The misuse of summary suspension

March 2nd, 2017

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

Read the original article at: massbar.org

 

By Joel Rosen
November/December 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

posted by: joelrosen in For Medical Professionals | No Comments

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