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.

BY PATRICK DORRIAN

Text of the complaint is available at http://src.bna.com/fzI.

Download a PDF version of this article

posted by: joelrosen in Announcements, EMPLOYMENT & DISCRIMATION, For Medical Professionals, PROTECTIVE GEAR | No Comments

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

ROSEN

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

ITA18FXIBL

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.

https://www.eform.ago.state.ma.us/ago_eforms/forms/npwc_ecomplaint.action

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?

rosen

 

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.

Conclusion
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

Rosen Law Fields Championship Team

May 13th, 2011

OK, it’s only a trivia competition.  But our team, Addicted to Law, took top honors at the charity tournament for the Haverhill Foundation for Excellence in Education on May 7, 2011.  The foundation provides funding for equipment and programs in the Haverhill public schools. 

Bottom row: Esther Rosen, Rachel Moynihan, Rick Moynihan, Andy Hart, Alexa Hart.  Top Row: Jerry O'Connor, Joel Rosen.

Bottom row: Esther Rosen, Rachel Moynihan, Rick Moynihan, Andy Hart, Alexa Hart. Top Row: Jerry O'Connor, Joel Rosen.

posted by: joelrosen in Announcements | No Comments

We’re Back

March 18th, 2010

The flood waters receded.  A dove flew in with an olive branch.  The power company flipped on the breakers.  And we’re back in business.  We’d like to thank our friends for their patience and good wishes during the past two days.

Business as Usual

Business as Usual

posted by: joelrosen in Announcements | No Comments

The Flood

March 16th, 2010

Just before St. Patrick’s Day, the Shawsheen River overflowed its banks and left us without power.   Here’s what our parking lot looked like .

Parking Lot 3-15-10

We were able to work from home and forwarded our phones and e-mail, so clients were able to reach us without a problem.  Here is another view of our building and parking lot.

Building and Parking Lot

posted by: joelrosen in Announcements | No Comments