Hellman v. Board of Registration in Medicine

• Decision Date: 03 May 1989
• Parties: Samuel HELLMAN v. BOARD OF REGISTRATION IN MEDICINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 150

537 N.E.2d 150

404 Mass. 800

Samuel HELLMAN v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 8, 1989.

Decided May 3, 1989.

Jane S. Schacter, Asst. Atty. Gen., for defendant.

Wilson D. Rogers, Jr., Weymouth Heights, for plaintiff.

Present WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

The Board of Registration in Medicine (board) appeals from a determination by a single justice of this court that the board's decision to discipline Dr. Samuel Hellman for "gross misconduct" in the practice of medicine was not supported by substantial evidence. See G.L. c. 30A, § 14. The board imposed sanctions on Dr. Hellman for a conversation he had with an attorney concerning the care and treatment of L.E. (patient). See G.L. c. 112, § 5(c ), as appearing in St.1981, c. 639, and 243 Code Mass.Regs. § 1.03(5)(a)(3), as appearing in 1980. ¹ For the reasons stated in this opinion we affirm the decision of the single justice.

Dr. Hellman treated the patient for paraganglioma from February or March, 1981, through early summer, 1982. Dr. Hellman was then chief of radiation therapy at Brigham and Women's Hospital and director of the Harvard Joint Center for Radiation Therapy. Prior to consulting with Dr. Hellman, the patient had been under the care of several other physicians. In June, 1982, the patient sued these other physicians and their associated institutions (the malpractice defendants) for malpractice, alleging that they had failed to diagnose and treat her condition. Dr. Hellman was not a party to that action. Two of the malpractice defendants retained Attorney Raymond J. Kenney, Jr., to represent them.

In June, 1983, Mr. Kenney learned that Dr. Hellman was leaving Massachusetts to accept a position as chair of clinical oncology at Memorial Sloan-Kettering Cancer Center in New York. In order to preserve Dr. Hellman's testimony for the malpractice action, Mr. Kenney served Dr. Hellman with a subpoena requiring him to appear at a deposition on June 24, 1983, and to produce all his records and office notes pertaining to the patient. The patient and her attorneys were notified of the deposition.

On June 23, 1983, Mr. Kenney came to Dr. Hellman's office to discuss the deposition scheduled for the following day. Dr. Hellman asked Mr. Kenney if it was appropriate for them to speak with each other. Mr. Kenney replied that it was. In the course of their half-hour conversation, Mr. Kenney described the procedure of the deposition and told Dr. Hellman what questions, generally, he expected to pose. Mr. Kenney asked Dr. Hellman the general substance of his testimony for the following day, and Dr. Hellman told him, discussing in general his treatment of the patient and her condition. Mr. Kenney also asked to see Dr. Hellman's records on the patient and thumbed through them. Mr. Kenney told Dr. Hellman that he already had the same records through the Brigham and Women's Hospital department of radiation therapy, where Dr. Hellman had treated the patient, but Dr. Hellman did not verify that, in fact, Mr. Kenney already had seen the same records. Dr. Hellman did not tell his patient of this meeting in advance or ask her permission to speak with Mr. Kenney.

Dr. Hellman was deposed on the following day. Several days later the patient wrote to the board complaining of Dr. Hellman's breach of confidentiality in speaking with Mr. Kenney before the deposition. She wrote: "I feel that it was highly improper for Dr. Hellman to have spoken with anyone about my medical condition and treatment without my permission or knowledge, and I am quite concerned with insuring that this situation does not repeat itself with other physicians or other patients. This flagrant breach of trust does nothing to restore my confidence in a profession which has already caused me a great deal of pain and anguish in recent years."

