Kobrin v. Board of Registration in Medicine

• Decision Date: 11 August 2005
• Citation: 444 Mass. 837,832 N.E.2d 628
• Parties: Kennard C. KOBRIN v. BOARD OF REGISTRATION IN MEDICINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 628

832 N.E.2d 628

444 Mass. 837

Kennard C. KOBRIN v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 2005.

Decided August 11, 2005.

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George C. Deptula, Boston, for the defendant.

James J. Arguin, Assistant Attorney General, for the plaintiff.

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

IRELAND, J.

In December, 2002, a jury convicted Kennard C. Kobrin (petitioner) of two counts of violating G.L. c. 118E, § 40(2) (Medicaid fraud).¹ On November 17, 2004, the Board of Registration in Medicine (board) revoked the petitioner's license to practice medicine. The petitioner appealed to a single justice of this court, who denied a motion to stay the board's decision pending the appeal of his criminal convictions and then reserved and reported the case without decision. The petitioner argues that principles of res judicata prevented the board from using the convictions as a basis to revoke his licence, makes various claims concerning the lawfulness of the board's procedure, and claims that the board's decision was arbitrary and not supported by substantial evidence. Because we conclude that the board properly relied on the convictions as proof of the petitioner's guilt in its decision to revoke his license, that the administrative process the petitioner received was proper, and that the decision of the board was not arbitrary and was supported by substantial evidence, we affirm the decision of the board and affirm the denial of the petitioner's motion to stay the board's decision.

Facts and procedural background. We present facts from the record, leaving some details for our discussion of the issues. The petitioner has been licensed to practice medicine in Massachusetts since 1979, and is board certified by the American Board of Medical Specialties in psychiatry. He practiced in Fall River. In 1998, fourteen indictments, containing multiple counts, issued against the petitioner for violations of G.L. c. 118E, §§ 40(2) and 41, as well as for violations of G.L. c. 94C, §§ 32D and 32B. The Commonwealth nol prossed sixteen counts and the petitioner's motion for required findings of not guilty was allowed for twenty-one counts. The jury found him guilty on three counts, including two counts of violating G.L. c. 118E, § 40(2).² The latter convictions concerned his referring two patients to Dr. Richard Greene, a psychologist who conducted tests that were unnecessary.

In May, 2003, the judge sentenced the petitioner to two concurrent suspended sentences of eighteen months to a house of correction, three years' probation, and 750 hours of community service. He also imposed $10,000 in fines. In his memorandum of decision on sentencing, the judge stated, "[T]he evidence disclosed that ... unnecessary tests served as a means for [the petitioner] to secure rental and service income from tenant-clinicians³ happy to use the space under arrangements generating a steady flow of government revenue. Such a scheme profoundly alienates the public about the value of government programs for the poor which rely on taxpayer funds." The judge also noted that he was not intruding on the board's authority to impose its own sanctions. The judge denied the petitioner's request for a stay of sentence until the Appeals Court ruled on his appeal from his convictions, as did a single justice of the Appeals Court.

Based on the convictions of Medicaid fraud, in September, 2003, the board issued a statement of allegations against the petitioner and referred the matter to the division of administrative law appeals (DALA) for a hearing. In January, 2004, the petitioner filed an answer in which he admitted that he was convicted and sentenced, but contested the validity of the convictions. Following a prehearing conference, he filed several motions to dismiss and a motion to stay the proceedings.

Instead of proceeding to a hearing, counsel for the board (complaint counsel) filed a motion for summary decision pursuant to 801 Code Mass. Regs. § 1.01(7)(h) (1998), stating that there was no genuine issue of material fact concerning the petitioner's convictions of Medicaid fraud. The petitioner filed an opposition to this motion, arguing that there were five legal and factual issues precluding summary decision.⁴ His request for leave to conduct discovery aimed at demonstrating the invalidity of his convictions was denied.

