The plaintiff Alexander T. Arthurs, a physician licensed by the Commonwealth, seeks judicial review of the decision of the Board of Registration in Medicine (board), revoking his license to practice medicine in the Commonwealth of Massachusetts. The board found that Arthurs prescribed controlled substances for other than a legitimate medical purpose, in violation of G.L.c. 94C, § 19 (a).
The plaintiff claims that (1) the board's decision is unsupported by substantial evidence; (2) the board erred by basing its decision on one of its adjudicatory opinions decided after Arthurs's conduct had occurred; (3) the board erred in its treatment of Arthurs's objections to the recommended decision of a hearing officer; (4) the doctrine of double jeopardy bars the board's disciplinary proceeding on the ground that Arthurs was acquitted in the Superior Court of charges growing out of the same conduct; and (5) that the disciplinary proceedings are barred on the ground of entrapment. We conclude that the decision of the board should be upheld.
After Arthurs made written and oral objections
The specific findings made by the board are that: (1) Arthurs issued, without explanation, repeated refill prescriptions for controlled substances over relatively short periods of time; (2) Arthurs failed to exercise minimum care in preventing persons from obtaining multiple prescriptions from him for controlled substances under different pseudonyms; (3) Arthurs failed to exercise minimum care in obtaining and recording the addresses of patients for whom he was prescribing controlled substances over extended periods of time; and (4) Arthurs repeatedly failed to record an appropriate medical history, and to record an appropriate physical examination, in instances where controlled substances were prescribed.
The board concluded that, "[f]rom the extensive evidence submitted, it is clear that [Arthurs's] behavior was not an isolated incident or oversight, but a pattern of intentional or
1. The substantiality of the evidence. Arthurs claims that the decision of the board is unsupported by substantial evidence, and therefore must be set aside. G.L.c. 30A, § 14 (7) (e). "`Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion." G.L.c. 30A, § 1 (6). Initially, we note the limited nature of our review under the substantial evidence standard. While we must consider the entire record, and must take into account whatever in the record detracts from the weight of the agency's opinion, Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966), as long as there is substantial evidence to support the findings of the agency, we will not substitute our views as to the facts. Martin v. Director of the Div. of Employment Security,
We summarize the facts found by the board. A. Charles Jackson and David Jackson.
The facts found by the board also indicate that Arthurs failed to record on a patient card four prescriptions for Quaalude, two for David Jackson and two for Charles Jackson. It also found that six prescriptions for controlled substances issued to David Jackson were recorded on Charles Jackson's patient card, and that a prescription for Quaalude for one Margaret Jackson was recorded on Charles Jackson's card.
The patient cards, the board found, showed that Arthurs recorded Charles Jackson's address on his first visit as 108 Pearl Street, Cambridge, and David Jackson's address as 108 Pearl Street, Somerville. The first visit of this patient under his two names occurred on two consecutive days. Arthurs used the two addresses interchangeably thereafter.
B. Gail Diamond.
Arthurs's prescriptions directed Diamond to take one tablet daily. Over the forty-nine days covered by the first five prescriptions, the board determined that Arthurs issued prescriptions which exceeded the one tablet daily dosage by 200%. The board concluded that there might be an explanation for one of the surplus prescriptions,
C. Thomas Price. Thomas Price
The findings that prescriptions for controlled substances were not recorded, or were recorded on the wrong patient card, as well as the findings as to the quantity of drugs prescribed at short intervals to patients in excess of Arthurs's specific directions to take one tablet daily, all support the board's conclusion that Arthurs prescribed controlled substances for other than a legitimate medical purpose.
The board also could find that Arthurs prescribed controlled substances not in the usual course of his medical practice and acted other than for a legitimate medical purpose "from evidence... surrounding the facts and circumstances of the prescriptions" (emphasis supplied). United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). See United States v. Larson, 507 F.2d 385, 387 (9th Cir.1974). We conclude that on the above facts and circumstances, the board's decision is amply supported by substantial evidence.
We comment briefly on certain other findings of the board in its decision. The board also found that Arthurs's recordkeeping, and certain of his medical practices, were deficient in some respects. We cannot consider these findings because there is no substantial evidence in the record to support these findings.
If an agency wishes to rely on a fact, that fact must be established by evidence in the record. An agency may introduce technical or specialized facts in the record through expert witnesses, or by taking official notice of facts. G.L.c. 30A, § 11 (5). Whatever method it chooses, the board must make certain that sufficient evidence is in the record for a court to review the evidence on which the agency relies.
As we read the board's decision, it concentrated on Arthurs's overprescribing, his failure properly to identify David and Charles Jackson, and the obvious mistakes in the patient cards concerning the prescriptions in evidence. The over-all facts and circumstances established by substantial evidence permitted the board to conclude that Arthurs was not acting for a legitimate medical purpose in prescribing controlled substances. Determinations as to the effect of conduct is essentially a matter of drawing inferences, and an agency's conclusions based on inferences will not be set aside by a reviewing court unless they are unreasonable. We
2. Reliance on the Baer decision. Arthurs challenges the revocation of his license on the ground that the hearing officer, and the board, took notice "of general, technical or scientific facts" without notifying him of the materials so noticed as required by G.L.c. 30A, § 11 (5).
