Raymond v. Board of Registration in Medicine

• Decision Date: 08 December 1982
• Citation: 387 Mass. 708,443 N.E.2d 391
• Parties: , 34 A.L.R.4th 600 Sherwin H. RAYMOND v. BOARD OF REGISTRATION IN MEDICINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 391

443 N.E.2d 391

387 Mass. 708, 34 A.L.R.4th 600

Sherwin H. RAYMOND v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 4, 1982.

Decided Dec. 8, 1982.

David Burres, Amherst, for plaintiff.

Ellen L. Janos, Asst. Atty. Gen. (Leah S. Crothers, Asst. Atty. Gen., with her), for defendant.

Before HENNESSEY, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

Raymond petitioned a single justice of this court for review of an order of the Board of Registration in Medicine, revoking his certificate of registration (license) to practice medicine. The single justice reserved and reported the following questions:

"1. Whether the Board of Registration in Medicine (board) had the right to revoke the plaintiff's license to practice medicine for conviction of a crime unrelated to the practice of medicine, in view of the 1977 amendment to the General Laws, as set forth in G.L. c. 112, § 5(g ), authorizing disciplinary proceedings against a physician who 'has been convicted of a criminal offense which reasonably calls into question his ability to practice medicine.'

"2. Whether the board's revocation of the plaintiff's license to practice medicine unconstitutionally deprives him of liberty and property without due process of law.

"3. Whether the board's procedures were unlawful, in so far as members of the board, including the hearing officer designated by the board to preside over the disciplinary proceedings, brought charges against the plaintiff and thereafter sat in judgment to determine the validity of these charges.

"4. Whether the board's decision is supported by substantial evidence and warranted by the facts.

"5. Whether the board's decision is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law."

We answer each question favorably to the board.

The board commenced an adjudicatory proceeding against Raymond by serving upon him an order to show cause. ¹ The order to show cause, as subsequently amended, alleged in material part: (1) that Raymond had sold under "clandestine circumstances" two automatic submachine guns and four pistols on or about May 4, 1974, in North Bergen, New Jersey; (2) that Raymond had transferred, in violation of 26 U.S.C. § 5861(e) (1976), and sold, under "clandestine circumstances," five unregistered pistols on or about May 15, 1974, in Newark, New Jersey; and (3) that Raymond had been convicted on June 25, 1975, in the United States District Court, District of New Jersey, of knowing possession of two unregistered automatic submachine guns, each equipped with a silencer, in violation of 26 U.S.C. § 5861(d) (1976).

The board assigned the case to a hearing officer, who conducted an evidentiary hearing. The hearing officer found that the allegations set forth in the order to show cause were proved. There was ample support in the evidence for these findings, and Raymond does not challenge them. The hearing officer recommended to the board that Raymond's license be revoked on the ground that he was not of such "good moral character" as to warrant his continued practice of medicine in this Commonwealth. The board adopted the hearing officer's findings, and concluded that Raymond "ha[d] been convicted of a criminal offense and ha[d] engaged in other unlawful acts which reasonably call[ed] into question his ability to practice medicine." The board revoked Raymond's license on three separate grounds: (1) conviction of a crime; (2) lack of good moral character; and (3) conduct undermining the public's confidence in the integrity of the medical profession.

1. The Board's Authority.

General Laws c. 112, § 5, as amended through St.1977, c. 165, provides that the board may revoke the certificate of registration of a physician upon proof that the physician "(g ) has been convicted of a criminal offense which reasonably calls into question his ability to practice medicine." Section 5 further provides that "[t]he board 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 and nothing in this section shall be construed to limit this general power of the board." ² On June 28, 1976, pursuant to the authority vested in it by c. 112, § 5, the board promulgated a rule making conviction of any crime a basis for discipline. See Rules of Procedure Governing Disciplinary Proceedings, § 1.03(5)(a)(7) (1979) ("A complaint against a physician ... may be founded on ... conviction of any crime") ³

