Any lawyer engaged in representing health care providers, both in civil litigation and before the boards of registration that oversee these professionals, has likely considered the impact that our actions in one forum may have on the other. Can my client’s response to a letter of inquiry from the Board of Registration be used as an admission if a civil case is later filed?1 If we settle this malpractice claim, will it create problems for my client at the board?
The following is an overview of the recent trends at the Boards of Registration in Medicine and Dentistry, resulting in enhanced focus on civil suits and their outcomes, and malpractice reporting.
Board of Registration in Medicine
Since at least 2019, a pair of Board of Registration in Medicine (BORIM) policies and regulations
2 has enabled the BORIM to investigate malpractice claims and discipline defendant-physicians based on the outcome. What is new and different since 2024 is the BORIM’s enthusiasm for enforcement of these provisions.
In 243 CMR 1.03(5)(a), the regulation enumerates the permissible bases for a complaint against a physician, pursuant to the authority of the BORIM under M.G.L. c. 112, § 61 to discipline its licensees. These bases of complaint include: “(17) Malpractice within the meaning of M.G.L. c. 112, § 61.” However, M.G.L. c. 112, § 61 does not actually define “malpractice.” Therefore, it is unclear what complained actions would be “within the meaning” of the statue. Absent a statutory definition of “malpractice,” the BORIM has filled the definitional void in two main ways.
First, the BORIM has taken the position that civil liability established by a jury verdict is dispositive of the question of whether the licensee committed malpractice. Under this claim-preclusion theory, a plaintiff’s verdict automatically starts the disciplinary process, thus enabling board discipline as of right.
See, e.g., In re Sachs, No. 225815 (Bd. Reg. Med. Aug. 15, 2024) (provider’s license reprimanded following trial where the jury entered verdict in favor of patient in the amount of $1.25 million). This position may incentivize physicians to settle cases, even when a reasonable defense is available, because a verdict could conclusively establish malpractice. Conversely, settlement of the civil suit could at least permit the physician to argue before the board against any complained malpractice. However, as discussed below, while an open board matter is pending, settlements in an amount greater than $1 million, or multiple settlements, may still trigger board action.
Second, the board has promulgated its own criteria under which malpractice
payments warrant review and, increasingly often, formal investigation. Under BORIM Policy 2019-04, the board receives information on malpractice claims and settlements. Specifically, the Complaint Committee and Licensing Committee of the BORIM review malpractice claims where: 1. The claim results in a payment, whether as a result of a settlement or a judgment; and 2. At least one of the following occurs: a. The physician has an open, docketed complaint at the time the board receives the report of the malpractice claim payment; b. The amount of the payment attributable to the physician is $1 million or more; or c. There are three or more paid claims attributable to the physician.
The board’s reissuance of Policy 2019-4, and its position in the
Sachs matter and other similar cases of post-verdict investigations, signals a renewed interest in seeking discipline for providers that meet certain criteria, which traditionally have been rarely enforced. These criteria should not be considered exclusive, or supportive of the position that the doctor is always safe authorizing a settlement below $1 million. The board can, and does, investigate deviations from the standard of care however it learns of them.
Board of Registration in Dentistry
Likewise, the Board of Registration in Dentistry (BORID) has sharpened its focus and follow-up on reports of malpractice claims. The BORID has traditionally enforced a “dollar threshold” for investigating settlement payments that is far below the BORIM’s $1 million minimum. The BORID’s threshold is not clearly stated like the BORIM’s threshold, but is believed to be $20,000.
Separate and apart from the
amount of a payment made on a dental malpractice claim, our firm has also recently seen self-referred complaints by the BORID alleging, as grounds for complaint, the dentist’s
failure to report a malpractice payment to the board. We argue that the board’s position in this regard is flawed for reasons of practicality and legal interpretation.
First, the BORID already receives a report from the National Practitioner Data Bank (NPDB) of any malpractice payments made on behalf of a dentist. Upon reviewing such a report, the BORID can, and does, open an investigation, if desired, into the care underlying the claim and the payment. The BORID is authorized, for example, to self-refer a complaint of alleged “inferior treatment,” which could reasonably apply to any malpractice claim. In other words, where the BORID already has broad authority to investigate and seek discipline for a malpractice claim, the “failure to report” is superfluous as a ground to investigate or discipline, and it purports to require reporting by the licensee in duplicate of mandated reporting already performed by the NPDB. Despite this argument, advanced by my firm and others like it representing providers before the BORID, for now, the board continues to require redundant reports.
