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 www.massjudgecenter.com.

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

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

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.


Download a printable PDF version of this article:

Can an Employer Force Workers to Get Flu Shots?

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

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 masslawyersweekly.com.

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)



Download a printable PDF of this article:

Massachusetts Lawyers Weekly – Burden Upped for Temp Suspension of Doctors

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

Dental Board to Start Random CEU Audits

June 10th, 2015

dentThe Board of Registration in Dentistry is going to start doing random audits to make sure dentists and hygienists have met their continuing education requirements (“CEUs).  

In the past, the only way the Board knew if someone was up to date on their CEUs was if there was a complaint.  In the course of the investigation, they would routinely request proof of attendance at the various required courses.  Starting in the fall, the Board will do random audits.  The goal is to hit 5 percent of the licensed dentists and hygienists every year.  

When dental professionals renew their licenses, they have to certify that they have satisfied their CEU requirements.  Dentists have to take 40 CEUs every two years; hygienists need 20 units.  Dentists are required to include courses in infection control and pain management.  It’s easy to miss the pain-management requirement, because it’s not in the regulations.  You can find it here.  The dentist or hygienist should also take a CPR course. 

Dentists who fall short are in double-trouble.  They’ve violated the CEU requirement, and they’ve also lied on their license renewal form.  If there are no other violations, the Board will often impose “stayed probation.”  That’s a nondisciplinary sanction.  If the dentist makes up the missing credits and stays out of trouble for a year, there won’t be any indication of public discipline when someone looks up the license, and there won’t be any report to the national data bank.  But the investigators may find some other concern, and when the issues start to add up, the sanction can be more severe.

The current license renewal cycle runs from April 1, 2014-March 31, 2016.   The Board is going to be more conscientious in checking CEUs than it was in the past, so make sure you are more conscientious about taking all your courses.

posted by: joelrosen in ADMINISTRATIVE LAW, Announcements, BUSINESS, BUSINESS ADVICE & LITIGATION, For Medical Professionals | No Comments

The Dental Board’s First Look at Your Case

May 12th, 2015

Here’s an article Joel wrote for the Journal of the Massachusetts Dental Society in the summer of 2014. Since then, the Board has decided to schedule cases in advance, and you’re told where your case will fall in the order. But otherwise this is a fair summary of what you can expect at your first trip to the Board of Registration in Dentistry.


Screen Shot 2016-01-23 at 5.55.28 PM

Let’s say a patient has complained. You’ve received a letter from the Board of Registration in Dentistry (BORID). Your lawyer has responded with a complete explanation, and you’ve kind of forgotten about the whole thing. Then one day, you get this letter telling you that in one week the Board will meet in executive session to consider the complaint.

There’s no reason to panic. The letter is not necessarily bad news, and at worst, the Board’s new procedure will give you a better understanding of your case.

When the Board gets a complaint, it generally asks the dentist to respond and provide relevant documents. After the dentist replies, it can be months before anything happens. But eventually, the Board has to decide what to do about the complaint, and that’s when the letter will come.

In the past, the Board dealt with most complaints in open session. These would be listed on the agenda. But dentists don’t always consult the Board’s website and might not have known their case was on. The next thing the dentist would hear was either that the case was dismissed or that the Board was taking it further.

Things are different these days. Now, you are more likely to get a letter saying that the Board is going to consider the complaint against you in “executive session”—a closed hearing. You have the right to be present, to speak on your own behalf, and to make a recording or transcript. You may bring a lawyer. The lawyer is not entitled to participate actively. His or her main job is to prepare you, observe the proceedings, and advise you about your rights.

The open meeting law allows the Board to meet in executive session to discuss “the discipline or dismissal of, or complaints or charges brought against . . . [an] individual.” You would think, from this, that the Board is concerned with protecting the reputation of a dentist who may not have done anything wrong. And the closed sessions do serve that purpose. But the main goal is to preserve patient confidentiality.

It’s impossible to discuss your treatment of a patient without a risk that protected health information will be disclosed. When a specific patient isn’t involved—let’s say your dental hygienist forgot to renew her license—the Board will discuss the matter in open session.

What to Expect at the Board Meeting

The meeting opens at 8:30 a.m. at BORID’s headquarters at 239 Causeway Street in Boston. Cases are called in the order that people sign in, so get in line early and try to sign up about 15 minutes before the proceedings begin. The Board meets first in open session to discuss general business. After an hour or two, there will be a motion to enter executive session, and the public will leave the room. Depending on when you signed in, you may have an hour or more to wait.

