A professional license is a property right; it can't be taken
away without due process.1 This usually means a hearing
before the licensing board imposes discipline. But sometimes a
doctor or dentist presents an immediate and serious threat to the
public, and it is dangerous to wait. In those cases, the boards can
suspend the license immediately, as long as the practitioner gets a
hearing within seven days.
Summary suspensions - sometimes called temporary suspensions -
are unusual. The hearing officer may not have run into one before
and may be unsure what the proper procedure is or what standard of
proof applies. When that occurs, the consequences to the licensee
can be tragic. Summary suspensions are rare, in part, because they
harm a doctor's livelihood and reputation without a fair chance to
challenge the allegations. Anyone can file a complaint with a
licensing board, and many excellent practitioners go through months
of worry only to have the matter dismissed at an early stage. As an
expert witness in surgery once said to me, "Everyone has been sued
for malpractice." In the usual case, the doctor continues to
practice for months or years while the case grinds through the
But summary suspension is sudden. The doctor's career stops. His
or her reputation is destroyed, even if she/he is eventually
exonerated. The suspension disrupts connections with colleagues,
hospital administrators, insurance companies, and patients. And
when the matter is resolved, it is extremely difficult to
reestablish those relationships. In both of the cases I am going to
discuss, the doctors ultimately won - but the suspensions ended
their careers for years.
The Board of Registration in Dentistry doesn't differentiate
summary suspensions from ordinary suspensions in its statistics,
but the assistant executive director told me he can only remember
one in recent years. The Board of Registration in Medicine imposed
10 summary suspensions between 2011 and 2014, the last year for
which statistics are available. Five of those were in 2014.
A board will generally use this weapon where a doctor is insane
or assaultive or has committed a crime. There have been cases:
where the doctor's ability to practice medicine was impaired by
"mental instability;" where he sexually assaulted a patient during
treatment; where he illegally prescribed drugs and had committed
Medicaid fraud; or where he didn't actually have a medical degree.
When there is a real question about whether the treatment of a
particular patient met the standard of care, the doctor should
usually be allowed to practice until there is a full hearing.
A typical summary suspension regulation is 234 CMR 9.04. It
If, based upon affidavits or other documentary evidence, the
board determines that a licensee is an immediate or serious threat
to the public health, safety, or welfare, the board may suspend or
refuse to renew a license pending a final hearing on the merits of
the allegations regarding the licensee. A hearing limited to the
determination of the necessity of the summary action shall be
afforded the licensee within seven days of the board's action
pursuant to G.L. c. 112, § 52F.
Section 52F goes on to say, "Any suspension imposed by the board
shall remain in effect until the conclusion of the proceedings
including judicial review thereof … ."
That's not clear at all. The doctor gets a hearing in seven
days, sure. But how long after that does the doctor have to remain
in disgrace, without any way to make a living, if it turns out the
suspension wasn't necessary after all?
Consider the dentist who charged his patient $284,000 for dental
work over a period of two years. The patient's banker became
concerned by the amount and frequency of the patient's withdrawals
and alerted the town's elder-affairs officer. The officer
interviewed the patient - who had no problem with our dentist or
his charges - but concluded that this did seem to be an awfully
high bill. He applied for a criminal complaint for fraud and
assault and told the dental board that the dentist probably was
charging for work he was not doing. The board issued a summary
Seven days later at the hearing, it came out that the patient
was taking a particular medication with the occasional side effect
of bone loss in the jaw and persistent and repeated infections, and
the most appropriate way to treat the condition was through the
frequent minor surgeries and bone grafts our dentist had been
doing. The defense expert testified, "He may have saved her jaw."
The prosecution expert could not conclude that the treatment had
not occurred, nor could he say that it fell below the standard of
care or that the charges were excessive.
The hearing officer declined to issue a decision at the close of
the evidence. She said she would comply with the regulations on
administrative procedure. But the regulations don't say how soon a
decision has to issue. These officials are busy. They can take
years to write a decision.
