Morris v. Board of Registration in Medicine

• Citation: 405 Mass. 103,539 N.E.2d 50
• Parties: Thomas A. MORRIS, Jr. v. BOARD OF REGISTRATION IN MEDICINE.
• Decision Date: 12 June 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 50

539 N.E.2d 50

405 Mass. 103

Thomas A. MORRIS, Jr. v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 8, 1989.

Decided June 12, 1989.

Despena Fillios Billings, Asst. Atty. Gen., for defendant.

Mitchell J. Sikora, Jr., Boston, for plaintiff.

Thomas R. Kiley & Dean P. Nicastro, Quincy, for Mass. Medical Soc., amicus curiae, submitted a brief.

Gail E. Horowitz & Alice E. Zaft, Springfield, for Women's Bar Ass'n, amicus curiae, submitted a brief.

Before WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The plaintiff physician, a psychiatrist, was charged before the defendant board with engaging in sexual conduct with a patient, which, if it occurred, would be a violation of G.L. c. 112, § 5(c ) (1986 ed.) ("gross misconduct in the practice of medicine"). The board referred the case to the Division of Administrative Law Appeals to hold a hearing and then to issue recommended findings of fact and a recommended decision. An administrative magistrate issued a recommended decision in which she concluded that the board had not proved the alleged misconduct. The administrative magistrate believed the physician and not his former patient. More than one year later, the board issued its final decision, revoking the physician's registration to practice medicine on the ground that he had engaged in sexual activity with his patient.

The principal issue of contention in the physician's appeal from the board's decision is whether the board, in the circumstances, was warranted in rejecting the administrative magistrate's determination of the credibility of the physician and the patient and in deciding that issue differently, based on its reading of the record. A single justice of this court concluded that the board was not so warranted, and he vacated the board's decision. The single justice concluded that the board did not have substantial evidence on the record to support its conclusion that the instances of alleged sexual misconduct occurred. The board has appealed. We affirm the judgment vacating the board's decision and order the matter remanded to the board for further proceedings consistent with this opinion.

Dr. Morris, who had practiced medicine since 1942 without a prior complaint, had an office on Marlborough Street in Boston. The patient began seeing him for psychotherapy on a weekly basis in May, 1977, because of anxiety arising out of her deteriorating marriage and a dispute over the custody of her daughter. The physician participated in support of the patient's attempt to obtain custody of her daughter. In August, 1979, the patient's divorce became final, and the former husband obtained custody of their child. He remarried immediately and, contrary to court order, took the child out of the country.

The alleged sexual conduct between the patient and the physician occurred in the physician's office in the months of September and October, 1979. The board makes no claim that the patient did not consent. The physician in turn concedes that it would be improper and not consistent with accepted medical practice for a psychiatrist to engage even in consensual sexual activity with a patient. At that time the patient was still seeking to regain custody of her child. The board concluded that the physician first engaged in sexual activity with the patient in early September, 1979. He attempted, unsuccessfully, to have intercourse with her. The patient testified that she felt that, if she did not comply, he would abandon her. The board found that during each of the successive sessions with the patient until she left the country in November, 1979, to attempt to regain custody of her child, the patient and the physician engaged in sexual activity, but that sexual intercourse was never consummated.

The board noted that the administrative magistrate's recommended decision provided no discussion of the evidence in explanation of her decision that no sexual activity occurred during any of the therapy sessions. The magistrate did say that her conclusion was "based in part on my finding that the testimony of the [physician] was more credible than [the patient's] testimony." She added that she had had ample opportunity to observe the demeanor of the witnesses, including their appearance and general bearing. She described the physician as a "compelling and credible witness," and found unconvincing the patient's testimony concerning repeated sexual encounters with the physician. ¹

