Gashgai v. Board of Registration in Medicine

• Decision Date: 24 August 1978
• Parties: Abdollah S. GASHGAI, M. D. v. The BOARD OF REGISTRATION IN MEDICINE of the State of Maine.
• Court: Maine Supreme Court

Page 1080

390 A.2d 1080

Abdollah S. GASHGAI, M. D. v. The BOARD OF REGISTRATION IN MEDICINE of the State of Maine.

Supreme Judicial Court of Maine.

Aug. 24, 1978.

Skelton, Taintor & Abbott, P.A. by Charles H. Abbott (orally), Lewiston, Locke, Campbell & Chapman, Frank G. Chapman, Augusta, Leva, Hawes, Symington, Martin & Oppenheimer, Cathleen H. Douglas, Washington, D. C., for plaintiff.

Sanborn, Moreshead, Schade & Dawson by Peter T. Dawson (orally), Augusta, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

By complaint dated July 25, 1974, the Board of Registration in Medicine, which is the administrative agency responsible for the licensing and discipline of physicians, commenced proceedings against Appellant, Abdollah S. Gashgai, M. D., a duly licensed physician. See 32 M.R.S.A. §§ 3263 Et seq. The Board charged Dr. Gashgai with "unprofessional conduct," within the meaning of 32 M.R.S.A. § 3282(5).

After a hearing, the Board placed Dr. Gashgai on probation for one year and directed that he file periodic affidavits demonstrating appropriate corrective action as to his billing and testing practices.

Thereupon Dr. Gashgai sought judicial review of the Board's decision in Superior Court (Kennebec County) pursuant to 32 M.R.S.A. § 3283 and M.R.Civ.P. 80B, and invoking the Fourteenth Amendment to the United States Constitution. After considering the record of the Board's hearing, and holding an evidentiary hearing limited to the issue of bias on the part of Board members, the court below ordered judgment for the Defendant Board. A motion by Dr. Gashgai for findings of fact and conclusions of law was denied. He then brought his appeal here.

We sustain the appeal, concluding that as to one charge there was no evidence to support the Board's decision, and as to the other charge the Board failed to make such findings of fact as would undergird its conclusion of law.

The two charges which the Board made in its complaint against this physician were as follows:

a. Between July 19, 1973 and November 30, 1973 . . . (Dr. Gashgai) . . . administered to at least fifty (50) patients multiple diagnostic laboratory procedures . . . which were conducted without apparent prior physical examination or with (sic) medical justification and did submit invoices therefor to the Department of Health and Welfare of the State of Maine in the total amount of $2,092.00.

b. Between November 26, 1973 and November 29, 1973 . . . (Dr. Gashgai) . . . did willfully and intentionally make or authorize to be made a false and fraudulent statement to the State of Maine Department of Health and Welfare . . . to the effect that . . . (he) . . . had to close his office and spend 24 hours a day with a patient on November 26th, 27th, 28th, and 29th, which statement . . . (Dr. Gashgai) . . . knew or should have known was false or fraudulent because in truth and fact on said dates the Defendant maintained office hours and saw at least 26 patients and did submit invoices therefor for payment to the State of Maine Department of Health and Welfare.

These charges appear to have had their genesis in an investigation conducted by George E. Sullivan, M. D., as a consultant to the State Department of Health and Welfare. Originally, the charges were turned over to the Ethics and Discipline Committee of the Maine Medical Association, a private, voluntary association of medical practitioners. In Gashgai v. Maine Medical Association, Me., 350 A.2d 571 (1976), this Court upheld a permanent injunction, suppressing the report of that Committee and prohibiting its distribution, where the Committee had violated the Association's by-laws in conducting its "investigation" of Dr. Gashgai.

While that case was still pending in Superior Court, the Board commenced the instant proceedings. Dr. Sullivan signed the complaint in his capacity as Secretary of the Board. Dr. Sullivan also sat with the Board during its hearing, and, by his own admission, he had a copy of the suppressed report. ¹

The first charge related to invoices which Dr. Gashgai's Chisholm office submitted to the Department of Health and Welfare for laboratory work performed for welfare patients. The record contains some 35 exhibits involving such work, although the transcript indicates that the Board considered only some 15 as a representative sample. Indeed, there is no indication that the Board's exhibits numbered 19-37 were even admitted into evidence, although they constitute part of the record before us. ²

Of particular interest to the Board was the recurrence of a battery of blood tests, described as the SMA6, taken from a single sample of blood, which tested for a number of problems, such as anemia, diabetes, hemoglobin, BUN and albumin. What the Board's experts, and the Board members themselves, appeared to find unusual about these invoices, was that they showed a pattern of testing which, while perhaps justifiable in a given case, showed no apparent medical justification on the invoice. For example, it was stated that a possible diagnosis of gout in a young child (2 or 3 cases) was so unlikely as to be without medical basis.

