistry if s/he “offers or undertakes by any method to diagnose [or] treat, any deficiency, deformity or other condition of the … teeth, gums, or jaws….” G.L. c. 112, § 50.

Under the regulations of the Board of Registration in Dentistry, only a licensed dentist can write an orthodontic prescription. Only licensed dentists can perform final positioning and attachment of orthodontic bonds and bands. Patients must provide specific informed consent for orthodontic procedures.

Dr. Burris says on the SDC website that he has “diagnosed and treated” hundreds of SDC cases. If SDC is diagnosing and treating patients, then it is practicing dentistry. And because it has a Boston office, SDC is providing services in the commonwealth.


What Can We Do About It

If an orthodontist opened a storefront where “dental technicians” scanned patients’ teeth and provided aligners for the patients to install themselves — without complying with any of the other regulations — that orthodontist would probably hear from the Board of Registration in Dentistry. But SDC is not a licensed dentist — it’s a corporation — and the board does not feel it has jurisdiction to impose a sanction.

But the board does not just sanction licensed dentists. It is legally required to investigate complaints of the unlicensed practice of dentistry. If it finds that there is reasonable cause to believe a violation has occurred, it “shall forthwith file a written report of the same with the attorney general who shall, within three months following receipt of such report, notify the board in writing of the action taken with respect to such violation.” G.L. c. 112, s. 43.

By using words like “forthwith” and setting a three-month time limit for the attorney general, the legislature is saying that unlicensed practice must be dealt with quickly. But after six months, the board has not taken any action on the complaints. In the meantime, Massachusetts residents have a choice. They can hire a licensed professional, or they can order aligners on the Internet and hope for the best.

posted by: joelrosen in Announcements, BUSINESS, For Medical Professionals | 3 Comments

The misuse of summary suspension

March 2nd, 2017

This article first appeared in the Lawyers Journal of the Mass. Bar Association

Read the original article at:


By Joel Rosen
November/December 2016

A professional license is a property right; it can’t be taken away without due process.1 This usually means a hearing before the licensing board imposes discipline. But sometimes a doctor or dentist presents an immediate and serious threat to the public, and it is dangerous to wait. In those cases, the boards can suspend the license immediately, as long as the practitioner gets a hearing within seven days.

Summary suspensions – sometimes called temporary suspensions – are unusual. The hearing officer may not have run into one before and may be unsure what the proper procedure is or what standard of proof applies. When that occurs, the consequences to the licensee can be tragic. Summary suspensions are rare, in part, because they harm a doctor’s livelihood and reputation without a fair chance to challenge the allegations. Anyone can file a complaint with a licensing board, and many excellent practitioners go through months of worry only to have the matter dismissed at an early stage. As an expert witness in surgery once said to me, “Everyone has been sued for malpractice.” In the usual case, the doctor continues to practice for months or years while the case grinds through the administrative procedure.

But summary suspension is sudden. The doctor’s career stops. His or her reputation is destroyed, even if she/he is eventually exonerated. The suspension disrupts connections with colleagues, hospital administrators, insurance companies, and patients. And when the matter is resolved, it is extremely difficult to reestablish those relationships. In both of the cases I am going to discuss, the doctors ultimately won – but the suspensions ended their careers for years.

The Board of Registration in Dentistry doesn’t differentiate summary suspensions from ordinary suspensions in its statistics, but the assistant executive director told me he can only remember one in recent years. The Board of Registration in Medicine imposed 10 summary suspensions between 2011 and 2014, the last year for which statistics are available. Five of those were in 2014.

A board will generally use this weapon where a doctor is insane or assaultive or has committed a crime. There have been cases: where the doctor’s ability to practice medicine was impaired by “mental instability;” where he sexually assaulted a patient during treatment; where he illegally prescribed drugs and had committed Medicaid fraud; or where he didn’t actually have a medical degree. When there is a real question about whether the treatment of a particular patient met the standard of care, the doctor should usually be allowed to practice until there is a full hearing.

A typical summary suspension regulation is 234 CMR 9.04. It says:

If, based upon affidavits or other documentary evidence, the board determines that a licensee is an immediate or serious threat to the public health, safety, or welfare, the board may suspend or refuse to renew a license pending a final hearing on the merits of the allegations regarding the licensee. A hearing limited to the determination of the necessity of the summary action shall be afforded the licensee within seven days of the board’s action pursuant to G.L. c. 112, § 52F.

Section 52F goes on to say, “Any suspension imposed by the board shall remain in effect until the conclusion of the proceedings including judicial review thereof … .”

That’s not clear at all. The doctor gets a hearing in seven days, sure. But how long after that does the doctor have to remain in disgrace, without any way to make a living, if it turns out the suspension wasn’t necessary after all?

Consider the dentist who charged his patient $284,000 for dental work over a period of two years. The patient’s banker became concerned by the amount and frequency of the patient’s withdrawals and alerted the town’s elder-affairs officer. The officer interviewed the patient – who had no problem with our dentist or his charges – but concluded that this did seem to be an awfully high bill. He applied for a criminal complaint for fraud and assault and told the dental board that the dentist probably was charging for work he was not doing. The board issued a summary suspension.

Seven days later at the hearing, it came out that the patient was taking a particular medication with the occasional side effect of bone loss in the jaw and persistent and repeated infections, and the most appropriate way to treat the condition was through the frequent minor surgeries and bone grafts our dentist had been doing. The defense expert testified, “He may have saved her jaw.” The prosecution expert could not conclude that the treatment had not occurred, nor could he say that it fell below the standard of care or that the charges were excessive.

The hearing officer declined to issue a decision at the close of the evidence. She said she would comply with the regulations on administrative procedure. But the regulations don’t say how soon a decision has to issue. These officials are busy. They can take years to write a decision.