Usually, the dentist continues practicing during this time. Life
goes on. But with a summary suspension, the dentist's life and
practice are also suspended. Even after the hearing officer does
her thing, there are all these procedures, each with its own time
limit, for a draft report, objections, a revised decision, and
approval by the board. This process can drag on for 230 days after
the draft decision issues, longer if someone obtains an
The hearing officer wasn't swayed by this line of argument. She
wrote, "Although due process may require promptness, it also
requires fairness, thoroughness, and clarity." She said it could be
several months before the draft decision was ready.
The dentist filed a petition with the SJC arguing that due
process requires a prompt decision. The petition cited cases from
the Supreme Court and from other states where delays of even fifty
days were held unconstitutional. A Florida decision was exactly on
point when it said, "When the state undertook to temporarily
restrict the petitioner's privilege to practice medicine it had an
affirmative duty to grant a post-suspension hearing and one that
would be concluded without appreciable delay." Ampuero v. Dep't
of Prof'l Regulation, Bd. of Med. Examiners, 410 So.2d 213,
214 (Fla. Dist Ct. App. 1982).
The day before the SJC hearing, the draft decision issued and
the board approved it. The SJC case was moot. We still don't know
if the ruling on a summary suspension hearing has to be made at the
close of evidence, if it has to be reasonably prompt, or if it can
just issue whenever the hearing officer has time.
The dentist got his license back, and the board declined to
prosecute the principal complaint. The criminal complaint was
The dentist got a hearing seven days after his suspension. It
took 10 months to get his license back. In that time, he lost his
office lease, his patients had dispersed, and the newspapers had
trumpeted his disgrace. It took him nearly three years to return to
Another question - we do have an answer this time - is what
standard of proof the prosecution has to meet.
An eminent surgeon specialized in gastric bypasses for obese
patients. He had done more than 6,000 of these operations over a
30-year career. He held important posts at the state's best
hospitals and had been director of surgery at one. In 2012, four of
his patients had postsurgical infections - one of which was held
not to be his fault. Of the remaining three patients, one died and
The Board of Registration in Medicine imposed a temporary
suspension based mainly on the opinion of an expert witness who was
not identified. At the hearing, the doctor presented several
witnesses who were identified. They analyzed each of the cases and
opined that the doctor had met the standard of care and that his
outcomes for the period in question exceeded the national averages.
They spoke in glowing terms about his skills and learning. One said
he would happily refer his own family to this surgeon. Another
called him "the local father of bariatric surgery."
You would think that all of this testimony - against hearsay
from an anonymous witness2 - would make it impossible
for the board to prove that the doctor posed an immediate and
serious threat to the public. But then, you would also think that
it was the board's burden to prove its case.
Not so much. No one seemed to know who had the burden or by what
quantum of proof. The magistrate admitted, "To be honest with you,
I am unclear what the evidentiary standard is … . I'm really
unclear at this point whether I should be weighing one expert's
opinion against the other, because the board's approach seems to be
basically, 'We made out a prima facie case so issue the summary
suspension.'" Complaint Counsel answered that this was an "appeal"
of the board's decision, and that the magistrate was required to
uphold the summary suspension if it was based on substantial
That makes sense, right? That's the standard for administrative
appeals. Everyone knows that. The agency's decision is upheld if it
is based on "such evidence as a reasonable mind might accept as
adequate to support a conclusion." So that's what the magistrate
did. He held that the anonymous expert opinion provided substantial
evidence to support the summary suspension.
It should have been obvious that there was no administrative
decision that could be entitled to deference. All the board did was
proffer charges. An administrative hearing has procedures to
protect the rights of the defendant - procedures the board never
used. There was no orderly presentation of evidence. There was no
prehearing conference, no testimony under oath, no evidentiary
rulings, no draft decision, no opportunity for an opening and
closing, no record of objections and rulings, no record of which
exhibits were admitted and which were not, no transcript or
recording of the proceedings, and no attempt to settle the record.
The magistrate was wrong when he said the board's decision had
support in "the record." There was no record.
Even if it had used all the required procedures, the medical
board does not have the power to conduct disciplinary hearings
under G.L. c. 30A. That's the province of the Division of
Administrative Law Appeals (DALA). The magistrate was conducting
the hearing, not the appeal. And the board had to prove its case by
a preponderance of the evidence.
