Levy v. Board of Registration and Discipline in Medicine

• Citation: 392 N.E.2d 1036,378 Mass. 519
• Parties: David A. LEVY v. BOARD OF REGISTRATION AND DISCIPLINE IN MEDICINE. 1
• Decision Date: 27 July 1979
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1036

392 N.E.2d 1036

378 Mass. 519

David A. LEVY v. BOARD OF REGISTRATION AND DISCIPLINE IN MEDICINE.

¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1979.

Decided July 27, 1979.

Roger S. Davis, Boston, for plaintiff.

Paul W. Johnson, Asst. Atty. Gen. (Garrick F. Cole, Asst. Atty. Gen., with him), for defendant.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

A single justice of this court reserved and reported the issue raised by the plaintiff's action: whether the conviction of a physician for serious criminal offenses may result in the revocation or suspension of a medical practitioner's license. We hold that (1) the Board of Registration and Discipline in Medicine (Board) has jurisdiction to promulgate a rule making conviction of a crime a ground for discipline; (2) Levy's crimes are closely related to the practice of medicine and thus are within the Board's statutory authority (see G.L. c. 112, § 5(B ), as amended through St.1975, c. 362, § 3); and (3) we find no reason to revise the Board's decision.

The plaintiff, David A. Levy, a licensed physician, was convicted of a number of criminal offenses arising out of payments made by the Commonwealth to Levy for the operation of nursing homes owned by him. ² The Board decided that "(t)he crimes to which (Levy) pleaded guilty are serious offenses against statutes closely related to the practice of medicine." The Board revoked Levy's license to practice medicine. We conclude that the Board has ample authority to revoke or suspend a physician's license on conviction of a serious crime.

The facts are not in dispute. On November 22, 1976, Levy pleaded guilty to three indictments containing thirty-one separate counts of grand larceny from the Massachusetts Department of Public Welfare and to sixteen indictments charging Levy with the submission of false data to the Massachusetts Rate Setting Commission. These charges grow out of Levy's conduct in the ownership and management of eleven nursing homes located in the Commonwealth. Levy was given a two-year suspended sentence, he was fined $32,250, and he was ordered to pay restitution totalling $313,854 to the Department of Public Welfare.

Two weeks after Levy's convictions, the Board issued an "Order to show cause" ³ why his certificate of registration in medicine should not be revoked, suspended or cancelled. The Board's Order to show cause listed Levy's criminal convictions.

The parties then entered into a stipulation of agreed facts, filed April 19, 1978. By this stipulation, Levy agreed to waive any "right to a hearing on the merits of the matters set forth in the Board's Order to Show Cause." Both parties waived the right to introduce evidence beyond the facts admitted in the stipulation, and the parties agreed to argue only the question of the appropriate sanction to be imposed by the Board. The parties later amended the stipulation in order to "present legal arguments as to the authority of the Board to impose sanctions in this matter."

After a hearing held by the Board on October 6, 1978, the Board issued a Memorandum of Final Decision and Order. The Board recited Levy's criminal convictions and determined that it had the authority to discipline Levy "for his criminal misconduct." The Board concluded that "(t)he crimes to which the defendant pleaded guilty are serious offenses against statutes closely related to the practice of medicine." Accordingly, the Board revoked Levy's license to practice medicine in the Commonwealth. ⁴

The essence of Levy's argument is that the Board lacked the authority to revoke his license on the basis of his criminal convictions because the crimes for which he was convicted were not directly related to the practice of medicine. ⁵ We do not agree.

In response to growing public concern about "the continued availability of medical malpractice insurance" the Legislature in 1975 enacted a statutory scheme designed to meet the crisis created by the volume of malpractice litigation. St.1975, c. 362. As part of its legislative policy the statute governing the Board of Registration and Discipline in Medicine was amended.