Usually, the dentist continues practicing during this time. Life goes on. But with a summary suspension, the dentist’s life and practice are also suspended. Even after the hearing officer does her thing, there are all these procedures, each with its own time limit, for a draft report, objections, a revised decision, and approval by the board. This process can drag on for 230 days after the draft decision issues, longer if someone obtains an extension.

The hearing officer wasn’t swayed by this line of argument. She wrote, “Although due process may require promptness, it also requires fairness, thoroughness, and clarity.” She said it could be several months before the draft decision was ready.

The dentist filed a petition with the SJC arguing that due process requires a prompt decision. The petition cited cases from the Supreme Court and from other states where delays of even fifty days were held unconstitutional. A Florida decision was exactly on point when it said, “When the state undertook to temporarily restrict the petitioner’s privilege to practice medicine it had an affirmative duty to grant a post-suspension hearing and one that would be concluded without appreciable delay.” Ampuero v. Dep’t of Prof’l Regulation, Bd. of Med. Examiners, 410 So.2d 213, 214 (Fla. Dist Ct. App. 1982).

The day before the SJC hearing, the draft decision issued and the board approved it. The SJC case was moot. We still don’t know if the ruling on a summary suspension hearing has to be made at the close of evidence, if it has to be reasonably prompt, or if it can just issue whenever the hearing officer has time.

The dentist got his license back, and the board declined to prosecute the principal complaint. The criminal complaint was dismissed.

The dentist got a hearing seven days after his suspension. It took 10 months to get his license back. In that time, he lost his office lease, his patients had dispersed, and the newspapers had trumpeted his disgrace. It took him nearly three years to return to practice.

Another question – we do have an answer this time – is what standard of proof the prosecution has to meet.

An eminent surgeon specialized in gastric bypasses for obese patients. He had done more than 6,000 of these operations over a 30-year career. He held important posts at the state’s best hospitals and had been director of surgery at one. In 2012, four of his patients had postsurgical infections – one of which was held not to be his fault. Of the remaining three patients, one died and two recovered.

The Board of Registration in Medicine imposed a temporary suspension based mainly on the opinion of an expert witness who was not identified. At the hearing, the doctor presented several witnesses who were identified. They analyzed each of the cases and opined that the doctor had met the standard of care and that his outcomes for the period in question exceeded the national averages. They spoke in glowing terms about his skills and learning. One said he would happily refer his own family to this surgeon. Another called him “the local father of bariatric surgery.”

You would think that all of this testimony – against hearsay from an anonymous witness2 – would make it impossible for the board to prove that the doctor posed an immediate and serious threat to the public. But then, you would also think that it was the board’s burden to prove its case.

Not so much. No one seemed to know who had the burden or by what quantum of proof. The magistrate admitted, “To be honest with you, I am unclear what the evidentiary standard is … . I’m really unclear at this point whether I should be weighing one expert’s opinion against the other, because the board’s approach seems to be basically, ‘We made out a prima facie case so issue the summary suspension.'” Complaint Counsel answered that this was an “appeal” of the board’s decision, and that the magistrate was required to uphold the summary suspension if it was based on substantial evidence.

That makes sense, right? That’s the standard for administrative appeals. Everyone knows that. The agency’s decision is upheld if it is based on “such evidence as a reasonable mind might accept as adequate to support a conclusion.” So that’s what the magistrate did. He held that the anonymous expert opinion provided substantial evidence to support the summary suspension.

It should have been obvious that there was no administrative decision that could be entitled to deference. All the board did was proffer charges. An administrative hearing has procedures to protect the rights of the defendant – procedures the board never used. There was no orderly presentation of evidence. There was no prehearing conference, no testimony under oath, no evidentiary rulings, no draft decision, no opportunity for an opening and closing, no record of objections and rulings, no record of which exhibits were admitted and which were not, no transcript or recording of the proceedings, and no attempt to settle the record. The magistrate was wrong when he said the board’s decision had support in “the record.” There was no record.

Even if it had used all the required procedures, the medical board does not have the power to conduct disciplinary hearings under G.L. c. 30A. That’s the province of the Division of Administrative Law Appeals (DALA). The magistrate was conducting the hearing, not the appeal. And the board had to prove its case by a preponderance of the evidence.

Later, at the SJC, the board stuck with its argument that the proper standard proof was substantial evidence. This, they said, was an easier standard to meet than preponderance. That’s just wrong. The two terms are not comparable. Preponderance of the evidence is a quantum of proof; substantial evidence is a standard of review.

When you conflate two dissimilar standards, you switch the burden of proof. Under a preponderance standard, the board has the burden to prove its case. Under a substantial evidence standard, the doctor has the burden to show that there was no evidence that could reasonably support the suspension. If the decision was based upon any evidence that a reasonable mind would accept, the board wins – even if a preponderance of the evidence strongly favors the doctor – even if the magistrate would have decided the case differently.

How about the argument that substantial evidence is a lower standard than preponderance? There is no lower standard! Preponderance of the evidence means “more likely than not.” What lower standard did the board want to use? Less likely than not? Kind of likely? Mezza mezza?

A single justice of the SJC reversed and clarified that the board had to prove its case at DALA by a preponderance of the evidence. So back to the magistrate it went. Under the correct standard, the magistrate found that the doctor was not a danger to the public after all.

The doctor was unjustly deprived of his license for three years. After all this time, nothing has been decided than whether the summary suspension was proper. We have not even reached the merits of the actual case. The doctor has lost hundreds of thousands of dollars in income and paid substantial legal fees. The Boston Globe and other papers have reported the downfall of the father of bariatric surgery. Even if, at the end of this road, the doctor’s license is restored, he will need recertification as a surgeon before he can return to work.

Given the danger of an unjustified deprivation for an indefinite time, it’s worth asking whether any board should have the power to summarily suspend a license. For example, when the SJC feels a lawyer poses a threat of harm to clients, it issues a notice to show cause and offers a predeprivation hearing. Why not have a similar procedure for doctors?

