Anusavice v. Board of Regis. in Dentistry

• Decision Date: 11 July 2008
• Docket Number: SJC-09970
• Parties: Gary ANUSAVICE v. BOARD OF REGISTRATION IN DENTISTRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

889 N.E.2d 953

451 Mass. 786

Gary ANUSAVICE v. BOARD OF REGISTRATION IN DENTISTRY.

SJC-09970

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 2008.

Decided July 11, 2008.

Thomas F. McGuire, Jr., Fall River, for the plaintiff.

Sookyoung Shin, Assistant Attorney General, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

This is an action for judicial review of a final decision and order of the Board of Registration in Dentistry (board) revoking Gary Anusavice's license to practice dentistry in Massachusetts. It is brought pursuant to G.L. c. 112, § 64, and G.L. c. 30A, § 14(7), and was filed in the Supreme Judicial Court for Suffolk County. The single justice reserved and reported three questions:

"1. Does the Board of Registration in Dentistry have authority to impose (reciprocal) discipline on a dentist licensed to practice dentistry in the Commonwealth based on discipline imposed on him in a foreign jurisdiction?

"2. Does the consent order between the petitioner and the Rhode Island Board of Examiners in Dentistry, dated November 9, 2005, constitute discipline for purposes of reciprocal discipline in the Commonwealth?

"3. Does the aforesaid consent order have preclusive effect as to the misconduct described therein for purposes of reciprocal discipline in the Commonwealth?"

As explained below, we answer the first two questions in the affirmative. We decline to answer the third question as posed by the single justice, where Anusavice has not been charged in Massachusetts with the misconduct that was alleged in Rhode Island and resolved by the consent order. In the circumstances of this case, proof of that misconduct is not relevant to the imposition of reciprocal discipline in Massachusetts. We also proceed to affirm the sanction imposed by the board.

1. Background. On June 23, 1980, the board issued Anusavice a license to practice dentistry. In July, 1997, Anusavice entered a consent agreement with the board, resolving twenty-four complaints that had been filed against him.¹ Under the terms of that agreement, Anusavice voluntarily surrendered his license for five years; he also agreed to a five-year period of probation on the reinstatement of his license. The agreement required Anusavice to "comply with all federal and state laws" and to "observe currently accepted standards of practice" in dentistry. His Massachusetts license was reinstated in 2002, and he began practicing under the terms of his probation.² a. The Rhode Island consent order. At all relevant times Anusavice was also licensed to practice dentistry in Rhode Island. On November 9, 2005, Anusavice entered into a consent order with the Rhode Island Department of Health Board of Examiners in Dentistry (Rhode Island department), resolving complaints that had been made against him in that State. This is the consent order at issue in the present case. Among its findings of fact, the consent order included the following description of the allegations of misconduct it was resolving:

"The Department has alleged that the Respondent ... has engaged in activities amounting to fraud, including but not limited to providing unwanted dental services to patients, credit card fraud, a bait and switch scheme with regard to dental services, billing patients for services not delivered, deceiving patients with respect to credit that respondent arranged for them, refusing to respond to patients' repeated requests for care, refusing to provide patients with copies of their medical records, and other activities prohibited by statute."

The order further provided that Anusavice "neither admits nor denies the ... allegations," but "acknowledges and waives" his right to contest them at a hearing before the Rhode Island department.³ In exchange for the Rhode Island department terminating its disciplinary proceeding against him, Anusavice agreed to refrain from practicing dentistry in Rhode Island for eighteen months, and, on resuming his practice, to be subject to an additional eighteen-month period of probation. During this period of probation, Anusavice would be required to, among other things, submit "quarterly reports detailing the conduct of his practice, number of patients and the names of other licensed professionals employed there." The order further provided that Anusavice would be eligible for "an unrestricted license to practice as a dentist" only if he successfully completed the probationary period.