When your case is called, you and your lawyer will sit at a desk near the Board’s conference table. You will have discussed in advance what you will say, if anything. The Board investigator will make a presentation about what regulations you may have violated and what evidence there is.

Although you’ve already received some indication of what your case is about, the investigator may have discovered facts that will come as a surprise to you. The executive sessions are recorded, so if you choose to speak, those words may come back to haunt you. If something surprises you, it’s probably better to remain silent than to blurt out an ill-considered explanation.

Although an appearance before a licensing board can be nerve-wracking—try not to worry. The large majority of cases don’t result in public discipline. Dentists frequently are in and out of the boardroom in a few minutes, smiling and shaking hands with their lawyers.

By the Number

Jeffrey Mills, the Board’s assistant executive director, was kind enough to provide the following statistics from the Board’s files regarding the period between June 1, 2013, and May 31, 2014. The Board closed 170 complaints during that time. Of these:

• 26 were dismissed

• 22 were dismissed with an advisory letter

• 69 resulted in stayed probation (non-disciplinary)

• 10 resulted in a reprimand

• 35 resulted in probation

• 5 resulted in suspension (one was summary suspension)

• 3 resulted in voluntary surrender

Only 32 percent of the complaints resulted in public discipline, which is reportable to the National Practitioner Databank. Fewer than 5 percent of the complaints resulted in the temporary or permanent loss of a license. There was only one summary suspension. That happened to be my case, and it was dismissed after a hearing, so really there were only four suspensions, or a little more than 2 percent of the cases.

Four Reasons to Show Up

With few cases resulting in serious discipline, you may wonder whether you should even bother to show up. I think you should, for four reasons.

First, the complaint you responded to may not have given you all the information about your case. The investigator may have discovered something more troubling than whatever was bothering the patient. So a complaint that seems frivolous may result in a serious charge.

Second, and perhaps most important, the investigator’s presentation is your best chance to understand what regulations you may have violated and to hear and see the supporting evidence. This information will help you inform your expert witness and prepare for a hearing. You can also see what the Board thinks of your case. The members may not agree whether there really was a violation and how serious it was. If the Board thinks it’s appropriate to impose a sanction, you will hear why they chose the particular discipline they did. You will have a sound basis to discuss with your lawyer whether to accept the discipline offered or ask for a hearing.

Third, even the Board’s investigators are capable of making a mistake. If there’s an obvious error in the investigator’s presentation, this is your chance to correct it before things progress—if your lawyer thinks that’s wise.

Fourth, and one of the best reasons to attend, is that you don’t have to wait to find out what happened. Many times, the investigator will say a couple of sentences, and the chair will ask, “Does anybody want to open a case?” If no one responds, there will be a motion to dismiss the complaint. It’s worth being in the room to hear the words, “The motion carries.”



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Journal Summer 2014_Risk Management(click to download)

posted by: joelrosen in ADMINISTRATIVE LAW, BUSINESS, BUSINESS ADVICE & LITIGATION, For Medical Professionals | No Comments

Prenuptial agreement invalid under ‘second look’ test

January 30th, 2015

joel-rosen By: Pat Murphy January 28, 2015

A prenuptial agreement that would have limited a wife’s share of marital assets in the parties’ divorce to a dilapidated home purchased during the marriage could  not be enforced, the Appeals Court has found.

The husband argued that, under the plain terms of the couple’s agreement, the wife was entitled

only to the marital home, regardless of its condition, in the division of marital property.

But the court was persuaded that, under the “second look” test adopted in 2002 by the Supreme Judicial Court in DeMatteo v. DeMatteo, a change of  circumstances during the parties’ marriage had rendered the prenuptial agreement unconscionable and unenforceable.

“If the agreement is enforced, the wife, who makes $300 per week, would be left without sufficient property and appropriate employment to support herself,” Judge Frederick L. Brown wrote on behalf of the court. “The [trial] judge’s determination that enforcement of the agreement would be unconscionable was not in error.”

The decision affirmed a judgment by Probate & Family Court Judge Amy L. Blake awarding the wife $400,000 for what the Appeals Court characterized as a “principal residence substitute.” The seven-page decision is Kelcourse v. Kelcourse, Lawyers Weekly No. 11-007-15. The full text of the ruling can be found by clicking here.

Wake-up call?

Joel Rosen of Andover represented the wife, Rebecca Kelcourse. Rosen rejected the notion that

the decision in his client’s favor is an indication that Massachusetts courts are less inclined to

enforce prenuptial agreements.