The answer is probably that a lawyer’s mistake can’t produce immediate physical harm the way a doctor’s mistake can, and lawyers can’t write drug prescriptions. When a doctor is dangerous, the board needs to act right away. But there should be better safeguards.

The licensing boards should enact regulations for an outside limit on summary suspensions. A board should be able to suspend a doctor for up to 30 days in an emergency – subject to the requirement of a hearing in seven days. If at the end of the 30 days, the board has not proven by a preponderance of the evidence in a G.L. c. 30A hearing that the doctor poses an immediate and serious danger, the suspension should cease by operation of law. If the boards do not act, then the legislature should. And until that happens, the courts should provide guidance about how long a doctor can be deprived of his or her license without proof of a serious and immediate threat.

The alleged danger to the public has to be balanced against the doctor’s constitutional rights. A licensing board should require convincing proof from witnesses who are identified and credible, and it should require documents that are authenticated and unambiguous.

And it should be the right kind of case – where the doctor is assaulting patients or selling drugs or staggering into surgery with bourbon on his breath. The conduct should be really bad and the doctor’s fault should be really clear. It should not be a case where there is a reasonable disagreement about what occurred or what the standard of care was or how high a bill should be.

Upon review, the administrative judge should allocate the burdens correctly and demand the proper quantum of proof. In cases where it is reasonably clear that the doctor does not pose a serious and immediate threat, an oral decision should issue at the close of evidence, with a written decision to follow within a week. In a close case, the written decision should issue in no more than thirty days. Health professionals need protection from the accusation that is weak on the merits, but can take years to fight while the professional has no income and her career withers away.

We have been asked to minimize footnotes and case citations. If you have questions about any legal principle I’ve discussed, contact me, and I’ll be happy to provide the authority. As long as we are down here together, let me thank Andrew Hyams, my co-counsel on one of the cases I’m discussing. He reviewed this article and made suggestions that improved it greatly.

The prosecutor told the magistrate that it is the Board’s normal practice not to disclose the identity of an expert until the discovery phase of the proceedings, “[s]o this is typical.” I don’t think this practice is normal or defensible, but the explanation seemed to satisfy the magistrate. The SJC reversed on other grounds and did not reach the question of whether hearsay from an anonymous witness can ever satisfy the standard for expert testimony.

posted by: joelrosen in For Medical Professionals | 2 Comments

EEOC Sues Massachusetts Medical Center Over Its Mandatory Flu Vaccination Policy

June 6th, 2016

Did a Massachusetts hospital discriminate against a worker who refused to get a flu shot? See what Joel said in this story from the Bloomberg Bureau of National Affairs.

Screen Shot 2016-06-06 at 4.49.03 PM

Religious Discrimination

EEOC Sues Massachusetts Medical Center Over Its Mandatory Flu Vaccination Policy

A Massachusetts hospital discriminated against a Christian human resources employee who de- clined a flu shot for religious reasons and who raised concerns about the alternative of wearing a face mask at work, the EEOC alleges in a novel lawsuit (EEOC v. Baystate Med. Ctr., Inc., D. Mass., No. 3:16- cv-30086, complaint filed 6/2/16).

According to the Equal Employment Opportunity Commission, Baystate Medical Center Inc. placed Stephanie Clarke on unpaid leave and then fired her because she sought a religious accommodation from its mandatory influenza immunization policy for employees. That violated federal anti-bias law, the agency alleges in a complaint filed June 2 in the U.S. District Court for the District of Massachusetts.

The hospital also fired Clarke because she failed to wear a face mask—which hospital policy required of all employees who refused immunization—at all times while working and complained that the hospital was discriminating against her, the EEOC asserts. Clarke never worked around patients and she occasionally pulled down the mask when people said they couldn’t understand her, according to the commission.

The lawsuit, filed under Title VII of the 1964 Civil Rights Act, involves a “unique issue” on which there re- ally is no binding case law, attorney Alan Phillips of Asheville, N.C., told Bloomberg BNA June 3. Although a Canadian arbitrator decided the issue in 2015, Phillips said “there’s no real court precedent” in the U.S. of which he’s aware.

Joel Rosen of Rosen Law Office in Andover, Mass., agreed that the case presents a somewhat novel issue. “There are a lot of cases” involving employee vaccination policies, “but they mostly involve whether it’s a bargained-for term in a union contract,” he told Bloomberg BNA June 3. He represents doctors and dentists in medical practices.

Policy Requires Vaccination or Mask. According to the complaint, Baystate’s immunization policy applies to all employees, even those like Clarke whose office was located in the hospital’s administrative services building and who weren’t required to have patient contact. Employees who failed to comply with the policy for religious or other reasons were required to wear a face mask or they were placed on unpaid leave, without job protection, until they complied with the policy or the flu season ended, the EEOC asserts.

Clarke was hired in December 2014 as a talent acqui- sition consultant and raised a religious objection to the policy in October 2015 when her supervisor told her and her fellow employees they needed to be vaccinated by the following month.

Clarke brought her concern about being unable to effectively communicate because of the mask to hospital management, but she was nevertheless suspended without pay after her supervisor noticed she wasn’t always wearing her mask over her nose and mouth. She complained of religious discrimination and a few weeks later was told she couldn’t return to work until she either received the flu vaccine or promised to wear the face mask at all times.

When she maintained her objection, the hospital told her it viewed her as having resigned.

“Federal law requires employers to fairly balance an employee’s right to practice his or her religion and the operation of the business,” Jeffrey Burstein, regional attorney for the EEOC’s New York district office, said in a June 2 statement announcing the lawsuit. “For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively,” he said.

