904 F.2d 772 (1st Cir. 1990), 89-2041, Bettencourt v. Board of Registration In Medicine of Com. of Mass.

• Citation: 904 F.2d 772
• Party Name: Paul E. BETTENCOURT, M.D., Plaintiff, Appellant, v. BOARD OF REGISTRATION IN MEDICINE OF the COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees.
• Case Date: May 31, 1990
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

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904 F.2d 772 (1st Cir. 1990)

Paul E. BETTENCOURT, M.D., Plaintiff, Appellant,

v.

BOARD OF REGISTRATION IN MEDICINE OF the COMMONWEALTH OF

MASSACHUSETTS, et al., Defendants, Appellees.

No. 89-2041.

United States Court of Appeals, First Circuit

May 31, 1990

Heard March 8, 1990.

As Amended June 1, 1990.

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Lee J. Dunn, Jr., with whom Dunn & Auton, Richard W. Mable and Powers & Hall, Professional Corporation, Boston, Mass., were on brief, for plaintiff, appellant.

Richard M. Brunell, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

After notice and a hearing, the state board of registration revoked plaintiff's license to practice medicine, and plaintiff petitioned for review of the board's determination to the state's highest court. While his state review petition was still pending, plaintiff brought this civil rights action in the federal district court, alleging that the board's action had violated his constitutional rights and seeking reinstatement of his medical license as well as damages. The district court dismissed plaintiff's action on numerous grounds, including Younger abstention. We affirm.

I. BACKGROUND

A. The Board of Registration in Medicine

The Board of Registration in Medicine for the Commonwealth of Massachusetts (the "Board") consists of five physicians and two lay persons who are appointed by the governor for three-year terms. See Mass.Gen.L. ch. 13, Sec. 10. The Board's primary responsibility is to regulate the practice of medicine in Massachusetts. See Mass.Gen.L. ch. 112, Sec. 5; Mass.Regs.Code tit. 243, Secs. 1.00 to 2.09. One way in which it fulfills this responsibility is to resolve complaints concerning its licensed physicians. See Mass.Gen.L. ch. 112, Sec. 5; Mass.Regs.Code tit. 243, Sec. 1.03.

Upon receiving a complaint from a person or organization charging a physician with misconduct, the Board proceeds generally as follows. A "Complaint Committee," composed of at least one member of the Board, reviews the complaint and decides whether there is reason to believe that the alleged act occurred and whether it amounted to a sanctionable violation. See Mass.Regs.Code tit. 243, Sec. 103(9). If the Complaint Committee finds in the affirmative on both questions, it recommends that the Board issue an order to show cause, thereby initiating an adjudicatory proceeding. See id.

The Board appoints a "hearing officer" to conduct an adjudicatory proceeding according to the procedures set forth in the Massachusetts Administrative Procedures Act, Mass.Gen.L. ch. 30A, and the Standard Adjudicatory Rules of Practice and Procedure, Mass.Regs.Code tit. 801, Secs. 1.00, et seq. See Mass.Regs.Code tit. 243, Sec. 1.04. These proceedings allow the two adverse parties--the Board prosecutor and the charged physician (who is commonly represented by counsel)--to present evidence, cross-examine witnesses, make objections, bring motions, and make oral arguments to the hearing officer. The latter makes all decisions regarding the admission or exclusion of evidence and any other procedural matters. See Mass.Regs.Code tit. 801, Sec. 1.01(10)(f)(1), Sec. 1.01(10)(d). After the hearing, the hearing officer issues a "tentative

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decision" in writing, consisting of a statement of reasons and a determination of the factual and legal issues, together with a recommended sanction if the officer deems one to be necessary. See Mass.Regs.Code tit. 801, Sec. 1.01(10)(n)(1). A copy of the hearing officer's tentative decision is sent to the physician, and a hearing transcript is made available to the physician. See id.; Mass.Regs.Code tit. 801, Sec. 1.01(10)(k). The physician may file an objection to the hearing officer's tentative decision. See Mass.Regs.Code tit. 801, Sec. 1.01(10)(n)(1).

The Board then reviews the hearing officer's decision and issues its own "final decision," which also contains a statement of reasons and a determination of the factual and legal issues. See Mass.Regs.Code tit. 801, Sec. 1.01(10)(n)(2). In making its factual determinations, the Board must give "substantial deference" to the hearing officer's credibility determinations, see Morris v. Board of Registration, 405 Mass. 103, 111, 539 N.E.2d 50, 54 (1989), but is free to "revise or reject the findings of a hearing officer on conflicting evidence." Id. The legal issues, which the Board decides de novo, serve as precedents for future cases. See Arthurs v. Board of Registration, 383 Mass. 299, 418 N.E.2d 1236, 1246 (1981). If the Board finds that the physician has engaged in improper conduct, it chooses one of several available sanctions, including revocation, suspension, or cancellation of the physician's license. See Mass.Regs.Code tit. 243, Sec. 1.05(2). In choosing a sanction, the Board is not bound by the hearing officer's recommendation. See Feldstein v. Board of Registration, 387 Mass. 339, 439 N.E.2d 824, 826 (1982).