“Prenuptial agreements are pretty strictly enforced in Massachusetts,” Rosen said.  “You have to

make a very strong showing before a court is going to invalidate one.”

He added that his client’s case is instructive because it illustrates just what it takes under theDeMatteo standard before courts will substitute their judgment for the contract the parties enter.

“It’s a pretty high bar,” Rosen said. “Either you have to prove that circumstances have changed so much that they are beyond what the parties contemplated when they signed the agreement, or you have to prove that the wife is essentially going to be impoverished.”

The husband, Lawrence Kelcourse, was represented by William M. Driscoll of Chelmsford. Driscoll did not respond to a request for comment prior to deadline.


But Wellesley family law attorney David B. Feldman called Kelcourse a “very significant”

decision on the enforceability of prenuptial agreements.

“Every few years the courts need to give lawyers a wake-up call to the fact that, if the agreement is unconscionable at the time one of the parties seeks to enforce it, the courts won’t enforce it,” Feldman said.

The case underscores the point that the Probate & Family Court first and foremost is a court of equity, he said.

What attorneys need to take from Kelcourse is the understanding that a prenuptial agreement is not automatically enforceable just because both sides had an attorney and both sides entered into the contract freely with full disclosure of assets, Feldman said.

“Even when on the face of it the agreement was properly done, it’s not going to be enforceable if it’s totally unfair,” he said.

Cambridge lawyer Rackham Karlsson said the Appeals Court ruling illustrates that, if the second look shows that a party is not going to be able to support him or herself post-divorce, agreement is going to fail.

“One of the things that [the SJC] was considering in determining in whether a prenuptial agreement was valid in DeMatteo was the public policy of not putting people on public assistance,” Karlsson said. “That public policy overrides strict adherence to the letter of the agreement.”

Lawyers may be fooling themselves if they think they can draft a prenuptial agreement that will necessarily hold up under each and every circumstance, he said.

“The best we can do is express the intent [of the parties]. A prenuptial agreement has concrete terms, but those concrete terms are grounded in an intent. If the circumstances at the time of divorce are too far out of alignment with that intent, then the courts will try to step in and fix it,” he said.

Money pit

The husband is a businessman who owns and operates a marina. For five years preceding the

parties’ marriage in July 1991, they lived together in a three-bedroom residence in the marina. At the time of the marriage, the husband was in his 40s, while the wife was in her mid-20s and pregnant with the second of the couple’s three children.

Several months before their wedding, the parties rented a home in Amesbury. The husband allegedly promised the wife at the time that the rental would be temporary.

Four days before the wedding, the parties executed a prenuptial agreement that waived the husband’s and the wife’s interest in all premarital property separately owned by the other spouse. Each party was represented by counsel.

The agreement further provided that any principal residence purchased during the marriage would be deemed the wife’s separate property. The agreement made no provisions for either the payment or waiver of spousal support.

The landlord of the Amesbury home eventually agreed to sell the property. A home inspector hired by the parties determined that the house needed an estimated $80,000 to $100,000 in repairs. The wife claimed that she agreed to buy the home based on the husband’s promise that he would secure funding to make the necessary repairs.

With the wife’s consent, the parties purchased the home in 2006 for the discounted price of


Repairs were never made to the home, and the couple separated in 2010, with the husband moving back to the marina residence.


Including the residence, the marina was valued at $1.7 million. While the marina was unencumbered by a mortgage, the marital home in Amesbury was subject to a $256,000 mortgage.

Moreover, the house had deteriorated further since the parties had purchased it in 2006. In addition to having boarded-up windows, chipped paint and hanging utility wires, the property was rodent-infested and had a black mold problem. It was later estimated that the home needed

$300,000 in repairs. An appraisal conducted after separation determined that the home was worth

$190,000, which was $66,000 less than the amount owed on the mortgage.

The wife filed for divorce in August 2010. The trial judge awarded the wife, who had employment income of $300 a week, $1,352 a week in alimony.

However, Rosen said because the wife’s alimony terminated upon the husband reaching full

retirement age, and the husband was 65 at the time of trial, his client was receiving no alimony.

‘Second look’ at prenup

The trial judge also awarded the wife $400,000 in the division of marital assets.

The husband contested that award on appeal, relying on the language of the parties’ prenuptial


The Appeals Court concluded that the $400,000 award was justified under the “second look” test as a “substitute” for the principal residence the wife was entitled to under the terms of the

parties’ agreement.

Under DeMatteo, a prenuptial agreement valid at the time of execution will not be enforced at the time of divorce if, due to a change of circumstances, enforcement would leave the contesting spouse without sufficient means of support.