Baystate Health’s director of public affairs, Benjamin Craft, told Bloomberg BNA in a June 3 e-mail that the Springfield, Mass.-based hospital doesn’t “comment specifically on pending litigation.” He added, however, that the safety of the patients “is our highest priority, so we take all reasonable steps to minimize any risk of transmission of infectious illness such as flu. That includes a requirement to be vaccinated against flu or wear a mask at all our facilities during flu season.”

“Cautiously Delighted.” Phillips noted that employee objections to wearing a face mask is a frequently recurring issue in the area of mandatory employer vaccination policies but ‘‘one the EEOC has struggled with.” He said he’s “cautiously delighted” that the agency has decided to pursue the case and hopes it results in some useful guidance from the court on the subject.

The case really boils down to whether the hospital reasonably accommodated Clarke under Title VII, he said. That standard is based on “mainstream medical science,” which favors the EEOC’s claims, Phillips said.

Face masks don’t actually work for the intended purpose because “they don’t block or filter viruses out of the air,” which is acknowledged by the federal Centers for Disease Control and Prevention, according to Phillips. Moreover, the flu vaccine itself has a low efficacy rate, he said.

“If the EEOC does a good job” in presenting its claims and looks to the Canadian arbitrator’s ruling, ‘‘the case should be a slam-dunk, no-brainer’’ for the agency, Phillips predicted.

Hospital Has Duty to Patients. But Rosen told Bloomberg BNA that the hospital’s first duty is to pa- tient safety. The court may find in its favor if it thinks Clarke’s request for accommodation may have compro- mised the hospital’s ability to protect patients from exposure to the flu virus, he said.

The hospital also may question the sincerity of Clarke’s alleged religious belief, Rosen said. The Bible doesn’t say anything about vaccinations, and the EE- OC’s complaint seems to say Clarke’s objection was based on her interpretation of the Bible, he said.

However, Rosen said he thinks a court would side with the EEOC on that issue.

Instead, the case likely will turn on whether the hospital made a reasonable effort to accommodate Clarke’s religious objection, he said. That will involve questions such as what conversations the hospital had with Clarke, whether it offered to let her work from home and whether it discussed allowing her to remove the mask when she needed to communicate with someone, Rosen said, noting there could have been a few potential accommodations.

If it’s true that Clarke didn’t work around patients, the hospital may have a tougher case to defend, he said.


Text of the complaint is available at

Download a PDF version of this article

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A Landmark Defense of a Dentist’s License

April 22nd, 2016

Here’s a story that appeared in Massachusetts Lawyers weekly about a case that changed the way the Board of Registration in Dentistry does business.  The main holding was that the Board cannot enforce OSHA regulations.  But we also argued that the Board’s regulations were so vague that dentists could not anticipate what conduct might result in a sanction.  After the Chadwick case, the Board issued new, more specific regulations.  The reported decision is here

SJC: dental license suspension invalid


The Supreme Judicial Court has found that the state Board of Registration in Dentistry did not have the authority to interpret, apply or enforce federal Occupational Safety and Health Administration standards regarding workplace safety.

The plaintiff dentist argued that the suspension of his license was improper because it was based on the board’s determination that he failed to comply with federal standards.

The SJC agreed.

Justice Robert J. Cordy, writing for the unanimous court, said the board’s finding conflicted with the “full purposes and objectives” of OSHA in two ways.

“First, it represents State interpretation, application, and enforcement of OSHA standards, constituting an improper assertion of concurrent jurisdiction,” Cordy stated. “Second, it represents direct and substantial State regulation of occupational safety and health issues for which Federal OSHA standards are in effect.”

The 37-page decision is Chadwick v. Board of Registration in Dentistry, Lawyers Weekly No. 10-175-11. The full text of the ruling can be found by clicking here.

Occupied field

Andover attorney Joel Rosen, who represented the plaintiff dentist, said the ruling will alter how state administrative agencies address occupational health concerns in Massachusetts.

“This is the first case I have seen where a state agency has tried to exert power in an area of exclusive federal jurisdiction,” Rosen said.

Rosen cited U.S. Supreme Court precedent finding that Congress clearly carved out exclusive jurisdiction in the field of occupational health and safety under OSHA.

“In oral arguments, a judge asked me why the state couldn’t just take the OSHA rulebook, erase the word ‘OSHA’ and write ‘Massachusetts,’” Rosen said. “And I said, ‘It’s not who wrote the rules; it’s who occupies the field.’”

He said that giving multiple agencies the authority to enforce OSHA rules would be unfair because different entities could interpret the rules differently, leaving licensed professionals uncertain about which standards to follow. Congress intended to avoid that very problem, which ended up harming his client’s career, Rosen said.

He acknowledged that the Board of Registration had authority to sanction the plaintiffs for certain public health regulations dealing with issues not covered by OSHA, but he disagreed with the board’s interpretation of the evidence presented on those issues.

“Either way, the board had no authority for 80 percent of what it accused him of, so query whether the punishment would have been the same,” Rosen said.

Assistant Attorney General Amy Spector represented the board. She declined to comment on the case.

Braintree attorney Frank J. Riccio, a former dentist, said the SJC drew a line between occupational safety and public safety.

“If patients were affected, then the public safety aspect would come into play and the state would not be preempted from acting,” he said.

Visit to the dentist

On July 10, 1981, the board issued plaintiff Stephen Chadwick a license to practice dentistry.

In November 2003 and April 2004, the board received two complaints from patients under Chadwick’s care. It subsequently dispatched compliance officers to inspect Chadwick’s offices on July 19, 2004, Sept. 27, 2004, and May 11, 2005. The inspections revealed a number of deficiencies beyond the ones alleged in the patient complaints, which were later dismissed by the board.

On May 13, 2005, the board directed Chadwick to show cause why his license should not be revoked or suspended pursuant to G.L.c. 112, §61. Chadwick filed his answer and request for a hearing on June 1, 2005.

