Complaint Filed Against a Physician in Boston: How the Massachusetts Board of Registration in Medicine Responds

Massachusetts Physician Facing a Board of Registration in Medicine Complaint

Massachusetts License Defense Attorney · Professional License Defense

Physicians in Boston practice inside some of the most closely watched institutions in the country: Massachusetts General Hospital, Brigham and Women’s, Beth Israel Deaconess, Boston Children’s, Dana-Farber, Boston Medical Center and the many practices affiliated with them. When a concern about a physician reaches the Massachusetts Board of Registration in Medicine, the Board’s process has its own rules and its own deadlines. One of them can be as short as ten days.

This guide walks through how the Board receives and investigates complaints, the Statement of Allegations, how cases are resolved by agreement or after a hearing, and where an appeal goes. The practical message: get counsel promptly and answer on time, through counsel.

The Board and its authority

The Board of Registration in Medicine serves within the Department of Public Health (G.L. c. 13, § 9). Under G.L. c. 112, § 5, the Board may discipline a physician after a hearing under Chapter 30A. Its procedures for complaints and hearings are in 243 CMR 1.00.

How complaints reach the Board

Any person, organization or Board member may file a complaint against a physician, and a complaint may be filed in any form. The Board may investigate anonymous complaints in its discretion (243 CMR 1.03(1)). The Board also receives reports required by statute, which its Complaint Committee and staff may review (243 CMR 1.03(14)).

A complaint must allege conduct that falls within the grounds listed in 243 CMR 1.03(5). Those grounds include, among others, fraudulently obtaining a license, criminal convictions, gross negligence, practicing while impaired, failing to answer a Board subpoena, malpractice, and misconduct in the practice of medicine. As a rule, the Board will not hear a complaint about acts or omissions more than six years old unless the Complaint Committee or Board finds good cause (243 CMR 1.03(16)).

A Board complaint is not a malpractice case

Many physicians face a Board matter and a malpractice claim at the same time. They are separate proceedings. A malpractice case is a civil lawsuit for money damages, brought by the patient. A Board matter is a licensing proceeding brought by the state to protect the public, and the Board decides it on its own record.

Settling the malpractice case does not end the Board matter. Board matters can, however, often be resolved by a negotiated agreement, as explained below. Coordinate your defense counsel in the civil case with your Board counsel so that what you say in one forum does not hurt you in the other.

The ten-day answer

A Board investigator conducts a preliminary inquiry, which can include asking for your answer (243 CMR 1.03(3)). The Complaint Committee may order you to answer the complaint within ten days. You may answer personally or through counsel, and the answer must address the substantive allegations (243 CMR 1.03(7)).

This deadline has teeth. If a physician does not answer within ten days, the Complaint Committee may recommend that the Board issue a Statement of Allegations, which is the formal charge (243 CMR 1.03(9)). The Board has discretion to extend time limits (243 CMR 1.02(5)), so if you need more time, your attorney should ask before the deadline. Do not assume an extension will be granted.

You may have read that a physician has “10 days to notify the Board that you have retained an attorney.” That is not the rule. No regulation requires it, but many Board letters ask you to tell the Board within 10 days whether you will be represented by an attorney. If your letter does, follow it. The ten days is the time to answer, when the Complaint Committee orders an answer. Never let the deadline pass in silence. Call counsel the day the letter arrives so the answer is accurate, complete and on time.

The investigation

If the complaint is not closed as frivolous or lacking merit, the Complaint Committee may conduct or order any reasonable inquiry or investigation it considers necessary (243 CMR 1.03(3)(b)). The Board or the Committee may also require you to attend a conference before any adjudication (243 CMR 1.03(4)). Investigations commonly involve medical records, hospital and office records, and review of the care by physicians in the relevant specialty.

Peer review records in Boston hospital cases

Many Boston complaints begin with a hospital review. Massachusetts protects the proceedings and records of medical peer review committees from subpoena and discovery in most cases, but that protection does not apply to investigations and proceedings of the Board of Registration in Medicine (G.L. c. 111, § 204). Records a hospital designates for its risk management and quality assurance program may also be inspected and used by the Board (G.L. c. 111, § 205). Assume the Board can see what the hospital saw.

Confidentiality

Until the Board issues a Statement of Allegations, dismisses the complaint, or takes other final action, its disciplinary records are confidential. Closed complaint files, however, are public records (243 CMR 1.02(8)). Your answer should be written on the assumption that others may read it one day.

Ways a complaint can be resolved early

  • Closure. The Complaint Committee may close a complaint if the evidence is insufficient or the complaint does not allege sanctionable misconduct (243 CMR 1.03(8)).
  • Assurance of Discontinuance. For minor violations, and for others where there is no patient harm and no allegation of drug or alcohol impairment, the matter may be resolved by an Assurance of Discontinuance negotiated at a conference with a Hearing Officer and approved by the Board. An Assurance must be reported to the national physician data system, and the physician can ask that the case not proceed this way (243 CMR 1.03(13)).
  • Informal action. When the Board reviews the Committee’s recommendation, it may take informal action instead of ordering a hearing (243 CMR 1.03(10)).

