Welter v. Bd. of Registration in Med.
| Docket Number | SJC-13236 |
| Decision Date | 20 October 2022 |
| Parties | Ryan J. WELTER v. BOARD OF REGISTRATION IN MEDICINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alycia M. Kennedy, Boston (Paul Cirel also present) for the petitioner.
Samuel Furgang, Assistant Attorney General, for the respondent.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.
"First, do no harm." While apocryphal, this storied quotation attributed to Hippocrates, the father of modern medicine, embodies a higher standard to which we often hold our physicians. See Travers, Primum Non Nocere: Origin of a Principle, 71 S.D. J. Med. 64, 65 (Feb. 2018), quoting Hippocrates, 1 Epidemics in Adams, The Genuine Works of Hippocrates (1849) ("to do good or to do no harm"). This case implicates that higher standard; it concerns the question whether due process requires that the Board of Registration in Medicine (board) find the common-law elements of fraud, including, inter alia, the elements of intent and reliance, before it may suspend a physician's license to practice medicine on the basis that the physician violated 243 Code Mass. Regs. § 2.07(11)(a)(1) (2012), prohibiting "[a]dvertising that is false, deceptive, or misleading," and 243 Code Mass. Regs. § 1.03(5)(a)(10) (2012), prohibiting "engaging in conduct which has the capacity to deceive or defraud." Because the board's regulations, which by their plain terms do not require proof of the common-law elements of fraud, are rationally related to the Commonwealth's legitimate interest in protecting public confidence in the integrity of the medical profession and thus have a rational tendency to promote the health and safety of the public, we conclude that the regulations do not offend due process. Further concluding that the board's findings that the petitioner physician violated these regulations were supported by substantial evidence and that neither the findings nor the sanction imposed were arbitrary or capricious, we affirm the board's decision.
1. Background. a. Facts. The following facts were found by the administrative magistrate for the Division of Administrative Law Appeals (DALA) and are generally undisputed.
The petitioner, Dr. Ryan J. Welter, was licensed to practice medicine in Massachusetts in 2000 and has a certification in family medicine from the American Board of Family Medicine. He is the founder and manager of Tristan Medical Enterprises, P.C., which does business as New England Center for Hair Restoration (New England Hair). In 2011, Welter received an employment inquiry from Clark Tan, who attended medical school in the Philippines but who was not licensed to practice in the United States.1 Welter does not dispute that he knew Tan was not licensed to practice in the United States. Welter consulted with the Massachusetts Medical Society (MMS), however, and concluded that MMS regulations permitted him to delegate work to Tan as a nonlicensee. Welter hired Tan as a nonprofessional assistant, and Tan worked for New England Hair between January 2015 and November 1, 2017.
Welter maintained a website for New England Hair.2 Although Welter was the only licensed physician who worked at New England Hair during the relevant time period, the website contained statements indicating that multiple doctors and surgeons worked at New England Hair, proclaiming under the heading "What Sets Us Apart" that "our surgeons" had been solving hair loss problems for years, that "Dr. Ryan Welter and Dr. Clark Tan [are] ‘doctors’ doctors,’ " and that the center's "doctors" could correct other surgeons’ work. Tan's website biography identified him as "Clark Tan, M.D.," and stated that "Dr. Tan received his medical degree from Far Eastern University Institute of Medicine" and was a diplomat at East Avenue Medical Center. The biography did not indicate that the institute and center are located outside the United States or that Tan was not a physician licensed to practice in the United States. Throughout the website, Welter and Tan were repeatedly referred to in tandem. For example, the website stated: "Dr. Ryan Welter and Dr. Clark Tan have gained recognition in the field of hair restoration for their surgical skills." The website also included Welter's biography, which stated, "Dr. Welter is board certified, trained and licensed to perform hair restoration procedures for men and women." The biography did not specify that his certification is in family medicine.