In its decision, the board found that Chadwick failed to comply with OSHA standards, Centers for Disease Control and Prevention guidelines and Department of Public Health regulations “with respect to spore testing, annual office training, the proper handling and disposal of medical waste, proper maintenance and disposal of sharps [i.e., sharp items, such as needles, scalers, burs, laboratory knives, and wires], the maintenance of complete and accurate records with respect to hepatitis B inoculations, and basic exposure control protocols.”

The board concluded that his conduct “constitute[d] deceit, malpractice and gross misconduct in the practice of the profession in violation of G.L.c. 112, §61,” and “seriously undermine[d] the integrity of the profession of dentistry and the public’s confidence in the practice of dentistry.”

It suspended Chadwick’s license in Massachusetts for six months and imposed a five-year probationary period to follow the suspension.

OSHA never conducted an investigation or commenced any action against Chadwick.

Congressional intent

“Congress established a regime in which the federal government maintains or a state assumes through a statutorily prescribed process, responsibility for occupational safety and health issues,” Cordy said.

Having not set up a state workplace safety system via the OSHA process, Massachusetts officials retain authority over only those occupational safety and health issues for which no federal OSHA standard is in effect, he added.

“The board’s use of OSHA standards in its disciplinary proceeding falls outside [the state’s] limited powers,” Cordy wrote. “Where Congress intended for a single set of regulations to exist, the board, in effect, created two: the standards OSHA promulgates and the board’s interpretation of those standards.”

Thus, the SJC said the board’s decision regarding the plaintiff’s alleged violations of OSHA regulations “must be preempted as interfering with the methods by which the federal statute was designed to reach its goal.”

But the court’s analysis went one step further “because the act’s preemptive effect extends not only to a state’s interpretation, application, and enforcement of the OSHA standards themselves, but also to any state law that directly, specifically, and substantially regulates an occupational safety and health issue for which a federal OSHA standard is in effect.”

In other words, OSHA’s authority preempts any state rule that covers something OSHA already regulates.

The SJC acknowledged, however, that “the board may mandate compliance with OSHA standards in dental practices and sanction dentists for professional misconduct after OSHA has determined a violation has occurred.”

For more information about the judge mentioned in this story, visit the Judge Center at

CASE:Chadwick v. Board of Registration in Dentistry, Lawyers Weekly No. 10-175-11

COURT: Supreme Judicial Court

ISSUE: Is a state licensing board preempted from interpreting, applying and enforcing OSHA standards when disciplining a professional under its authority?

DECISION: Yes, because Congress clearly indicated its intent to confine state authority to occupational safety and health issues for which no federal OSHA standard exists

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Massachusetts Wage Act Overview

March 3rd, 2016


Get the Wages You Have Earned

Here are a few ways employees get cheated:

  • They don’t get all their wages at the end of every pay period.
  • They don’t get time and a half when they work over 40 hours.
  • They work on public works projects but don’t get paid the prevailing wage.
  • They don’t get paid commissions when they are due.
  • They don’t get paid in full on the day they terminate, including vacation pay.

If you’re one of those employees, the Massachusetts Wage Act may provide a way for you to get back three times your unpaid wages.  

Massachusetts has some of the strongest employee rights laws in the country.   If your employer has not paid you your full wages, commissions, vacation pay, overtime, or prevailing wages—and paid you on time—you can sue to get back three times your unpaid wages, and also your attorneys’ fees and costs.    

The first step is to file a wage complaint with the Massachusetts Attorney General’s Office.  You need to do this before suing your employer.  It is best to fill out this claim as soon as you learn you are being cheated, and it must be done within three years of the wage violation.  Otherwise, you waive your right to bring a wage claim.  You do not need to submit any documents, just follow the link below to fill out the online form.

The purpose of completing a wage complaint is to give the Attorney General’s Office the opportunity to investigate your claim and get back your lost wages for you.   If the investigation results in payment, you’ll get your wages, but not treble damages and attorneys’ fees.  And the investigation can take a very long time.  That’s why you may decide to file a lawsuit. 

After you fill out the wage complaint, you can ask the Attorney General’s Office for a “Right to Sue” letter.  When the letter arrives, you can file a lawsuit against your employer in court.  At this point in the process, or earlier, you may want to find an attorney to help you with your case.  

Because the statute is so punitive to employers, our firm often takes on wage claims on a contingency fee basis.  This means that we will bring the lawsuit on your behalf, in exchange for payment from the settlement you receive from your employer if you win. 

The Rosen Law Office has a great deal of experience bringing successful Wage Act lawsuits.  In the last few years, we have helped a number of employees who were being cheated out of their proper overtime wages, prevailing wages, or both, obtain satisfactory settlements with or judgments against their employers.  If you think you’ve been cheated, you should call for a free consultation.    

posted by: joelrosen in Announcements, BUSINESS, BUSINESS ADVICE & LITIGATION, EMPLOYMENT & DISCRIMATION | No Comments

Can an Employer Force Workers to Get Flu Shots?

December 3rd, 2015

Here’s a story Joel wrote for Massachusetts Lawyers Weekly. We argue that there are situations in which employers can and should require healthcare providers to be vaccinated for the flu in order to protect patients. If you are thinking of implementing such a policy, feel free to give us a call at 978-474-0100.

Can health care workers be required to get flu shots?



If you work at a hospital in Massachusetts, you have to get a flu shot — unless you don’t want to. That’s the confusing state of the law around 105 CMR 130.325.

The regulation requires hospitals to ensure that anyone who works there gets a vaccination. But employees are excused if the vaccine would be detrimental to their health or against their religious beliefs — or, “if the individual declines the vaccine.”

Last year, Brigham and Women’s Hospital (BWH) adopted a mandatory vaccination policy. Workers had to get a flu shot unless they received a medical or religious exemption. There was no other way out. Anyone who refused could be terminated.