A physician who is unsatisfied with the Board's decision may petition directly to the Massachusetts Supreme Judicial Court ("SJC") for review. See Mass.Gen.L. ch. 112, Sec. 64, and ch. 30A, Sec. 14. The SJC is the highest court in the Commonwealth of Massachusetts. The SJC has authority under state law to set aside or modify the Board's decision if it determines that the substantial rights of any party have been prejudiced because the agency decision is (1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the agency; (3) based upon an error of law; (4) made upon unlawful procedure; (5) unsupported by substantial evidence; (6) unwarranted by the facts as found by the SJC on the record; (7) arbitrary and capricious; (8) an abuse of discretion; or (9) otherwise not in accordance with law. See Mass.Gen.L. ch. 30A, Sec. 14(7). Although judicial review is generally confined to the record, the SJC may take testimony with respect to alleged irregularities in the procedure before the agency. See Mass.Gen.L. ch. 30A, Sec. 14(5). The court also has discretion, before deciding, to order the Board to take and send up additional evidence. See id., Sec. 14(6).

B. Plaintiff's Experience Before the Board

Until his license was revoked on January 4, 1989, Dr. Paul E. Bettencourt, the plaintiff in this action, held privileges at the Faulkner Hospital, Lemuel Shattuck Hospital, and Hunt Memorial Hospital. He specialized in pulmonary disease, internal medicine, and critical care.

On February 17, 1988, the Board issued a show cause order, alleging that plaintiff had engaged in improper conduct with a patient in violation of various Massachusetts laws and Board regulations. See, e.g., Mass.Gen.L. ch. 112, Sec. 5(c); Mass.Regs.Code tit. 243, Sec. 1.03(5)(a)(3) (conduct that places into question competence to practice medicine), Mass.Regs.Code tit. 243, Sec. 1.03(5)(a)(18) (misconduct in the practice of medicine), Mass.Gen.L. ch. 112, Sec. 2 (conduct evidencing a lack of good moral character). Specifically, it was charged that Dr. Bettencourt had engaged in homosexual relations with a particular patient over a 10-month period. The matter was referred to a hearing officer.

On March 7, 1988, plaintiff filed an answer to the complaint, in which he denied all the charges.

In the summer of 1988, the hearing officer conducted an adjudicatory hearing on the merits of the complaint. Following the hearing, the hearing officer issued a Recommended Final Decision and Order calling

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for the complete revocation of plaintiff's license to practice medicine. On November 15, 1988, plaintiff filed objections to the recommended decision.

On January 4, 1989, the Board adopted the hearing officer's recommended decision in full and ordered the immediate revocation of plaintiff's license to practice medicine.

On February 2, 1989, plaintiff petitioned the SJC for review of the Board's decision pursuant to Mass.Gen.L. ch. 112, Sec. 64, and ch. 30A, Sec. 14. In his petition, plaintiff alleged that the Board's action (1) violated his rights to due process of law under both the Massachusetts and the United States Constitutions; (2) constituted an "unlawful procedure" under Mass.Gen.L. ch. 30A, Sec. 14(7)(d); (3) lacked substantial evidentiary support under Mass.Gen.L. ch. 30A, Sec. 14(7)(e); (4) constituted an "abuse of discretion" under Mass.Gen.L. ch. 30A, Sec. 14(7)(g); and (5) constituted an "error of law" under Mass.Gen.L. ch. 30A, Sec. 14(7)(c) by virtue of the Board's "bias, prejudice, and prejudgment."

Plaintiff also filed numerous motions with the Board, asking it to reconsider its decision and to stay its final order. On April 5, 1989, the Board denied plaintiff's motions.

C. The Current Federal Action

On April 7, 1989, while his appeal of February 2 was pending before the SJC, plaintiff brought this civil rights action in the district court against the Board, its members, ¹ and three members of the Board's staff, ². In his complaint, plaintiff alleged that defendants, while acting under color of state law, (1) had deprived Dr. Bettencourt of his due process and equal protection rights in violation of 42 U.S.C. Sec. 1983; (2) had conspired to deprive him of those rights in violation of 42 U.S.C. Sec. 1985; and (3) knew or should have known that their conduct would serve to deprive him of his rights and neglected to prevent such a deprivation in violation of 42 U.S.C. Sec. 1986. Plaintiff sought an injunction (pursuant to 42 U.S.C. Sec. 1988) ordering the Board to return his license, a declaratory judgment declaring the Board's decision to be in violation of federal law, compensatory damages, attorney's fees, and $500,000 in punitive damages.

A principal claim of plaintiff's is that the Board violated his right to due process by judging...