Summary suspension

If the Board finds, based on affidavits or documents, that a physician poses an immediate and serious threat to the public health, safety or welfare, it may suspend the license pending a final hearing. Where the threat is serious but not immediate, the physician first gets three business days to submit opposing evidence. A hearing on the suspension must follow within seven days (243 CMR 1.03(11)).

The Statement of Allegations

The Board does not use the label “Order to Show Cause” for physicians. It issues a Statement of Allegations, which orders the physician to appear in an adjudicatory proceeding and show cause why discipline should not be imposed. It is the Board’s Order to Show Cause under the Standard Adjudicatory Rules (243 CMR 1.01(2)).

The standard is not “probable cause.” The Board orders an adjudicatory hearing when there is reason to believe that the alleged acts occurred and violate a provision for which a physician may be sanctioned (243 CMR 1.03(9)-(10)). You must file a written answer within 21 days of receiving the Statement of Allegations (801 CMR 1.01(6)(d)(2)). Once your attorney files a notice of appearance, that counts as agreement to accept service on your behalf (243 CMR 1.02(2)(a)).

Consent Orders

Chapter 30A allows agencies to resolve adjudicatory proceedings informally by stipulation, agreed settlement or consent order (G.L. c. 30A, § 10), and c. 112, § 5 refers to the Board’s review of proposed consent orders presented by the parties. Many physician cases end with a negotiated Consent Order that the Board issues instead of holding a hearing. Published Board orders show the typical terms. The physician admits stated facts and agrees to a sanction. The Board has discretion to accept or reject the agreement. The physician usually waives any appeal.

A Consent Order is a public, final resolution, and its wording follows you to other states, hospitals and payers. Negotiate it with the same care as a hearing.

The hearing at DALA

If the case is not resolved, the Board refers it to the Division of Administrative Law Appeals (DALA). An administrative magistrate holds pre-hearing conferences and the evidentiary hearing, and then issues a Recommended Decision with findings of fact. The parties may file objections, and the full Board then issues its Final Decision and Order. The Board’s published decisions state that a magistrate’s findings based on credibility are entitled to substantial deference. A physician who does not participate can face a default.

At the hearing, each party may call and examine witnesses, introduce exhibits, cross-examine and present rebuttal (G.L. c. 30A, § 11). In standard-of-care cases, expert testimony in your specialty is often central.

Possible sanctions

Under G.L. c. 112, § 5, after a Chapter 30A hearing the Board may:

  • Revoke, suspend or cancel the physician’s registration
  • Reprimand or censure the physician
  • Impose a fine of up to $10,000 for each classification of violation
  • Require up to 100 hours of public service
  • Require a course of education or training
  • Otherwise discipline the physician

The outcome depends on the facts, any patient harm, the physician’s history and what the physician has done since.

Appealing the Board’s decision

A physician whose registration is suspended, revoked or cancelled may petition the Supreme Judicial Court under G.L. c. 112, § 64. The appeal does not go to the Superior Court. The court reviews the record under the standards in G.L. c. 30A, § 14(7), and it may not stay the suspension or revocation before it enters its decree. Because review is on the record, the evidence has to be put in at DALA.

What to do in the first days

  • Note the date you received the Board’s letter and any answer deadline. Ten days goes quickly.
  • Call an attorney before you contact the Board, the investigator or the complainant.
  • Do not contact the patient or family about the complaint.
  • Do not alter or add to any medical record.
  • Tell counsel about any related hospital review, privileges action, malpractice claim or prior Board history.
  • Answer on time, through counsel, and address the substantive allegations.

Getting help

Attorney Richard Alan Gaudet is an administrative law practitioner who handles board investigations, responses and hearings. He has been a respiratory therapist since 2005 and a registered nurse since 2010, including in critical care, so he reads clinical records with a practitioner’s eye. If you are a Boston physician who has received a letter from the Board of Registration in Medicine, contact our office promptly.

Frequently Asked Questions

How long do I have to answer a Board of Registration in Medicine complaint?

The Complaint Committee may order you to answer within ten days under 243 CMR 1.03(7). You can answer personally or through counsel. If you do not answer within ten days, the Committee may recommend a Statement of Allegations.

What is a Statement of Allegations?

It is the Board’s formal charge and serves as its Order to Show Cause. It issues when there is reason to believe a sanctionable violation occurred. A written answer is due within 21 days of receipt under 801 CMR 1.01(6)(d).

Can a Board of Medicine case be settled?

Yes. Many cases end with a negotiated Consent Order that the Board issues instead of holding a hearing, and minor matters may be resolved by an Assurance of Discontinuance. Settling a malpractice case does not end the Board matter.

Who hears a contested physician discipline case?

An administrative magistrate at the Division of Administrative Law Appeals holds the hearing and issues a Recommended Decision. The full Board then issues the Final Decision and Order.

Where do I appeal a Board of Medicine decision?

A decision suspending, revoking or cancelling a registration may be reviewed by petition to the Massachusetts Supreme Judicial Court under G.L. c. 112, section 64, not the Superior Court.

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About the Author

Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, and an experienced administrative law practitioner who represents licensed professionals in board investigations, responses and hearings. He has been a respiratory therapist since 2005 and a registered nurse since 2010, including in critical care. He earned his J.D. in 2020 and was admitted to the Massachusetts bar in January 2021 and to the U.S. District Court for the District of Massachusetts in 2021. He is a member of the Massachusetts Bar Association. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.

ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.