The Massachusetts Nurses Association sought declaratory relief in Superior Court, arguing that the policy was illegal under Section 130.325. It said the regulation didn’t just allow workers to opt out of the state’s requirement; it provided an affirmative right not to be vaccinated.

BWH was able to get the suit dismissed, saying that it had not implemented the policy yet and the question wasn’t ripe for adjudication. For the time being, nurses at BWH have a choice of getting a flu shot or wearing a mask at work.

While the lawsuit didn’t answer the question it raised, I think the hospital has the better argument. The purpose of the regulation is to get workers vaccinated, not to prevent employers from enacting policies with the same goal. The fact that the state has chosen to let workers opt out of this particular regulation does not create a right to decline vaccination generally.

In response to the nurses’ suit, the Department of Public Health issued draft regulations that made it clear that 130.325 was not intended to prevent employers from implementing mandatory flu vaccine policies. Before the regulation was finalized, Gov. Patrick left office, and the clarification was put on hold.

A reasonable rule
When you take the regulation out of the mix, the question is just one of employment law. If the worker is an employee at will, the employer can impose any reasonable rule.

It’s not unusual to require vaccines for health care workers. Neonatal personnel in Massachusetts need to be immune to measles and rubella under 105 CMR 130.626.

In states such as New York, all hospital workers need those immunizations. And it’s very common to require immunizations where the employee can only opt out using a specific written form. That’s what OSHA requires to decline hepatitis B shots. And under 130.325, anyone who declines must sign a statement that he or she has been informed of the vaccine’s benefits.

At least 15 states have some requirement that health care workers get flu shots. The impetus comes from the Centers for Disease Control, which recommends that all health care workers get vaccinated every year. That’s mainly to prevent them from passing the disease to their patients.

Thousands of people die from the flu each year. CDC estimates are imprecise, but there were years when close to 40,000 people died from influenza. The flu poses a particular risk to infants, older adults, pregnant women, people with compromised immune systems, and people with lung or heart ailments — in short, the kind of people who tend to be in hospitals. And a worker can pass the flu to those people even before the worker knows he or she is sick.

In holding that a mandatory vaccination policy was subject to bargaining, the 9th U.S. Circuit Court of Appeals noted: “Studies have shown that staff-to-patient flu transmittal is prevalent in hospitals and other health care facilities because about half of those infected with influenza are asymptomatic and because as many as 70% of health care workers continue to go to work even when experiencing flu symptoms.”

In 1998, 27 cancer patients became ill with the flu in the bone marrow unit of Memorial Sloan-Kettering Cancer Center in New York. Two died. The outbreak was traced to the workers in the unit. Only 12 percent had been vaccinated.

There have been several outbreaks of flu in neonatal intensive care units. One frequently cited study traces the infection to health care workers in which 19 babies became ill and one died.

The American Hospital Association supports mandatory flu shots. So do the National Business Group on Health, National Vaccine Advisory Committee, American Academy of Pediatrics, American College of Physicians, American Hospital Association, Department of Defense and National Patient Safety Foundation.

OSHA recommends flu shots for health care workers, but does not support a mandatory vaccination program.

Wearing masks
The usual compromise is to require workers to wear masks if they don’t take the vaccine. Masks do prevent the spread of droplets that can contain viruses. But viruses are pretty small; they can pass right through the pores in the masks.

“No studies have definitively shown that mask use by … health-care personnel prevents influenza transmission,” the CDC says.
Experts say it is better to prevent the worker from contracting the disease than trying to prevent a sick worker from spreading the disease.

“There’s not good science to recommend masking,” said DeAnn McEwen, of the National Nurses United union. “Masking is also targeting the individual for exercising her rights to refuse medical treatment and, I think, violates privacy laws. It’s not good policy for hospitals, for patients seeing everyone wearing masks — it’s a facade of protection that doesn’t really benefit the public.”

It may be that hospitals are hoping that the masks will be so uncomfortable that workers will just give in and take the shot, speculated David LaHoda of the OSHA Healthcare Advisor. He quoted one consultant as saying the masks are “like wearing a scarlet letter” and “the employees hate it.”

Collective bargaining
Many hospitals and other health care organizations have decided to make vaccination mandatory. And studies show these policies work better than state regulations.

Some hospitals — such as Loyola in Illinois, Children’s Hospital of Philadelphia and Johns Hopkins in Maryland — have managed to immunize virtually the entire staff with these policies. By now, more than 150 hospitals and health care systems across the country have mandatory vaccination policies. Typically the policies provide for religious or medical exemptions.

As mandatory vaccination becomes more common, lawyers for infected patients will argue that vaccination of all workers is the standard of care. Hospitals with high rates of noncompliance will be at risk. Nurses may sue if vaccination is required; patients may sue if it is not.

While the Massachusetts regulation probably doesn’t bar a mandatory vaccination policy, there are other factors to consider. The first is that this requirement may be a change in working conditions.

The National Labor Relations Act says that a flu vaccination is a mandatory subject of bargaining. Unions in New York and New Mexico have obtained injunctions preventing hospitals from firing workers who decline the vaccination.

In 2007, the 9th Circuit upheld an arbitrator’s ruling barring Virginia Mason Hospital from unilaterally implementing mandatory immunization. The decision was based on whether the arbitrator’s interpretation of the union contract was plausible. It does not answer the question for all time. Virginia Mason Hospital v. Washington State Nurses Ass’n, 511 F3d 908 (2007).

Thus, a few years later, the National Labor Relations Board made the opposite finding and held that Virginia Mason was not required to bargain with the union over a policy that required nurses to be immunized or wear masks when interacting with patients.

The board found that the union “clearly and unmistakably” waived its right to bargain when it agreed to a broad management rights clause in the collective bargaining agreement.

