Wang v. Board of Registration in Medicine

• Decision Date: 04 May 1989
• Parties: John W. WANG v. BOARD OF REGISTRATION IN MEDICINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

537 N.E.2d 1216

405 Mass. 15

John W. WANG v. BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 6, 1989.

Decided May 4, 1989.

Lee J. Dunn, Jr. (Richard W. Mable, Boston, with him) for plaintiff.

Douglas H. Wilkins, Asst. Atty. Gen., for defendant.

Before LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

By an amended complaint, the plaintiff, John W. Wang, seeks judicial review of a decision of the Board of Registration in Medicine (board) revoking his registration to practice medicine in the Commonwealth. The plaintiff argues that the board lacked jurisdiction to initiate proceedings to revoke his registration to practice because his license had expired before the board initiated proceedings, and because the alleged misconduct occurred more than one decade earlier. The plaintiff argues further that, if the board did have jurisdiction, its decision was not supported by substantial evidence. A single justice of this court reserved and reported this case to the full court. ¹

The record reveals the following facts. In July, 1971, Wang joined the staff of St. Joseph's Hospital (hospital) in Lowell. At a May 21, 1974 meeting, the department of medicine of the hospital decided to recommend to the executive committee that the plaintiff's privileges be reduced from "M-1" to "M-3" status, whereby he would be allowed to admit, but required to transfer any patient to another physician within twenty-four hours of admission. With M-3 privileges, the plaintiff would not be entitled to read electrocardiograms.

The plaintiff filed suit in the Superior Court, on July 25, 1974, seeking to restrain the hospital from reducing his privileges. A Superior Court judge entered a preliminary injunction restraining the hospital from reducing Wang's privileges pending further hearings by hospital authorities and judicial review.

A hearing was convened before a medical committee of the hospital, with Dr. Bousquet, chief of the department of internal medicine, presiding. The plaintiff and his counsel participated in the discussion and questioned other participants. The medical department substantiated charges made against the plaintiff, and recommended to the executive committee that the plaintiff's staff privileges be reduced to M-3 status. The plaintiff's privileges were so reduced on April 4, 1975.

Wang then obtained an order in the Superior Court impounding all records in the case and enjoining the hospital from disclosing the reduction of privileges until a hearing on the merits. A Superior Court judge entered a directed verdict against the plaintiff on June 22, 1982. By a letter dated July 20, 1982, the hospital informed the board of the April 4, 1975, reduction in the plaintiff's privileges. ²

The board formally initiated disciplinary proceedings against the plaintiff by issuing an order to show cause on December 10, 1986. The board alleged that the hospital had curtailed the plaintiff's admitting privileges due to questions concerning his professional competence. The board alleged that (1) Wang falsely described his professional background by claiming he had been trained in the insertion of permanent pacemakers at Boston City Hospital; (2) on one or more occasions, Wang failed to respond to emergency calls; (3) Wang treated five patients inappropriately; and (4) on several occasions, Wang formed opinions as to patients' conditions based on information not contained in the patients' records, and misstated clinical results in one patient's record.

After a hearing, the board rejected the first allegation that Wang had misrepresented his credentials regarding the insertion of permanent pacemakers; it found against the plaintiff on the other charges. On March 16, 1988, the board revoked Wang's registration to practice medicine and his inchoate right to reestablish himself as a licensed physician simply by reregistering.

1. The Board's Jurisdiction.

The plaintiff argued before the board, and argues on appeal, that the lapse of his license prior to the board's issuance of an order to show cause deprived the board of jurisdiction to issue and proceed on its order to show cause. The board does not dispute that Dr. Wang's registration to practice medicine in Massachusetts lapsed well before the board initiated its adjudicatory proceedings against the plaintiff on December 10, 1986. ³

General Laws c. 112, § 5, mandates that the board "investigate all complaints relating to the proper practice of medicine by any person holding a certificate of registration." This provision is ambiguous in resolving the question before us because the statute fails to state explicitly whether the board's jurisdiction pertains to persons holding certificates at the time of the investigation or to persons holding certificates at the time of the alleged misconduct.