Consistent with the website's suggestions that Tan was a licensed physician, Tan introduced himself to staff and patients in the offices of New England Hair as "Dr. Tan," and staff referred to him as "Dr. Tan."3 Welter permitted Tan to distribute business cards to patients identifying him as "Clark Tan, M.D." Consent forms drafted or approved by Welter included language that the signer would "authorize Dr. Ryan Welter, his associate doctors and/or such assistants as may be selected by him" to perform procedures.4
Welter delegated initial consultations to Tan.5 The consent form for these consultations stated that measurements of hair density "were taken by a doctor." Tan also sent an e-mail message to at least one patient considering New England Hair; the message touted the benefits of New England Hair over other clinics, stating that "[c]onsultation is done by a doctor and not by a salesperson as what typically happens in other centers."
In 2016, upon learning that Tan was not a licensed physician, two of New England Hair's patients -- each of whom was a physician -- complained to the board. After Welter learned about the complaints, he removed all references to Tan from New England Hair's website and changed Tan's position so that he would no longer conduct consultations, assist with procedures, or have contact with patients.
b. Procedural history. The board initiated a formal adjudicatory proceeding against Welter and referred the matter to DALA. After a review of the evidence and a multiday hearing, the administrative magistrate concluded that the board had met its burden of proving by a preponderance of the evidence its allegations with regard to false advertising on New England Hair's website and deceptive conduct that enabled Tan to present himself as a licensed physician from 2015 to 2017.6
The magistrate found that Welter had violated 243 Code Mass. Regs. § 2.07(11)(a), which prohibits "[a]dvertising that is false, deceptive, or misleading." The magistrate found the website statements referring to the plural "doctors," even if intended to be aspirational,7 could falsely lead the reader to believe that there were multiple licensed physicians at New England Hair. The magistrate found that the use of the plural was compounded by Tan's biography, suggesting that Tan was a licensed physician. In placing Tan on the same level as Welter by repeatedly referring to the two in tandem, the website deceptively implied that Tan was a licensed physician, particularly given that it obscured that he was educated and trained in the Philippines. The magistrate found, "Although the description of Tan's qualifications may have been technically accurate, even a careful reader might conclude that the East Avenue Medical Center, with its generic English name, is in the United States." The failure to disclose where Tan studied and trained prevented readers from understanding that the references to "doctors" and "surgeons" could not include Tan.
The magistrate also found it misleading not to disclose that Welter's board certification was in family medicine. The magistrate explained, "Although each element of the sentence is true by itself -- Dr. Welter is board certified, he is trained in hair restoration procedures, and he does possess the appropriate licensure to do those procedures -- together the adjectives describing Dr. Welter convey the message that Dr. Welter is board-certified in hair restoration techniques, either as a surgeon or as a plastic surgeon."8
Welter argued that the false advertising regulation, 243 Code Mass. Regs. § 2.07(11)(a), required more than just an advertising claim that is false, deceptive, or misleading; he contended that case law required the consideration of the common-law fraud elements of knowledge and intent to deceive, materiality, and reliance to the other party's detriment. The magistrate concluded that there was no reason to "depart from the well-established rule of regulatory construction" that the clear meaning of the regulation's words should be applied unless doing so would lead to an illogical result, citing Massachusetts Fine Wines & Spirits, LLC v. Alcoholic Beverages & Control Comm'n, 482 Mass. 683, 687, 126 N.E.3d 970 (2019). The magistrate thus declined to import additional elements into the regulation's plain meaning.
The magistrate also found that Welter violated 243 Code Mass. Regs. § 1.03(5)(a)(10), which prohibits "[p]racticing medicine deceitfully, or engaging in conduct which has the capacity to deceive or defraud." The magistrate found that Welter's conduct facilitated the impression that Tan was a licensed physician, and thus had the capacity to deceive. Welter contended that Tan was, in fact, a doctor and therefore that Welter's conduct in referring to Tan as such was accurate, but the magistrate found that the business cards, consent forms, and conduct of office staff "created a false and misleading impression concerning Tan's licensure status."
The magistrate also found four mitigating factors: that Welter (1) changed his website after learning of the complaints, (2) changed Tan's position after learning that the board disagreed with his construction of the delegation regulation, (3) had no history of discipline, and (4) had a reputation for honesty and integrity in his church community.
The board, after considering the parties’ objections, adopted the magistrate's findings of fact and conclusions of law. Following consideration of the parties’...
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