So there’s an open question whether an employer can require its union workers to be vaccinated. The answer is going to depend on what it says in the collective bargaining agreement and how the tribunal balances collective bargaining rights against patient safety.

Conscientious objectors
None of the policies require people to get a flu shot if it will make them sick. The CDC says people with life-threatening allergies to any ingredient in the vaccine — such as gelatin, antibiotics or eggs — should not get it.

These allergies may be considered handicaps under state or federal law, and the employer should enter into a dialogue about what accommodations would be appropriate. For example, if the employer does not think masks will protect patients, it could assign noncompliant employees to wards where patients are not at great risk of infection.

We have all heard the term “conscientious objector.” It first came into use to describe parents who resisted Britain’s Compulsory Vaccination Act of 1853. It distinguished people with moral scruples from careless parents who had not bothered to vaccinate their children. And today, there are still people who have a moral or religious objection to the vaccine.

Typically, people who object to medical care on religious grounds don’t end up as doctors or nurses. So the religious objections tend to be like those in Chenzira v. Cincinnati Children’s Medical Center, No. 11-917 (S.D. Ohio, Dec. 27, 2012), in which an employee successfully argued that veganism was a sincerely held belief akin to a religion, which excused a worker from accepting a vaccine that contained egg protein. The decision was a memorandum on a motion to dismiss. Under that liberal standard, the court held that the employee’s claim was “plausible.”

Until there is a dispositive opinion, vaccination policies typically allow for religious objections under general principles against discrimination.

An employer who plans to implement a mandatory vaccination policy should consider whether there is a collective bargaining agreement and whether it permits this requirement.

The policy should make vaccination available at no charge, should provide information on the risks and benefits of the vaccine, and should have exceptions for people who decline the vaccine for religious or medical reasons. For those people who object, the employer should determine what accommodations are reasonable.

At the very least, unvaccinated health care workers should wear masks, and there may be populations of patients for whom the risk of infection is so great that masks are not sufficient. In those cases, the workers should be reassigned to care for less susceptible patients or should be placed on leave until the flu season is over.

Joel Rosen is the principal of Rosen Law Office in Andover. He represents doctors, nurses and health care organizations.


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Can an Employer Force Workers to Get Flu Shots?

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Burden Upped for Temp Suspension of Doctors

June 29th, 2015

Here’s a story that appeared in Massachusetts Lawyers Weekly about the case that has changed the standard for summary suspensions.  The case concerns the Board of Registration in Medicine, but it will affect the dental, nursing, and other state licensing boards.

Burden upped for temp suspension of doctors

rosen A temporary suspension by the Board of Registration in Medicine must be based on the preponderance of the evidence, not merely substantial evidence, a single justice of the Supreme Judicial Court has ruled in a matter of first impression.

A Division of Administrative Law Appeals magistrate concluded that a temporary suspension, also known as a summary suspension, is warranted if supported by substantial evidence that the licensee poses an immediate and serious threat to the public health, safety or welfare.

But Justice Robert J. Cordy was not convinced.

“While I agree that the standard for appellate review by courts of the adequacy of the evidence supporting administrative decisions is ‘substantial evidence,’ I disagree that that is the standard to be applied in the first instance,” Cordy wrote. “While due process requirements may be lessened in the context of a temporary suspension, resulting in shorter time frames and the consideration of the available evidence in less than pristine or complete form, such a suspension must still be based on the preponderance of the evidence actually considered.”

Cordy remanded the matter to the administrative magistrate and medical board for reconsideration.

The five-page decision is Randall v. Massachusetts Board of Registration in Medicine, Lawyers Weekly No. 10-095-15. The full text of the ruling can be found at

Absurd outcomes

Bariatric surgeon Dr. Sheldon Randall appealed his temporary suspension by the medical board to the SJC’s single justice session and was represented on appeal by Andover’s Joel Rosen as well as Andrew L. Hyams, of Kerstein, Coren & Lichtenstein in Wellesley.

Both praised Cordy’s willingness to challenge a status quo that, at times, has resulted in absurd outcomes when board decisions to temporarily suspend a physician are reviewed by the Division of Administrative Law Appeals, they said.

“It used to be that a physician could be summarily suspended, go to a hearing, prove by a preponderance of the evidence that he or she was not a danger to the public, and still lose the case,” Hyams said.

That occurred because administrative magistrates were using the substantial evidence standard, and thus upholding the board’s summary suspension decisions if they could find any reasonable evidence to support them, Rosen explained.

According to state regulations for physician discipline, the Board of Registration in Medicine can summarily suspend someone if it “determines that a licensee is an immediate and serious threat to the public health, safety, or welfare,” but also must “provide a hearing on the necessity for the summary action within seven days after the suspension.” If upheld at that hearing, the temporary suspension remains in effect pending a hearing on the merits of the allegations against the licensee and a final decision.

Rosen acknowledged that, when appealing a final determination of the board, substantial evidence is the correct standard for review. But he and other administrative law attorneys told Lawyers Weekly that the substantial evidence test also has erroneously been applied for decades at the administrative hearings required within seven days of a temporary suspension.

In other words, administrative magistrates were treating the hearings required to adjudicate, for the first time, the necessity of summary suspensions as if they were appeals.

Hyams, former general counsel to the board, said that inappropriately shifted the burden of proof, at the very outset of a disciplinary matter, to physicians faced with the difficult burden of trying to prove a negative: that they are not a threat.

“When you think about it, it’s unimaginable that the board wouldn’t have the burden before such draconian relief could be imposed,” said Bruce A. Singal of Boston’s Donoghue, Barrett & Singal.

Not all lawyers are pleased with the decision, however. Medical-malpractice plaintiffs’ lawyer Benjamin R. Novotny said Cordy’s ruling could make it harder to win cases against doctors who would have been temporarily suspended if not for the heightened standard of proof.

