Are Doctors Being Suspended and Having Their Licenses Revoked On the Basis of Insufficient Evidence?

And ... Did the MA Board of Registration Quash the MA Supreme Court Justice's Ruling?

Feb 26, 2021

As many CPR subscribers are familiar with, actions taken by some medical licensing boards (MLBs) to suspend a physician’s license in the context of allegations of impairment or danger to the public have routinely been executed with almost giddy disregard of a physician’s due process and civil rights.

They’ve gotten away with this abuse of power for so long that it’s become virtually de-facto precedent-setting. It’s as if everybody in the medical and legal professions simply takes it as a given that when a MLB determines (through some elusive process) that a doc is potentially impaired or potentially a danger, then that’s considered to be the non-appealable ruling from the equivalent of the state’s medical Supreme Court or the infallible pronouncement from the state medical papacy and its college of cardinals.

That’s not to say the legal and medical professions have actually agreed to it. It’s just that it’s been virtually impossible to challenge.

While we won’t go into detail about how this came to be accepted as the law of the land, let’s just name the confluence of forces that have – until very recently – created this perfect storm of administrative state legalized career assassination.

Make laws that give administrative agencies extraordinary power that is virtually incontestable.
Make contesting one’s case so burdensome and labyrinthine that no mere human doctor and single counsel can ever expect to prevail.
Ensure that the process is so costly and protracted that the charged doc whose license has been subjected to emergency suspension has depleted all savings and has no income.
Remove any mechanism for the state which made the law and the executive branch that signed it into law to examine the law’s defects and its catastrophic harms.
Lull medical societies into believing that this is the “accepted legal standard.”
Lull judges into believing that this is the accepted legal standard and that by exercising such deliberate justice, not only are such impaired docs are actually getting gold-standard care, interfering with this salvific process would be a great disservice not only to society but to the afflicted doc who could be so beneficially rehabilitated by this intervention.
- It’s the “Judge, you’ll be doing more harm to the doc and to society if you tie this up with a lot of ‘evidentiary standards’ and due process mumbo-jumbo” argument.
Publicize the doctor-outlaws hangings to ensure that the public is wowed and reassured, albeit falsely, that the MLB is doing its job to “protect the citizens from dangerous practitioners.”
Disincentivize the legal profession in representing such doctors by making them so costly to represent, by prejudicing any possibility of a fair hearing, and by depriving the docs of due process through false portrayal of the alleged impairment or public danger.
Despite no governmental oversight and not a shred of something resembling “internal controls,” give the MLB and its satellites of para-professionals a truckload of virtually impenetrable immunities making them free to dole out any and all punishment and affirm any and all infallible diagnoses delivered by their exclusively contracted fitness-for-duty assessment partners with utterly no fear of litigation.
Have in place a robust private prison system that gives the medical patina to the unfair disciplinary process and enables the doc to be funneled into a costly nightmarish rehabilitation system run by a rapacious for-profit addiction treatment industry ever-hungrier for referrals from their exclusively contracted MLBs and PHPs.
And perhaps most importantly, in the remote event that a plaintiff doc’s case navigates all the judicial hurdles (a years-long ordeal) and looks like it’s going to prevail in court, arrange an acceptable payout tied to a strict non-disclosure agreement so that the cascade of procedural wrongs and law violations will never be detailed in court documents.

After more than ten years of study and engagement in detailed case study and consultation with hundreds of physicians, it’s becoming apparent that this is the anaerobic environment that enables this toxic administrative state to breed and lead to career lethality.

My longtime colleague and relentless researcher Michael Langan MD, editor of the Disrupted Physician blog, has been studying this longer than I have. Like so many others, he discovered that the more you challenge the Stalinist powers that be, the more ensnared you become. You’re thrust into a Kafkaesque medical regulatory therapeutic complex,* an otherwise invisible administrative underworld replete with its own para judicial kangaroo court and abundant sycophantic treatment providers, “monitors,” drug testers and board-deferential lawyers who know, like patients treated by Nurse Ratched, just how far you can go to advocate for your client without invoking their vengeful ire.1

Michael had the ridiculous audacity to challenge - repeatedly - the supreme authority of the MA BORIM, the dreaded Board of Registration in Medicine. By all rights, he meets the criteria as a refusenik, that diagnostic category invented by Soviet Psychiatry to serve the state’s need to involuntarily commit those who were so – what? … out of their minds – to dare challenge the State. Clearly, they needed “treatment.” And indeed they got “the treatment.”

Despite many defeats, Michael began looking at the otherwise mundane wording of the laws and procedures which govern BORIM’s specially-empowered quasi-prosecutorial unit which interfaces with the equally Kafkaesque physicians health program which makes no bones about denying due process or facilitating willy-nilly diagnoses and employing SAMHSA-prohibited false positive drug tests to “confirm” their diagnostic hunches.2 And in his exploration, he discovered that the BORIM president Dr. Candace Sloane had served way in excess of her allowable term in violation of state law.