The second charge related to Dr. Gashgai's treatment of a patient to whom he had been assigned while on call at the Gardiner hospital. Because of her serious condition, this patient was admitted at his direction to the Intensive Care Unit of Augusta General Hospital at 8:00 A.M. on November 26, 1976. She expired there at 7:25 A.M. three days later.

Initially, this patient was accepted as a "charity" case because, while listed as "self-paying," it was determined that she had no ability to pay. Therefore, it was anticipated that no bill would be rendered, even though normally one would be prepared for accounting purposes. Subsequently, however, the Department of Health and Welfare retroactively (and posthumously) determined that this patient qualified for welfare benefits.

Dr. Gashgai's office submitted an invoice to the Department for a total of $400.00, based on charges of $100.00 per day for four days. Because this amount was more than Dr. Gashgai's usual charge for hospital visits, the following was written on the invoice:

Note I have charged $100 a day for her care because I spent 24 hrs. a day with her and had to close my office to attend her.

This invoice was submitted over a facsimile of Dr. Gashgai's signature, which was put on with a rubber stamp by Diane Lavoie, who handled the doctor's insurance billing. Both Dr. Gashgai and Mrs. Lavoie testified without contradiction that Dr. Gashgai had no prior knowledge of this statement.

Dr. Gashgai admitted that he did not spend literally 24 hours a day with the patient. However, the uncontradicted testimony of the patient's daughter and a staff physician at Augusta General Hospital, as well as Dr. Gashgai's own testimony, disclosed that Dr. Gashgai did spend a great deal of time at that hospital and was on constant call on the case.

Dr. Gashgai's office submitted invoices to the Department of Health and Welfare for office visits for patients during the same time period. It was this discrepancy that apparently triggered the investigation. These invoices covered patients who could be grouped into three categories: (1) those that Dr. Gashgai actually saw in his Augusta office, which was in close proximity to the hospital; (2) those that he actually saw in his Chisholm office during a brief period of office hours; ³ and (3) those who came into his Chisholm office and were seen by one of his (non-physician) assistants, who would relay the problem by telephone to Dr. Gashgai in Augusta; Dr. Gashgai would then prescribe for the patient over the telephone or instruct the patient to return in a few days.

It was upon the evidence summarized above that the Board made its findings that Dr. Gashgai conducted "extensive and unnecessary multiple diagnostic laboratory procedures" and that he made "or caused to be made a knowingly false statement."

I.

We turn initially to the second specification, that Dr. Gashgai knowingly made, or caused to be made, a false or fraudulent statement. " Unprofessional conduct" is defined in 32 M.R.S.A. § 3282(5) to include the following:

J. Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of medicine, except as the same may be necessary for therapeutic purposes.

The Board's decision that Dr. Gashgai was in violation of the sub-section cannot stand. There is no evidence in the record that would support a factual finding that Dr. Gashgai knowingly made a false or fraudulent statement regarding closing his office and rendering continuous care to a patient, because the record affirmatively shows that he did not make or authorize the statement, nor did he have any prior knowledge thereof.

Even if the Board was purporting to proceed on the theory that Mrs. Lavoie's knowledge of any falsity could be imputed to Dr. Gashgai (the applicability of this concept is doubtful in light of the statutory language), there was no evidence to support a finding that Mrs. Lavoie knew the statement was false, if in fact it was. She obtained her information from a discharge summary prepared by Dr. Gashgai, and from her own knowledge that the doctor had been absent from his Chisholm office for almost all of the period in question. At most, the record discloses a negligent misstatement by Mrs. Lavoie; it does not demonstrate a knowingly false statement by Dr. Gashgai. ⁴

Therefore, on remand to Superior Court, Dr. Gashgai is entitled to a judgment reversing the Board's decision with respect to the second specification, having knowingly made or caused to be made a false or fraudulent statement.

II.

As to specification (a) of the Board's Complaint, the Board found that Dr. Gashgai ". . . administered or caused to be administered extensive and unnecessary multiple diagnostic procedures . . ." which it...