In a thorough decision, explaining at length why it believed the patient, the board concluded that the evidence of sexual misconduct was overwhelming. It noted the advantage a psychiatrist has in relation to a patient; the particular vulnerability of the patient at the time the sexual activity allegedly occurred; the scheduling of the patient's appointments late in the afternoon; her statement on September 22, 1979, to an acquaintance (discussed later) which the board viewed as a fresh complaint concerning the physician's activity; the testimony of the patient's subsequent psychiatrist; the physician's disclosure of personal information about himself and his family to the patient; the conducting of therapy sessions away from his office; dining alone with the patient; allowing her bill to accumulate to an average of $4,000 and helping her once financially; and the contents of a letter the patient wrote to the physician from abroad in November, 1979. The board concluded that the physician engaged in inappropriate sexual and other activity with the patient that amounted to a violation of good and accepted psychiatric care, and gross misconduct in the practice of medicine in violation of G.L. c. 112, § 5 (c ).

The board would have been warranted in remanding the case to the administrative magistrate for supplemental findings and for more detailed explanations of her reasoning. It would also have been warranted in ordering a new hearing before a different magistrate. We reject, however, the board's decision that, in the circumstances, the board itself could properly make the finding that the physician had engaged in sexual activity with the patient. For reasons we shall explain, the board owed greater deference than it paid to the credibility findings made by the magistrate who heard the witnesses.

We agree with the board that the magistrate's recommended decision was sparse in explanation of her determination of the central factual issue. She said that she based her finding that no sexual conduct took place "in part on my finding that the testimony of the [physician] was more credible than [the patient's] testimony" (emphasis supplied), but she did not explain what else she relied on in making that finding. She did not discuss certain evidence and possible inferences from the evidence that tended to support the opposite finding. In this case, the magistrate should have made an explicit analysis of credibility and the evidence bearing on it. Although we are not as certain as the board that the magistrate was preoccupied with the absence of eyewitnesses, the board would have been justified in seeking a further explanation from the magistrate of the significance in her view of the absence of eyewitnesses.

The board also concluded that the administrative magistrate's decision may have been affected by certain evidence she improperly admitted. The board stated that the magistrate should have more closely controlled the admission of evidence of the patient's mental history. The probative value of this extensive evidence, the board said, "was completely overshadowed by the invasive nature and possible prejudicial effect." The board thought the unwarranted intrusion might have affected the patient's demeanor and thus improperly influenced the magistrate's findings on credibility. The magistrate did not expressly rely on this evidence. The board did not rule that the evidence was irrelevant. The rules of evidence generally do not apply in administrative hearings governed by G.L. c. 30A. G.L. c. 30A, § 11(2) (1986 ed.). ² Our reading of the record shows no intrusion that was so extensive or invasive on the subject of prior mental history as to have been likely to have prejudiced the patient in the eyes of an experienced administrative magistrate. An administrative magistrate must have considerable discretion, particularly early in a hearing, to admit evidence that is arguably relevant, particularly where, as here, counsel makes no objection that the evidence is prejudicial.

We share the board's concern that the magistrate, over repeated objection, permitted "the [physician's] counsel unfettered latitude to inquire into minute details of the Patient's sexual history." The magistrate doubted its relevance when she admitted that evidence. The board's decision says that the evidence was "of questionable relevance." We can see now that it had no relevance, and the physician does not argue here that it did. The public policy expressed in the rape-shield statute ³ and in our common law decisions ⁴ requires that an administrative magistrate reject that kind of evidence in a proceeding like this, unless the proponent of the evidence demonstrates that evidence of a patient's prior sexual conduct is more than marginally relevant to an important issue of fact.

We do not agree with the board, however, that the magistrate's decision to admit the evidence was an abuse of discretion or that she "improperly shifted the focus from the [physician's] alleged misconduct to the issue of a consensual relationship between the [parties]." At the time the evidence was admitted, counsel who then represented the physician made a representation. He argued that he would show that the patient mixed fact and sexual fantasy and that such a showing would be "extremely important in evaluating the veracity of the witnesses." That promise seems never to have been fulfilled as to the patient's statements about...