On his or her original application, a qualified applicant receives two entitlements, first to be registered as a qualified physician, and secondly, to receive a certificate of registration. G.L. c. 112, § 2. Under § 2, a registered physician must renew his or her certificate of registration every two years. "The certification of registration of any physician who does not file a completed renewal application together with the fee shall be automatically revoked, but shall be revived upon completion of the renewal process" (emphasis added). Id. We note that the statute does not prevent the plaintiff from applying for renewal even after his registration has expired, and that renewal may come years after the renewal period has lapsed. See 243 Code Mass.Regs. § 2.06(2)(a) (1986) ("Revocation for failure to renew prohibits the licensee from practicing medicine until she [or he] has completed the renewal requirements").

The Supreme Court of Connecticut recently considered whether the Connecticut Medical Examining Board had jurisdiction to revoke the license of a Connecticut physician even though his license expired prior to the initiation of revocation proceedings. Stern v. Medical Examining Bd., 208 Conn. 492, 493, 545 A.2d 1080 (1988). The court held that the board had no jurisdiction to revoke the license. Id. at 497, 545 A.2d 1080. Central to the court's conclusion was a statutory scheme stating that anyone who fails to renew his or her license, "shall be notified by the department that his [or her] license or certificate shall become void ninety days after the time for its renewal ... unless it is so renewed. Any such license shall become void upon the expiration of such ninety-day period" (emphasis added). Conn.Gen.Stat. § 19a-88(f) (1987). This language contrasts sharply with the Massachusetts provision that the certificate of registration of a physician who fails to renew "shall be automatically revoked, but shall be revived upon completion of the renewal process" (emphasis added). G.L. c. 112, § 2. The Massachusetts statutory scheme leads us to conclude that the board retained jurisdiction over the plaintiff. The board's order revoking the plaintiff's registration, at a minimum, revoked Dr. Wang's inchoate right to reestablish his status as a licensed physician in Massachusetts simply by completing the renewal process. ⁴

It is true, as the plaintiff argues, that the board could have waited to initiate proceedings against him until Wang filed an application for renewal. See 243 Code Mass.Regs. § 1.03(11) (1987) (stating that board can "refuse to renew a license pending a hearing on the question of revocation if the health, safety or welfare of the public necessitates such summary action"). We cannot say, however, as a matter of law, that the board must wait for Wang's renewal application to initiate disciplinary proceedings rather than doing so when his misconduct became known to the board.

The board's purpose is protection of the public interest, and when the board exercises its statutory function of conducting disciplinary proceedings, it is pursuing that purpose. Alsabti v. Board of Registration in Medicine, 404 Mass. 547, 548 & n. 1, 536 N.E.2d 357 (1989). See Raymond v. Board of Registration in Medicine, 387 Mass. 708, 713, 443 N.E.2d 391 (1982). "[I]t is logical and sensible that, where such grave charges of ... unprofessional or dishonorable conduct are alleged, the Board has the right to preserve [any] evidence ... of these charges; otherwise witnesses may disappear and the passage of time itself may well dim or even eradicate the memory of the witnesses and thus preclude the construction of an adequate record." Cross v. State Bd. of Dental Examiners, 37 Colo.App. 504, 508, 552 P.2d 38 (1976). As the board's hearing officer who heard Wang's amended motion to dismiss stated, a jurisdictional standard must confer authority to discipline physicians who commit misconduct while fully licensed; otherwise a physician's obligation to respond to charges arising out of his or her licensure would be defeated and the board's public protection function would be frustrated.

The plaintiff argues further that the delay by the board in instituting its disciplinary proceedings constitutes a waiver and that the proceedings are barred by laches. We disagree. Laches is not generally a bar where a public right is being enforced. Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 675, 234 N.E.2d 727 (1968). Lincoln v. Giles, 317 Mass. 185, 187, 57 N.E.2d 554 (1944). Furthermore, the hospital was enjoined as a result of the plaintiff's legal actions, from disclosing its reduction of the plaintiff's privileges until June, 1982. The board's delay until December, 1986, to conduct its investigation and to issue an order to show cause was lengthy, but not so inexcusable in these circumstances as to bar the proceedings.

Finally, the plaintiff objects to the board's jurisdiction on Federal and State constitutional due process principles. The plaintiff does, however, have sufficient "minimum contacts" with Massachusetts to...