Raymond contends that § 5(g ), which was added to c. 112 by St.1977, c. 165, invalidates the board's regulation which makes conviction of any crime a basis for discipline. He argues that the enactment of § 5(g ) demonstrates the legislative will that the board may discipline a physician for conviction of a crime only when the conviction reasonably calls into question the physician's ability to practice medicine. Raymond recognizes that in Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 526, 392 N.E.2d 1036 (1979), we held, without consideration of § 5(g ), added by St.1977, § 165, that the regulation in question was reasonably related to the legislative purpose of promoting the public health, welfare, and safety, and consequently was valid. The addition of § 5(g ) by St.1977, § 165, did not demonstrate a change in legislative purpose. Its enactment served only to expand the list of reasons for discipline set out in § 5. The regulation continues to be reasonably related to the statutory purpose, and continues to be valid. The legislative will in this regard is made clear by the provision in c. 112, § 5, that "[t]he board shall ... adopt rules and regulations governing the practice of medicine in order to promote the public health, welfare, and safety and nothing in this section shall be construed to limit this general power of the board " (emphasis added).

Raymond could be disciplined for his criminal conviction under c. 112, § 5, as well as under the board's regulations. Section 5(g ) provides that a physician is subject to discipline if he is convicted of a crime which reasonably calls into question his ability to practice medicine. The board correctly found that Raymond's conviction reasonably called into question his ability to practice medicine. To be sure, the conviction did not arise out of Raymond's medical practice. That is not essential, however. The ability to practice medicine requires not only technical competence, but also the unswerving dedication to employ it to preserve life, restore health, and alleviate suffering. See Levy v. Board of Registration & Discipline in Medicine, supra at 527-528, 392 N.E.2d 1036; Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 428-429, 132 N.E. 174 (1921) ("Mere intellectual power and scientific achievement without uprightness of character may be more harmful than ignorance. Highly trained intelligence combined with disregard of the fundamental virtues is a menace"). It is difficult to conceive of an attitude more antithetical to a commitment to preserve life, alleviate suffering, and restore health, than the mentality demonstrated by knowing possession of unregistered automatic submachine guns. See Cepulonis v. Commonwealth, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2089, 2091, 427 N.E.2d 17, appeal dismissed, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982) (lack of substantial Federal question) ("The Legislature may well have inferred from common knowledge that the unlicensed possession of machine guns is almost always associated with the commission of violent crimes with the potential for mass killings"). Raymond's conviction unquestionably calls into question his ability to practice medicine.

The board's second and third grounds for revoking Raymond's license were that he lacked good moral character and that his conduct undermined the confidence of the public in the integrity of the medical profession. As we have noted, the board has authority to "adopt rules and regulations governing the practice of medicine in order to promote the public health, welfare, and safety." G.L. c. 112, § 5. Lack of good moral character and conduct undermining the public's confidence in the integrity of the medical profession are not specifically included among the statutory or regulatory grounds for discipline. ⁴ The board, however, need not adopt its rules and regulations by formal rule making. Although formal promulgation may be the best practice, ⁵ the board may adopt policies by adjudication as well. Arthurs v. Board of Registration in Medicine, 383 Mass. 272, --- - ---, Mass.Adv.Sh. (1981) 849, 862-863, 418 N.E.2d 1226. The board did so here by announcing that lack of good moral character and conduct that undermines public confidence in the integrity of the medical profession are grounds for discipline.

Raymond contends that these are proper disciplinary grounds only if the offensive conduct occurs in the course of, or is "related to," the practice of medicine. This is the same argument that he advances against the board's authority to adopt a rule making conviction of any crime a basis for discipline, and it fails for the reasons stated in our discussion of that issue. Disciplining physicians for lack of good moral character, and for conduct that undermines public confidence in the integrity of the profession, is reasonably related to promotion of the public health, welfare, and safety. A physician's bad moral character may reasonably call into question his ability to practice medicine. In addition, conduct such as Raymond's, some of which led to criminal conviction, undermines the public's confidence in the integrity of the medical profession. The board has the authority to protect the image of the profession. Levy v. Board of Registration & Discipline in Medicine, supra 378 Mass. at 528, 392 N.E.2d 1036, and its second and...