“It’s potentially a hit on a case-by-case basis,” the Lubin & Meyer attorney said. “But looking overall at patient safety, it could be a bigger impact for those who never know the board had substantial evidence but couldn’t meet the new preponderance of the evidence standard. … How do you explain to a patient that there was substantial evidence impacting patient safety, but the board couldn’t do anything about it?”

Rosen said he is glad the temporary suspension mechanism exists to deal with truly dangerous situations. He also noted that, in the most egregious of situations, doctors often voluntarily agree not to practice while their disciplinary cases are pending.

“It’s a good thing that this process exists,” Rosen said. “But for somebody like Dr. Randall, there’s a question about whether he deviated from the standard of care or whether he just had a couple bad results. More and more in recent years, the board has started suspending people without any due process at all.”

The board handed down no more than two temporary suspensions a year from 2009 to 2013, according to the most recent annual report on the board’s website. A review of disciplinary records shows that there were five temporary suspensions in 2014 and two already in 2015.

But those numbers do not capture the full impact of the board bearing a low burden of proof to justify a summary suspension.

“One of the most abusive practices of the board has been the threat to seek summary suspension — and the attendant publicity — unless the doctor voluntarily agrees to stop practicing,” said Singal, a former member of the Board of Registration in Medicine. “What this decision should do is give people perhaps more courage to challenge the board when confronted with that kind of draconian threat.”

David M. Gould, of Ficksman & Conley in Boston, said that is a huge win for doctors facing allegations because “a summary suspension can be a career-ender, even if a person is ultimately exonerated.”

James P. Rooney, the first administrative magistrate at the Division of Administrative Law Appeals, said he did not expect Cordy’s decision to cause “any particular strain” on what DALA does.

“It wasn’t entirely clear what the standard should be on the burden of proof in these types of cases,” he said. “Now that we know, we’ll follow that.”

Board of Registration in Medicine officials would not discuss the Randall case while it is pending.

Grave allegations

The board accused Randall, 63, of failing to meet the standard of care in his treatment of six patients, three of whom died.

In March 2012, Hallmark Health System imposed a precautionary suspension of Randall’s privileges pending its investigation into one of the patient deaths.

The following month, Hallmark terminated Randall’s staff membership and revoked his clinical privileges, citing the patient death and “other areas of broad concern that called into serious question [Randall’s] ability to abide by the principles and display the integrity required to be a member of the Hallmark Health Medical Staff,” according to the board’s statement of allegations against Randall.

In early 2013, MetroWest Medical Center investigated Randall’s care of two patients, one of whom died. Following the review, Randall was required to clear some procedures with the hospital’s chair of surgery or have a second surgeon in attendance during operations.

The board filed its first statement of allegations against Randall on Aug. 16, 2013, and summarily suspended him that same day.

The board’s specific allegations against Randall included that he insisted on performing open gastric bypasses instead of less risky laparoscopic gastric bypasses; ordered the transfer of a medically unstable patient who died of sepsis during the transport; performed medically unnecessary transfusions; failed to recognize infections; failed to address complications in a timely manner; and mistakenly placed a gastronomy tube in a patient’s colon.

A hearing on Randall’s temporary suspension was held on Oct. 1, 2013, and a magistrate recommended that it be upheld on June 10, 2014. The Board of Registration in Medicine accepted the recommendation on Oct. 22, 2014.

Randall then appealed his temporary suspension to the SJC.

Randall, now represented by Paul R. Cirel of the law firm Collora, denies that he failed to meet the standard of care.

“At best what these cases present are known complications in a particular kind of surgery, and the evidence already available is that Dr. Randall’s complication rate is below the national average,” Cirel said.

Randall reportedly performed more than 6,000 successful weight-loss operations over the course of his career, and Cirel noted that surgery programs he oversaw at local hospitals were recognized nationally for excellence. The Boston lawyer said Randall looks forward to a new hearing at which a magistrate will decide whether his summary suspension is supported by a preponderance of the evidence.

Try again

On appeal, Cordy ruled that Randall’s case presented an issue of first impression.

“The one matter of substance that has not apparently been resolved by our courts, and is therefore worthy of further discussion at this point, relates to the standard of proof necessary in a summary/temporary suspension proceeding of this nature,” Cordy wrote.

The justice noted that Randall initially agreed that substantial evidence was the correct standard at his Division of Administrative Law Appeals hearing, before later arguing that it was inadequate.

“While it seems apparent that this argument was waived prior to the June 14 recommended decision by the magistrate, it was raised promptly thereafter, and was essentially before the Board when it made its final decision,” Cordy wrote.

Cordy agreed that substantial evidence was the standard to be applied when administrative decisions are appealed to the courts, but said it was not appropriate when a matter is being adjudicated for the first time.

“Insofar as this ‘temporary suspension’ has been in effect for more than eighteen months without apparent resolution of the underlying allegations, it is appropriate to revisit the findings and conclusions of the magistrate and the Board at the time of the final decision of temporary suspension, based on the preponderance standard of evidence,” Cordy wrote. “While the record may well be adequate to support such a standard, the matter is remanded for consideration on this ground.”


Randall v. Massachusetts Board of Registration in Medicine

THE ISSUE: Can a temporary suspension by the Board of Registration in Medicine be based merely on substantial evidence — rather than a preponderance of the evidence — that the licensee poses an immediate and serious threat to the public health, safety or welfare?


DECISION: No (Supreme Judicial Court)


LAWYERS: Joel Rosen of Andover, and Andrew L. Hyams of Kerstein, Coren & Lichtenstein, Wellesley (plaintiff), Board of Registration in Medicine (defense)



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Massachusetts Lawyers Weekly – Burden Upped for Temp Suspension of Doctors

posted by: joelrosen in Announcements, For Medical Professionals | No Comments

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