Second, BORID counsel cites 234 CMR 9.03(hh) as requiring licensees to disclose to the BORID malpractice payments at the time they are made. The text of 234 CMR 9.03 lists “grounds for discipline,” and the ground identified by part (hh) is:
“The licensee fails to accurately report to the Board in writing, within 30 days, any disciplinary action, as defined by 234 CMR 9.00, taken against the licensee by an entity or its agent, including but not limited to, a governmental authority, a health care facility, an employer, a dental insurance company, or a professional dental or medical society (international, national, state or local).” (emphasis added)
Unfortunately — and stop me if you have heard this before — there is no definition [of “disciplinary action”] where the regulation says it is. In fact, the term “disciplinary action” is not used anywhere else within 234 CMR 9.00 other than at 9.03(hh). We also note that “disciplinary action” is not defined in the “Definitions” section of the BORID regulations at 234 CMR 2.02. Go figure.
We argue that the BORID should adopt the definition of “disciplinary action” that appears elsewhere within the BORID regulations at 234 CMR 4.02 (Reporting of Disciplinary Action. License Denial or Other Restriction of Professional Privileges). This regulation is instructive regarding what “disciplinary action” is and what should be reported. Though 234 CMR 4.02 relates to disclosures for license applications, and not reporting tied to a negotiated or consummated malpractice settlement, it is instructive because it mentions,
distinctly, disclosures of “disciplinary action” and information “concerning civil litigation related to the practice of dentistry.” At 234 CMR 4.02(2) and 4.02(3),
respectively and separately, the BORID deals with these two distinct categories of information reportable to the BORID in connection with an application for licensure. The term the BORID uses for a civil suit or claim resulting in settlement is “civil litigation relating to the practice of dentistry”; this is evident because 4.02(3) includes the specific example of a matter that “resulted in … a settlement with the applicant.” The term “civil litigation” is not included anywhere in 234 CMR 9.00, indicating to the reasonable reader that the regulations did not intend to require the licensee to independently report “civil litigation [that] resulted in … a settlement …” in connection with any event other than license applications. There are already 34 enumerated grounds for discipline within 234 CMR 9.03, and so we argue that certainly there was room for a 35th if that was the drafters’ intention. We argue, in response to self-referred BORID complaints citing a licensee for failure to report, that it is wholly unreasonable to expect a licensee endeavoring to follow the regulations to somehow conclude that where “disciplinary actions” and “civil litigation” are separately discussed in 234 CMR 4.02, in the context of 234 CMR 9.03, the former subsumes the latter.
The BORID’s regulations are confusing and unfair to anyone trying to follow them. The prudent practitioner should argue, in this situation, that based on any reasonable interpretation of the regulations, a licensee has no independent duty to disclose this settlement to the BORID, and therefore no violation of 234 CMR 9.03 exists. It remains to be seen how the BORID will react to this argument, offered in counter to this new and emerging trend in enforcement by the BORID. Unfortunately, and as noted above, even successful argument of this position will likely not be dispositive of the entire complaint, as separate permissible grounds for investigation and discipline (e.g., “inferior treatment”) will likely exist in any case where “failure to report disciplinary action” is also alleged by the board.
While this is a good argument, the best advice is for a dentist to report whenever the question of past settlements arises, even though this report virtually guarantees an appearance before the complaint committee.
Alexander E. Terry is a principal at Adler | Cohen | Harvey | Wakeman | Guekguezian LLP. Terry has devoted his practice primarily to the defense of health care professionals and institutions in medical malpractice actions and before the various boards of registration that oversee these professionals.1. Yes. A subject for another article …
2. 243 CMR 1.03(5)(a)(17) and BORIM Policy 2019-04 (2019, rev’d 2024), available at:
https://www.mass.gov/doc/policy-19-04-policy-relating-to-malpractice-revised-july-18-2024/download.