Arthurs v. Board of Registration in Medicine
| Decision Date | 03 April 1981 |
| Parties | , 22 A.L.R.4th 651 Alexander T. ARTHURS v. BOARD OF REGISTRATION IN MEDICINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David Berman, Medford, for plaintiff.
Paul W. Johnson, Asst. Atty. Gen. (Carolyn V. Wood, Asst. Atty. Gen., with him), for defendant.
Before HENNESSEY, C. J., BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.
The plaintiff Alexander T. Arthurs, a physician licensed by the Commonwealth, seeks judicial review of the decision of the Board of Registration in Medicine (board), revoking his license to practice medicine in the Commonwealth of Massachusetts. The board found that Arthurs prescribed controlled substances for other than a legitimate medical purpose, in violation of G.L. c. 94C, § 19(a ).
The plaintiff claims that (1) the board's decision is unsupported by substantial evidence; (2) the board erred by basing its decision on one of its adjudicatory opinions decided after Arthurs's conduct had occurred; (3) the board erred in its treatment of Arthurs's objections to the recommended decision of a hearing officer; (4) the doctrine of double jeopardy bars the board's disciplinary proceeding on the ground that Arthurs was acquitted in the Superior Court of charges growing out of the same conduct; and (5) that the disciplinary proceedings are barred on the ground of entrapment. We conclude that the decision of the board should be upheld.
On October 1, 1976, the board issued an order to show cause, 1 pursuant to G.L. c. 112, § 5, 2 charging Arthurs with issuing prescriptions for controlled substances for other than a legitimate medical purpose, in violation of G.L. c. 94C, § 19(a ). 3 Arthurs moved for specification of the charges, and the board detailed its allegations against him in a document entitled "Further Specifications." In essence, the board charged Arthurs with unlawfully prescribing controlled substances for five persons on fifty-six occasions. Arthurs then challenged the right of the board to deny him a continuance of the disciplinary proceedings during the pendency of criminal charges against him arising from some of the same conduct. 4 After those proceedings terminated in the board's favor, the board held a hearing on its charges. In a "Recommended Decision," the hearing officer, 5 who conducted that hearing, 6 found that Arthurs had prescribed controlled substances for other than a legitimate medical purpose for three persons on numerous occasions. 7 The hearing officer concluded that in the prescribing of controlled substances, Arthurs failed to meet the minimum standards of proper medical practice suggested in a 1978 opinion by the board. Matter of Arthur E. Baer, M. D., Adjudicatory Case No. 205 (July 14, 1978).
After Arthurs made written and oral objections 8 to the recommended decision, the board issued a final order revoking Arthurs's certificate of registration to practice medicine in the Commonwealth of Massachusetts. The board stated that "(a)fter full consideration of the record and the exhibits, the Board adopts the Recommended Decision as the basis of its decision." 9 It further stated that "(o)n the basis of the findings of fact enumerated in the Recommended Decision, and for reasons similar to those set forth in detail in In the Matter of Arthur E. Baer, M. D., ... the defendant did prescribe controlled substances for other than a legitimate medical purpose."
The specific findings made by the board are that: (1) Arthurs issued, without explanation, repeated refill prescriptions for controlled substances over relatively short periods of time; (2) Arthurs failed to exercise minimum care in preventing persons from obtaining multiple prescriptions from him for controlled substances under different pseudonyms; (3) Arthurs failed to exercise minimum care in obtaining and recording the addresses of patients for whom he was prescribing controlled substances over extended periods of time; and (4) Arthurs repeatedly failed to record an appropriate medical history, and to record an appropriate physical examination, in instances where controlled substances were prescribed.