The Rhode Island department reported the consent order to the National Practitioner's Data Bank and the Healthcare Integrity Data Base (data banks). These data banks exist to "restrict the ability of incompetent [health care professionals] to move from State to State without disclosure or discovery of the [professional's] previous damaging or incompetent performance." 42 U.S.C. § 11101(2) (2000). The Rhode Island department also listed Anusavice's "[§ Eighteen] Months Voluntary Surrender [of his license] with [§ Eighteen] Months Probation upon reinstatement" as a "disciplinary action" on its official Internet Web site.

b. Massachusetts proceedings. Following the entry of the consent order in Rhode Island, the board issued an order requiring Anusavice to show cause why it should not take action against his license in Massachusetts. The order to show cause recited the history of the Rhode Island disciplinary proceeding and contended that Anusavice was subject to reciprocal discipline because the "voluntary surrender of [his] license is a disciplinary action ... and it has been reported to the [data banks] as such."⁴ It further alleged that Anusavice had (in Massachusetts) advertised dental services in the Verizon Yellow Pages in 2003 and 2004 without naming the dentist who owned the practice, in violation of 234 Code Mass. Regs. § 2.05(3)(a) (1995).⁵

The parties filed cross motions for summary decision as permitted by 801 Code Mass. Regs. § 1.01(7)(h) (1998). Prosecuting counsel for the board argued that there was no genuine issue of material fact in dispute that Anusavice had improperly advertised dental services in Massachusetts, and had been disciplined in Rhode Island based on complaints that he engaged in fraud. The prosecuting counsel further argued that because fraud in the practice of dentistry is a basis on which discipline could be imposed in Massachusetts, Anusavice was subject to reciprocal discipline in Massachusetts. In support of the motion for summary judgment, prosecuting counsel submitted a copy of the Rhode Island consent order, as well as an affidavit from Gail Giuliano, the administrator of the Rhode Island department.⁶

Anusavice opposed the motion for summary decision, contending first that "there is no statute or regulation giving the Board authority to automatically impose discipline based on the Rhode Island Consent Order"; and second that "the imposition of discipline by the Board requires either an admission of wrongdoing ... or a finding by a board—whether in Massachusetts or Rhode Island—that he has engaged in some wrongdoing. Neither is present here."

Anusavice also submitted affidavits explaining the circumstances leading to his signing of the consent order. Relying on these affidavits, he argued that the allegations of fraudulent conduct were untrue, and that he agreed to the consent order because false charges were being disseminated in the media, causing anxiety to his wife and sons, and harming his reputation. He claimed that he insisted on the consent order omitting any admission or finding of wrongdoing, in part, because he did not want that order to be used against him in other proceedings. Anusavice did not dispute the advertising charge, but contended that it was inadvertent error that was subsequently corrected.

c. The Massachusetts board's decisions. 1. Partial summary decision. On March 6, 2006, the board granted the prosecuting counsel's motion for summary decision as to the claim that Anusavice was subject to reciprocal discipline, and that he had improperly advertised his dental practice. The latter matter is not disputed.

In its ruling on the motion for summary decision, the board determined that the Rhode Island consent order constituted discipline, and held that Anusavice was subject to reciprocal discipline as a result, regardless of whether he had admitted to or been found to have engaged in wrongdoing. In reaching the latter conclusion, the board relied principally on Ramirez v. Board of Registration in Med., 441 Mass. 479, 482, 806 N.E.2d 410 (2004) (Ramirez), in which this court held that reciprocal discipline (of a physician) may be imposed in Massachusetts when a licensee has been disciplined in another jurisdiction, whether based on contested proceedings where misconduct is found or admitted, or on a consent order where it is not, provided that the grounds for discipline are substantially the same as would subject the physician to discipline in the Commonwealth.

In assessing whether the conduct alleged in the Rhode Island consent order presented grounds that would be sufficient for discipline in Massachusetts, the board concluded that it was, both in light of G.L. c. 112, § 61, which provides for discipline "if it appears to [the] board that the holder of such ... license ... is guilty of deceit, malpractice, gross misconduct in the practice of his profession, or of any offense against the laws of the commonwealth relating thereto," and in light of the terms of his probation under the 1997 consent order between Anusavice and the board. The board further concluded that the conduct alleged was the "type of conduct that undermines the public confidence in the integrity of the profession." Cf. Sugarman v. Board of Registration in Med., 422 Mass. 338, 342, 662 N.E.2d 1020 (1996); Raymond v. Board of Registration in Med., 387 Mass. 708, 713, 443 N.E.2d 391 (1982) (boards have authority to protect image of...