The statute, as amended, enables the Board to revoke, suspend, or cancel the certificate of registration (license) or otherwise discipline a physician for a number of specified reasons. ⁶ Additionally, the Board received a delegation of legislative authority and a mandate that it "shall, after proper notice and hearing, adopt rules and regulations governing the practice of medicine in order to promote the public health, welfare, and safety." St.1975, c. 362, § 3. The act provided that "nothing in this section (i. e., the section concerned with discipline) shall be construed to limit this general power of the board." Id. ⁷

Pursuant to this legislative mandate the Board on June 28, 1976, adopted a regulation making conviction of a crime a basis for discipline. See Rules of Procedure Governing Disciplinary Proceedings Before the Board of Registration and Discipline in Medicine (Rules of Procedure) § 3.5(a)(g) ("A complaint against a physician . . . may be founded on . . . conviction of any crime"). Levy claims that the Board's rule is an improper exercise of legislative power. He asserts that the absence of the words "conviction of a felony" in the statute precludes the Board from disciplining physicians who are convicted of a felony not directly related to the practice of medicine.

However, "(a)n agency's powers are shaped by its organic statute taken as a whole and need not necessarily be traced to specific words." Commonwealth v. Cerveny, 373 Mass. 345, 367 N.E.2d 802 (1977). See Simmons v. County of Suffolk, 230 Mass. 236, 237, 119 N.E. 751 (1918); Massachusetts Trustees of E. Gas & Fuel Assocs. v. United States, 312 F.2d 214, 220 (1st Cir. 1963), aff'd 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964). See also Creed v. Apog, --- Mass. ---, --- ^A, 386 N.E.2d 1273 (1979). Cf. Harborview Residents' Comm., Inc. v. Quincy Hous. Auth.,368 Mass. 425, 432, 332 N.E.2d 891 (1975). Compare Chakrabarti v. Marco S. Marinello Assocs., --- Mass. ---, --- - --- ^B, 386 N.E.2d 1248 (1979) (omission not accompanied by broad grant of authority). We do not think that in the context of the statute as a whole, the omission of "conviction of a felony" from the disciplinary list is dispositive, "(g)iven the strong public interest in promptly disciplining errant physicians." Arthurs v. Stern, 560 F.2d 477, 480 (1st Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978). Accord, Kansas State Bd. of Healing Arts v. Foote, 200 Kan. 447, 451-454, 436 P.2d 828 (1968) (omission of incompetency (malpractice) from list of fifteen grounds for revocation of physician's license does not preclude board from acting, even where prior form of statute had so provided); Hughes v. State Bd. of Health, 348 Mo. 1236, 1239, 159 S.W.2d 277 (1942) ("such specific enumeration does not thereby exclude other acts indicative of unprofessional or dishonorable conduct not mentioned in the statute. Any conduct, although not specified, which by common opinion and fair judgment is determined to be unprofessional or dishonorable may constitute grounds of revocation").

The role of the Board in the overall statutory scheme is to take primary responsibility in the regulation of the practice of medicine in the Commonwealth "in order to promote the public health, welfare, and safety." St.1975, c. 362, § 3. Where an administrative agency is vested with broad authority to effectuate the purposes of an act "the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' " Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, ---, 364 N.E.2d 1202 (1977), quoting from Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), quoting from Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 280-281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Moreover, "we are bound to test the regulations by the same standard which would apply to a statute. Thus, we must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate." Consolidated Cigar Corp. v. Department of Pub. Health, supra. See School Comm. of Wellesley, v. Labor Relations Comm'n, --- Mass. ---, --- - --- ^C, 379 N.E.2d 1077 (1978). See also Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 399, 444 F.2d 841, 857 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971) ("Discretion is particularly broad when an agency is concerned with fashioning remedies and setting enforcement policy"). See generally Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620-621, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

When the Legislature delegates to an administrative agency a broad grant of authority to implement a program of reform or social welfare, the administrative agency generally has a wide range of discretion in establishing the parameters of its authority pursuant to the enabling legislation. Where "the dominant theme in adoption of a statute is reform, . . . the administrator (should) construe the statute broadly to further the purposes of such reform." Blumrosen, Toward Effective Administration of New Regulatory Statutes, 29 Ad.L.Rev. 87, 95 (1977). Accord, Commonwealth v. Racine, 372 Mass. 631, --- - ---, 363 N.E.2d 500 (1977) (enforcement policy set by imposition of daily penalties for noncompliance with order to remove lead paint from residential premises); Consolidated Cigar Corp. v. Department of Pub. Health, supr...