In addition to the foregoing, the board found as follows: "Dr. Hellman understood his responsibility to keep patient records confidential unless they were being discussed with a colleague involved in the case or the patient had given permission for disclosure. Dr. Hellman said that when he spoke to Mr. Kenney on June 23, he did not have a release to do so from [the patient], that it was not his normal procedure to talk to people about his patients without a release, and that he presumed that, according to the [b]oard, it was not what one should do.... Dr. Hellman believed his discussion with Mr. Kenney was appropriate because Mr. Kenney had said he already had [the patient's] complete records, of which the Brigham radiotherapy records were a part, because he [Dr. Hellman] believed the subpoena was a waiver of confidentiality by [the patient], and because her situation was ... a matter of public record by her having brought her lawsuit." The board characterized Dr. Hellman's beliefs about waiver of confidentiality in the context of the imminent deposition and the pending malpractice action as "erroneous." The board concluded that Dr. Hellman's disclosures, whether or not they revealed anything previously unknown to Mr. Kenney, "constituted gross misconduct in the practice of medicine and an absence of good and accepted medical practice in violation of [G.L. c.] 112, [s] 5(c ), and 243 [Code Mass.Regs. s] 1.03(5)(a)(11), and in violation of [G.L. c.] 112, [s] 5(h ), and 243 [Code Mass.Regs. s] 1.03(5)(a)(11), by virtue of the violation of 243 [Code Mass.Regs. s] 1.03(5)(a)(3)."

The board determined that Dr. Hellman owed the patient a duty of confidentiality and that he violated that duty. The question before us is whether Dr. Hellman's breach of duty, based on beliefs that the board characterized as erroneous, may be said to constitute "gross misconduct." The board argues forcefully that confidentiality is a cardinal rule of the medical profession and that there is no excuse for Dr. Hellman's failure to telephone his patient to ask her permission to speak with Mr. Kenney. The board contends that all the other circumstances may be (and were) considered in mitigation of the sanction imposed. The board emphasizes its broad powers to define misconduct and to impose sanctions.

We interpret a regulation "in the same manner as a statute[,] and according to traditional rules of construction." Amherst Nursing Home, Inc. v. Commonwealth, 16 Mass.App.Ct. 638, 640, 454 N.E.2d 498 (1983). See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 854-858, 364 N.E.2d 1202 (1977). "It is a well established principle of statutory interpretation that '[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning...." Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967). See Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). "Ordinarily an agency's interpretation of its own rule [or regulation] is entitled to great weight.... However, this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations ... when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule [or regulation] itself." (Citations omitted.) Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478, 349 N.E.2d 346 (1976).

We turn to the meaning of the words "gross misconduct." " 'Misconduct', in general, is improper conduct or wrong behavior, but as used in speech and in law it implies that the conduct complained of was willed and intentional. It is more than that conduct which comes about by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or lack of concern for one's conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor. 'Gross' is generally defined as 'flagrant' and 'extreme.' " State ex rel. Gremillion v. O'Hara, 252 La. 540, 552, 211 So.2d 641 (1968). Webster's New International Dictionary 1106 (2d ed. 1959), defines "gross" in part to mean "[o]ut of all measure; beyond allowance; not to be excused; flagrant; shameful; as, a gross injustice." In the context of negligence, we have stated: "Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.... It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others." Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). See Boston & Me. R.R. v. Aetna Casualty & Sur. Co., 329 F.2d 602, 605 (1st Cir.1964).

The board based its decision to impose sanctions on case law in Massachusetts and elsewhere. The two major cases on which the board relies to support its conclusion that the conduct of Dr. Hellman was "gross misconduct" were decided after Dr. Hellman's meeting with Mr. Kenney. See Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Tower v. Hirschhorn, 397 Mass. 581, 492 N.E.2d 728 (1986). See also Schwartz v. Goldstein, 400 Mass. 152, 508 N.E.2d 97 (1987). ² Cases in other jurisdictions were divided on the issue of waiver prior to trial. ³ The sources of professional ethics do not address the specific circumstances of this case. ⁴ The facts found by the board could be said to support a conclusion that Dr. Hellman's conduct was erroneous or even, perhaps, that it ...