The trial judge found that the parties’ prenuptial agreement was valid at the time of execution, but found it unenforceable upon taking a second look in their divorce case. Specifically, the judge found that that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated in 1991, and that enforcement of the agreement would, therefore, be unconscionable.

The Appeals Court concluded that there was sufficient evidence to support the trial judge’s determination that the prenuptial agreement was unenforceable under the second look standard. “Crucial to this finding is that enforcement of the agreement would, as the [trial] judge noted, leave the wife ‘a house with negative equity, with documented structural issues, with documented code violations, and with needed repairs and/or renovations approximated to be upwards of $300,000,’” Brown wrote.

With the prenuptial agreement deemed unconscionable and unenforceable, Brown next examined

the trial judge’s consideration of the statutory factors for dividing the marital property.

Brown concluded that the trial judge properly applied the factors enumerated in G.L.c. 208, §34 in awarding the wife $400,000.

“The [trial] judge considered, inter alia, the wife’s occupation, opportunity for future income, age, and contribution as a homemaker, as well as the needs of the couple’s dependent children,” Brown wrote. “We find no abuse of discretion, or other error of law, in the division of assets.”


CASE: Kelcourse v. Kelcourse,Lawyers Weekly No. 11-007-15

COURT: Appeals Court

ISSUE: Was the “second look” test properly applied to declare unconscionable and unenforceable a prenuptial agreement that limited a wife’s share of marital assets to a dilapidated home purchased during the parties’ marriage?






posted by: joelrosen in BUSINESS, BUSINESS ADVICE & LITIGATION, FAMILY LAW | No Comments

What to Do When Subcontractors and Suppliers Ask the Owner for Payment

September 15th, 2013

Stacks of One Hundred Dollar Bills with Small House.When owners discover that their contractor has not paid subcontractors and suppliers, anxiety immediately sets in. Contractors who are not adept at running their businesses end up with cash flow problems and operate on credit. The situation then catches up with them and they stop making payments. Suddenly the owner finds himself being contacted by subcontractors and suppliers who are demanding payment.

The law in Massachusetts is clear; a subcontractor or supplier can only collect against an owner if it records a properly perfected mechanic’s lien. Then he can only expect payment to the extent that money is owed to the contractor at the time the lien is filed. That said, the owner has the right to finish the job. If there are no funds left, the subcontractor or supplier can only go after the general contractor for payment.

Mechanic’s liens are complicated. They consist of two documents: a Notice of Contract and Statement of Account. After filing these documents, the sub or supplier must file suit within 90 days, or the lien is no longer valid. Contractors and construction companies frequently fail to properly perfect or record their liens. If this occurs, they may be dismissed.

Generally, in MA, liens must be filed within 90 days of when the general contractor or someone working through him was last at the job. If an owner pays subs during the period that others can still record liens, he “pays them at his peril.” For that reason, the owner should record a Notice of Termination with the Registry of Deeds. That starts the clock running and all liens must be filed within 90 days of the recording.

At that point, the owner has a decision to make. Should he file a motion to dismiss the lien because no money is owed to the general contractor, or negotiate with the sub or supplier and pay them something to dissolve the lien? Unfortunately, the answer is, it depends.

In order to have a lien dissolved, your lawyer has to file an application to dissolve the lien with the court, and schedule a hearing. The whole process may take ten hours or more of your attorney’s time. As with any matter before a judge, there is no guarantee that the decision will go your way, even if the facts are on your side.

If the sub or supplier will agree to a smaller amount to pay the general contractor’s debt, it may be worth it to pay and have him sign a release. This may be a preferable and perhaps the only option if the subcontractor still has work to do, or if additional supplies are needed from the same supplier. It is generally more expensive to hire someone new to come in and complete work that has been started by someone else.

On the other hand, the amount owed may be so large that it is more economical to fight it out in court. If money is still owed to the general contractor, then that amount will be distributed pro rata to the subs who have filed properly perfected liens. Unless one can get all of the subcontractors to agree, it is better to obtain a court order decreeing the amount owed and how it should be distributed.

It is extremely stressful for an owner when subcontractors and suppliers start knocking on his door. Given the complexity of the situation, it is advisable for an owner to contact a construction attorney to determine how to best resolve the matter.