In August, 2004, an administrative magistrate (magistrate) found no disputed material facts concerning the petitioner's convictions, rejected his legal arguments, including those made by motion, and recommended that the board impose discipline pursuant to G.L. c. 112, § 5 (g), and 243 Code Mass. Regs. § 1.03(5)(a)(7) (1994). The board notified the parties that it would hold a hearing concerning the appropriate disposition and invited them to submit memoranda on the disposition, but the scope was limited to matters contained within the record. Each side was allowed ten minutes to address the board. The petitioner submitted his objections to the magistrate's decision, a motion for remand and reconsideration (which the board opposed), and a memorandum on disposition. In addition to his disposition memorandum, the petitioner submitted a personal statement and an affidavit concerning the circumstances surrounding his convictions (with supporting documentation), as well as affidavits and letters from other physicians attesting to his fitness to practice psychiatry and their belief that his convictions for the testing referrals were inappropriate. The petitioner also submitted a motion to stay the disposition of his case until his criminal appeal was resolved.

In addition to a disposition memorandum, complaint counsel also submitted a motion to strike the petitioner's affidavit and several exhibits the petitioner attached to his memorandum on the ground that they were beyond the scope of the record. The board denied the motion, ruling that it would consider them only as they related to the issue of sanctions.

Although there is no transcript of this hearing, the petitioner states that his argument exceeded the time the board allocated. He also states in his reply brief that he submitted "additional information."

The board issued its final decision and order on November 17, 2004. It adopted the magistrate's recommended decision, adding that it had the authority to discipline a physician whose conduct undermines public confidence in the integrity of the profession, had a duty to police the profession, and had disciplined other physicians in similar circumstances. After considering all the mitigating factors the petitioner provided, the board revoked the petitioner's license. The petitioner filed a petition for judicial review with a single justice of this court. G.L. c. 112, § 64. He also filed an emergency motion requesting, among other things, that the single justice stay the board's order pending appeal from his criminal convictions, which was denied. The petitioner filed an interlocutory appeal from the single justice's decision and an unopposed motion to reserve and report his petition to the full court. The single justice allowed the motion to reserve and report and consolidated the matters.

Discussion. 1. The board's authority. The board has both statutory and regulatory authority to take action against a physician who has been convicted of a crime. See G.L. c. 112, § 5(g) (authorizing sanctions where "proof ... physician... has been convicted of a criminal offense which reasonably calls into question his ability to practice medicine"); 243 Code Mass. Regs. § 1.03(5)(a)(7) ("complaint against a physician ... may be founded on ... [c]onviction of any crime"). See also Raymond v. Board of Registration in Med., 387 Mass. 708, 710-711, 443 N.E.2d 391 (1982). The board also has the authority to discipline a physician whose conduct undermines the public confidence in the integrity of the medical profession or who lacks good moral character. Id. at 713, 443 N.E.2d 391, citing Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 528, 392 N.E.2d 1036 (1979).

2. Standard of review. A person whose license to practice medicine has been revoked may petition the court for review. G.L. c. 112, § 64. The court may modify or set aside the board's final decision only if the petitioner demonstrates that the decision was not in accordance with standards set forth in G.L. c. 30A, § 14(7). Weinberg v. Board of Registration in Med., 443 Mass. 679, 685, 824 N.E.2d 38 (2005). Moreover, the court will not substitute its own judgment concerning the penalty the board imposes. Levy v. Board of Registration & Discipline in Med., supra at 528-529, 392 N.E.2d 1036.

3. Res judicata. We begin by providing background to the petitioner's claim that the board could not proceed against him because of principles of res judicata and collateral estoppel.

In March, 1999, following the 1998 indictments, the board issued a statement of allegations against the petitioner, stating that it had reason to believe that he was illegally prescribing drugs. On the same day, complaint counsel filed a memorandum in support of summarily suspending the petitioner, and the petitioner was suspended. In the memorandum, complaint counsel explicitly stated that authority was lacking for the board to consider the indictments for Medicaid fraud for purposes of summary suspension.⁵ The board referred the matter to DALA. An administrative magistrate held a hearing and recommended that the summary suspension be stayed until a full hearing could be held and a final decision issued.

Subsequently, a hearing on the statement of allegations was held before the magistrate. The recommended decision stated that the petitioner was charged with illegally prescribing drugs (benzodiazepines) "and otherwise render[ing] substandard psychiatric care to 12 patients during the 1990's."...