Later, at the SJC, the board stuck with its argument that the
proper standard proof was substantial evidence. This, they said,
was an easier standard to meet than preponderance. That's just
wrong. The two terms are not comparable. Preponderance of the
evidence is a quantum of proof; substantial evidence is a standard
When you conflate two dissimilar standards, you switch the
burden of proof. Under a preponderance standard, the board has the
burden to prove its case. Under a substantial evidence standard,
the doctor has the burden to show that there was no evidence that
could reasonably support the suspension. If the decision was based
upon any evidence that a reasonable mind would accept, the board
wins - even if a preponderance of the evidence strongly favors the
doctor - even if the magistrate would have decided the case
How about the argument that substantial evidence is a lower
standard than preponderance? There is no lower standard!
Preponderance of the evidence means "more likely than not." What
lower standard did the board want to use? Less likely than not?
Kind of likely? Mezza mezza?
A single justice of the SJC reversed and clarified that the
board had to prove its case at DALA by a preponderance of the
evidence. So back to the magistrate it went. Under the correct
standard, the magistrate found that the doctor was not a danger to
the public after all.
The doctor was unjustly deprived of his license for three years.
After all this time, nothing has been decided than whether the
summary suspension was proper. We have not even reached the merits
of the actual case. The doctor has lost hundreds of thousands of
dollars in income and paid substantial legal fees. The
Boston Globe and other papers have reported the
downfall of the father of bariatric surgery. Even if, at the end of
this road, the doctor's license is restored, he will need
recertification as a surgeon before he can return to work.
Given the danger of an unjustified deprivation for an indefinite
time, it's worth asking whether any board should have the power to
summarily suspend a license. For example, when the SJC feels a
lawyer poses a threat of harm to clients, it issues a notice to
show cause and offers a predeprivation hearing. Why not have a
similar procedure for doctors?
The answer is probably that a lawyer's mistake can't produce
immediate physical harm the way a doctor's mistake can, and lawyers
can't write drug prescriptions. When a doctor is dangerous, the
board needs to act right away. But there should be better
The licensing boards should enact regulations for an outside
limit on summary suspensions. A board should be able to suspend a
doctor for up to 30 days in an emergency - subject to the
requirement of a hearing in seven days. If at the end of the 30
days, the board has not proven by a preponderance of the evidence
in a G.L. c. 30A hearing that the doctor poses an immediate and
serious danger, the suspension should cease by operation of law. If
the boards do not act, then the legislature should. And until that
happens, the courts should provide guidance about how long a doctor
can be deprived of his or her license without proof of a serious
and immediate threat.
The alleged danger to the public has to be balanced against the
doctor's constitutional rights. A licensing board should require
convincing proof from witnesses who are identified and credible,
and it should require documents that are authenticated and
And it should be the right kind of case - where the doctor is
assaulting patients or selling drugs or staggering into surgery
with bourbon on his breath. The conduct should be really bad and
the doctor's fault should be really clear. It should not be a case
where there is a reasonable disagreement about what occurred or
what the standard of care was or how high a bill should be.
Upon review, the administrative judge should allocate the
burdens correctly and demand the proper quantum of proof. In cases
where it is reasonably clear that the doctor does not pose a
serious and immediate threat, an oral decision should issue at the
close of evidence, with a written decision to follow within a week.
In a close case, the written decision should issue in no more than
thirty days. Health professionals need protection from the
accusation that is weak on the merits, but can take years to fight
while the professional has no income and her career withers
We have been asked to minimize footnotes and case citations.
If you have questions about any legal principle I've discussed,
contact me, and I'll be happy to provide the authority. As long as
we are down here together, let me thank Andrew Hyams, my co-counsel
on one of the cases I'm discussing. He reviewed this article and
made suggestions that improved it greatly.
The prosecutor told the magistrate that it is the Board's
normal practice not to disclose the identity of an expert until the
discovery phase of the proceedings, "[s]o this is typical." I don't
think this practice is normal or defensible, but the explanation
seemed to satisfy the magistrate. The SJC reversed on other grounds
and did not reach the question of whether hearsay from an anonymous
witness can ever satisfy the standard for expert