-Andrea Goldman


What to do When Your Contractor Doesn’t Pay Subcontractors and Suppliers

August 15th, 2013

Recently I was contacted by some homeowners when their contractor told them that he had run into financial troubles and would not be completing their renovation work. They quickly discovered that he had not paid numerous subcontractors and suppliers and left them holding the ball. Over the years, I have seen this scenario many times. Contractors who are not adept at running their businesses “rob Peter to pay Paul.” At times, it is simply mismanagement of their finances, but sometimes it is intentional and criminal.

How can a homeowner avoid getting caught in this kind of situation? At its worst, I had a client who discovered that fourteen of the sixteen subs were never paid. The homeowner pays his general contractor in good faith and then faces the prospect of having to pay twice for the same work and materials. There are some ways that a homeowner can protect himself.

1. Make sure your contractor is properly registered and insured.
2. Ask references if the contractor was reliable, came to the work site regularly and followed the payment schedule.
3. Be wary of contractors whose bids are substantially lower. They may request more change orders in order to jack up the contract price to what it “should” cost.
4. Start with a good contract and link payments to the completion of milestones. Have a clause in your contract that allows you to cancel if your contractor fails to pay subs and suppliers.
5. Make the payment schedule detailed and spread evenly throughout the project (for example, 10% upon pouring the foundation, 10% upon completion of the framing, 10% upon completion of the rough inspection).
6. Avoid an overly large deposit. In Massachusetts, the deposit cannot exceed 33 1/3% or the cost of special materials; whichever is greater.
7. Require lien waivers in the contract as subcontractors complete their work and are paid.
8. Be wary of contractors who ask for payments in advance of the payment schedule.
9. Make sure that materials have actually been ordered by your contractor.
10. Make sure the payments do not get ahead of the work.
11. Periodically ask subs and suppliers if they are being paid as required.
12. If you are not able to be onsite to check the progress of the job, hire an owner’s construction manager to monitor the work for you.

If you sense a red flag, do not ignore it. Confront your contractor and find out why payments are not being made. If you are not satisfied that the job is being run properly, reserve the right to terminate your contractor and hire someone else to finish the job.

One of the homeowners who was abandoned by his contractor found himself in an excellent position. He had enough money left to finish the job with another contractor and did not suffer any damages. Even the best home improvement contractors have found themselves in a cash flow bind. The honorable ones will be forthright about it and address the issue. Be wary of the contractors who may abandon the job.

My next post: What to do when the subs and suppliers ask you for payment.

Andrea Goldman


How to Handle Micro-Managing Homeowners

August 9th, 2013

Controlling business puppet conceptI assume that some of the contractors out there are already nodding their heads.  The Internet has done a lot of good in the world, but in certain ways, it has not benefited home remodelers.  The access to information allows anyone to research products and methods in construction, and unfortunately, a certain percentage of the public concludes that they have developed a level of expertise that trumps that of their contractor’s.

I have heard numerous complaints from home improvement contractors who now deal with homeowners who want to buy their own materials (they can get a better deal, they want something unique), have their contractors use different methods, or finish a task within an unreasonable amount of time. I am sure that the customers mean well, but interference from their clients can be a real problem for contractors and at its worst, derail a project or result in litigation.

How can a construction professional avoid getting stuck with micro-managing (albeit well-meaning) homeowners?

  1. Pre-screen your customers.  Most of my clients tell me that they saw red flags prior to signing a contract, but did not pay attention to them.  You are the expert; if the client starts out by telling you how to run the job or insisting that he order his own materials and supplies, take notice.
  2. Set expectations.  You are running the project.  Although a homeowner may believe that she can get a cheaper price, most contractors have ongoing relationships with suppliers that allow them to buy at a discount (which they can then mark up) and control the schedule for delivery so it does not delay a project.  If something arrives damaged, these relationships can enable the contractor to replace the item on an expedited basis.
  3. Draft a good contract.  Let the homeowner know that you will be taking a markup on your materials and supplies.  Issue a disclaimer for any owner-supplied items.  Do not guarantee performance of green materials.  Charge extra if the product requires special installation methods.  Let the homeowner know that improper installation can invalidate the warranty.
  4. Write in the contract that you control the means and methods of the work.  Make it clear that the homeowner can only enter the construction site if he/she is escorted by one of the workers.  Have the owner commit in advance to the fact that you are the expert and must make sure that work will be up to code and pass inspection.
  5.  Have a clause in your contract that allows you to terminate if the homeowner refuses to make decisions in a timely fashion, causes unreasonable delay or refuses to cooperate with you.

Renovating or building a home should be a positive experience for both parties, but as all builders know, there are aspects of it that are stressful.  Don’t let your client add to your stress level by allowing them to invade your territory.

-Andrea Goldman



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