The board concluded that "(f)rom the extensive evidence submitted, it is clear that (Arthur's) behavior was not an isolated incident or oversight, but a pattern of intentional or negligent practice." 10 Arthurs then filed his complaint for judicial review. G.L. c. 112, § 64. 11
1. The substantiality of the evidence. Arthurs claims that the decision of the board is unsupported by substantial evidence, and therefore must be set aside. G.L. c. 30A, § 14(7)(e). " 'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion." G.L. c. 30A, § 1(6). Initially, we note the limited nature of our review under the substantial evidence standard. While we must consider the entire record, and must take into account whatever in the record detracts from the weight of the agency's opinion, Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253, 214 N.E.2d 63 (1966), as long as there is substantial evidence to support the findings of the agency, we will not substitute our views as to the facts. Martin v. Director of the Div. of Employment Security, 347 Mass. 264, 197 N.E.2d 594 (1964). McCarthy v. Contributory Retirement Appeal Bd., 342 Mass. 45, 172 N.E.2d 120 (1961). There must, however, be substantial evidence in the record to support the findings of the board. While the board is free to evaluate evidence in light of its expertise, it cannot use its expertise as a substitute for evidence in the record. We are concerned with how the board arrived at its decision and with the evidence on which it relied.
We summarize the facts found by the board. A. Charles Jackson and David Jackson. 12 A black male weighing approximately 300 pounds and standing approximately six feet, three or four inches tall, established a patient relationship with Arthurs under the names Charles Jackson and David Jackson. On six days this patient visited Arthurs twice, once under each name, and received prescriptions for either Quaalude 13 or Desoxyn, both controlled substances. The board found as a fact that Jackson was "physically prominent" and that "it would be extremely difficult for him to pass himself under two different aliases to the same doctor." At the hearing, Arthurs conceded that Jackson was a distinctive looking individual. The board found that Arthurs "knew or should have known" that David and Charles Jackson were the same person.
From the prescriptions and the patient cards in evidence, the board found that Arthurs had prescribed controlled substances on sixteen occasions for David Jackson, and on at least nine occasions for Charles Jackson. All these prescriptions directed the patients to take one tablet daily. The board calculated that over the ninety-two days covered by the first four prescriptions to Charles Jackson, Arthurs issued prescriptions that exceeded the one tablet daily dosage prescribed to that patient by thirty per cent; 14 over a period of 166 days, Arthurs issued prescriptions to David Jackson that exceeded the directed dosage by forty-five per cent. 15 Arthurs offered no explanation for the excess in the amount of controlled substances prescribed by him, or for his failure to identify a patient for whom he was prescribing controlled substances. 16
The facts found by the board also indicate that Arthurs failed to record on a patient card four prescriptions for Quaalude, two for David Jackson and two for Charles Jackson. It also found that six prescriptions for controlled substances issued to David Jackson were recorded on Charles Jackson's patient card, and that a prescription for Quaalude for one Margaret Jackson was recorded on Charles Jackson's card.
The patient cards, the board found, showed that Arthurs recorded Charles Jackson's address on his first visit as 108 Pearl Street, Cambridge, and David Jackson's address as 108 Pearl Street, Somerville. The first visit of this patient under his two names occurred on two consecutive days. Arthurs used the two addresses interchangeably thereafter. The board concluded that "(w)hile it is certainly possible to copy or remember part of an address incorrectly, the extended pattern of using 'Cambridge' and 'Somerville' interchangeably on the twenty-five prescriptions in evidence for 'Charles Jackson' and 'David Jackson' raises the question whether Dr. Arthurs here took minimal care to prevent the fraudulent use of controlled substances."
B. Gail Diamond. 17 Arthurs issued six prescriptions for Quaalude to a patient known to Arthurs as Gail Diamond. Two of these prescriptions were not recorded on the patient card, and on at least one prescription Arthurs used a different address without making a notation of any change of address on the patient card.
Arthurs's prescriptions directed Diamond to take one tablet daily. Over the forty-nine days covered by the first five prescriptions, the board determined that Arthurs issued prescriptions which exceeded the one tablet daily dosage by 200%. The board concluded that there might be an explanation for one of the surplus prescriptions, 18 but not for the others.
C. Thomas Price. Thomas Price 19 was the pseudonym used by a detective from the Massachusetts State Police Diversion Investigation Unit. On Price's first recorded visit, Arthurs prescribed Nembutal but did not indicate a quantity on the patient card. On Price's return visit, Arthurs noted that "(p)atient works late as he is a bouncer in a bar room and when he gets home he can't fall asleep." There is no notation of a prescription on that date. Arthurs prescribed Nembutal at bedtime to Price on seven subsequent dates, all of which were noted on the patient card, the last with the notation "may repeat if needed." Arthurs also prescribed Quaalude for him on one occasion. Over the 125 days...
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