Michael writes: “Sloane did not "retire" from the board she involuntarily resigned after I argued to a DALA magistrate last year the illegality and illegitimacy of her nine-year reign as sitting board-chair (and even board-member for that matter). It is my understanding the board (not wanting to risk the consequences of DALA confirming the illegitimacy of her serving as board-chair beyond the legally established time-limits) forced her to "retire" and she reluctantly did so.”

Now, what’s especially significant about this is not only that Michael’s discovery compelled her resignation. Soon afterward, a host of defense attorneys shared their pent-up fury about her cavalier violations of due process and violations of the evidentiary legal standard in the deliverance of BORIM’s justice.

In an article published in Lawyers Weekly on July 30, 2020, law journalist Kris Olson spoke with multiple attorneys who had represented physicians on license defense issues before the board.

First, it’s vital to call attention to a pattern that has long been suspected but never previously substantially asserted in this way: most physician license suspension cases never even get as far as an administrative appeal. The “ … majority of medical board suspensions are never reviewed by DALA (an appeal for evidentiary hearing not only requires a procedural opportunity [as governed by the administrative law process] to do so, it requires the temerity, resources and will to proceed with the challenge).”3

Sloane immediately wrote a letter to the editor criticizing the piece and took the opportunity to pose herself as the public’s protector. That didn’t sit well with numerous defense attorneys who’ve represented docs.

Former board attorney W. Scott Liebert who is quoted extensively in the article suggests many of these problems were caused by Sloane whose approach to suspending doctors, he observes, was analogous to the saying on the Vietnam era politically incorrect T-shirt which read "Shoot 'em all, let God sort 'em out."

Following Olson’s expose’, a group of 25 "alarmed" attorneys submitted a joint letter to the editor (Remarks of medical licensing board’s ex-chair alarm lawyers Aug 27, 2020) commenting that the entire bar should be as alarmed. They felt it was incumbent upon present board members to publicly disavow Sloane and to publicly repudiate and reject her approach to her adjudicatory responsibilities.

Michael writes “The consequences of Sloane's "suspend 'em all, let God sort 'em out" approach to her adjudicatory responsibilities for the past decade have been far-reaching and grave. There are many doctors in Massachusetts whose careers, families, and lives were ruined by Sloane.” He adds that untold numbers died by suicide. And as Liebert noted in the article - patients also were harmed by being deprived of the expert medical care of the many excellent doctors who were victims of Sloane’s evidentiary standard abuse.

But even more striking was this remarkable revelation: 9 of the 11 cases (81%) of medical board suspensions reviewed by the Massachusetts Division of Administrative Law Appeals (DALA) in the past 5-years were overturned by DALA Magistrates because they did not meet the "preponderance of evidence" standard required by law (Justice Robert Cordy’s 2015 MA SJC decision).

In other words, the legally requisite evidentiary standard for license revocation and perhaps even the initial pre-hearing emergency suspension was wholly absent. The cases did not meet the legislatively requisite proof standard which is “preponderance of the evidence.” Boiling this down to its essence, this means that in the vast majority of cases reviewed, there was insufficient evidence to legally justify such draconian measures as removal from practice.

But as many know, MLBs customarily strong-arm licensees into accepting some form of a “plea deal” that will expedite their gainful return to practice and end this financially and psychologically draining ordeal. And of course their attorneys, knowing the gross deficiency and change-refractoriness of the system, encourage them to consent (i.e. enter into a “consent agreement”) which virtually commits them to a guilty plea, in essence a false confession, in exchange for their return to practice. (Alas, it may not be a board-free journey from there.)

In the MA SJC in Randall v. Massachusetts Board of Registration in Medicine (2015), Justice Robert J. Cordy explicitly clarified the evidentiary requirements. “While I agree that the standard for appellate review by courts of the adequacy of the evidence supporting administrative decisions is ‘substantial evidence,’ I disagree that that is the standard to be applied in the first instance,” Cordy wrote. “While due process requirements may be lessened in the context of a temporary suspension, resulting in shorter time frames and the consideration of the available evidence in less than pristine or complete form, such a suspension must still be based on the preponderance of the evidence actually considered.”

Here’s the summary question as resolved by MA SJC.4, 5

Randall v. Massachusetts Board of Registration in Medicine
THE ISSUE: Can a temporary suspension by the Board of Registration in Medicine be based merely on substantial evidence — rather than a preponderance of the evidence — that the licensee poses an immediate and serious threat to the public health, safety or welfare?
DECISION: No (Supreme Judicial Court)
LAWYERS: Joel Rosen of Andover, and Andrew L. Hyams of Kerstein, Coren & Lichtenstein, Wellesley (plaintiff), Board of Registration in Medicine (defense)

Clearly the thrust of this ruling has immense implications, and I suspect not just for docs in MA. The entire matter of what degree of evidence is required of the board in order to satisfy the threshold justification for a state-ordered emergency or final suspension is vitally important. It could be the critical difference that prevents scores of unjustified career death sentences meted out yearly.

Physician Interrupted

Discussion about this post