In its decision, the board drew inferences from the findings of fact as to Arthurs's conduct. "[T]he Board is, as is any other trier of fact, accorded the power to draw reasonable inferences from the evidence before it." NLRB v. Milk Drivers, Local 338, 531 F.2d 1162, 1165 (2d Cir.1976). "One of the purposes which lead to the creation of such boards is to have decisions based on evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." American Broadcasting Cos. v. Writers Guild of America, West, Inc., 437 U.S. 411, 433 (1978), quoting from Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800 (1945). Radio Officers' Union v. NLRB, 347 U.S. 17, 48-49 (1954). The board's conclusion that Arthurs prescribed controlled substances for other than legitimate medical purposes is a reasonable and permissible inference from the evidence. See supra at 308-309.
Arthurs next argues that the board should have utilized rulemaking rather than adjudication in establishing standards for determining when a physician unlawfully prescribes controlled substances. We disagree. It is a recognized principle of administrative law that an agency may adopt policies through adjudication as well as through
We do not think it inappropriate, much less erroneous, for the agency to use an ad hoc method of adjudication in disciplinary cases arising out of a criminal statute which is interpreted on an ad hoc basis by the courts. "It is the merit of the common law that it decides the case first and determines the principle afterwards.... A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step. These are advantages the want of which cannot be supplied by any faculty of generalization, however brilliant...." Matter of Roche, 381 Mass. 624, 639 n. 16 (1980), quoting Justice Oliver Wendell Holmes, Codes, And the Arrangement of the Law, 5 Am. L. Rev. 1 (1870).
Since the board's decisions are public, see 243 Code Mass. Regs. 1.04: (13) (1979),
Arthurs also contends that, since the conduct which gave rise to the charges against him took place prior to the Baer decision, any reliance on the Baer standards is barred as an ex post facto ruling. The short answer is that disciplinary proceedings fall outside the scope of the ex post facto doctrine. Hawker v. New York, 170 U.S. 189, 197 (1898). Foster v. Police Comm'rs, 102 Cal. 483, 492 (1894). Furnish v. Board of Medical Examiners, 149 Cal.App.2d 326, 330-331 (1957). The Hawker court, holding that a State may bar a convicted felon from the practice of medicine by way of legislation enacted after the individual's conviction, stated, "The State is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character." 170 U.S. at 196. Such a law is, rather than ex post facto, simply "retrospective insofar as it determines from the past conduct of the party his fitness for the proposed business." Furnish, supra at 331, quoting from Foster, supra at 492. Further, Arthurs's conduct was criminal under G.L.c. 94C, § 19 (a), and that statute was in effect prior to the conduct which culminated in discipline. Thus the board did not impose any new substantive liabilities on Arthurs. Cf. Commonwealth v. Klein,
3. The board's denial of Arthurs's objections to the recommended decision. After the hearing officer filed the recommended decision with the board, the board notified Arthurs of his right to file objections to that decision.
Arthurs argues that the board erred by not providing an adequate statement of reasons for overruling his objections. We disagree. First, while the board is required to afford parties adversely affected by a recommended decision of a hearing officer the opportunity to file objections to the decision, see note 29, supra, nothing in the regulations governing the board's adjudicatory hearings requires the board to respond specifically to those objections. Second, while G.L.c. 30A, § 11 (8),
Arthurs also argues that it was error for the board to have overruled those objections since the board did not have a copy of the hearing transcript when it made its ruling. The simple answer is that there is no requirement in the State Administrative Procedure Act that agency officials who are to render a final decision must review the transcript before ruling on objections to a proposed decision. Cf. G.L.c. 30A, § 11 (7). Arthurs urges us to impose a rule of procedure on the board. The board is responsible to the public for the discipline of physicians who abuse their obligations and the responsibilities of their profession. Since the board must "provide itself with the flexibility it needed to investigate and to determine whether the public interest requires the revocation of a physician's license," Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 526 (1979), we defer to the board's determination as to how it should proceed as long as its actions are consistent with the requirements of due process and G.L.c. 30A. We decline to impose a rule on the board which might unduly hamper its effective functioning. See Grocery Mfrs. of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 80 (1979).
4. Double Jeopardy. Arthurs argues that since he was acquitted in 1977 of charges relating to the issuance of prescriptions to Thomas Price (the undercover officer), and since the indictments as to Charles and David Jackson, and Gail Diamond were continued without a finding and then dismissed, see Commonwealth v. Brandano, 359 Mass. 332 (1971), the principle of double jeopardy bars the board from disciplining him. Arthurs claims that the disciplinary proceedings are punitive, and as such they are barred by the outcome of judicial proceedings. Arthurs argues that, since a person disciplined by a professional board is necessarily
5. Entrapment. Arthurs argues that the conduct of Thomas Price, the Massachusetts State Police Diversion Unit undercover detective, constituted entrapment.
The action is remanded to the single justice with directions to enter a judgment affirming the decision of the board revoking Alexander T. Arthurs's license to practice medicine.
On August 16, 1977, the United States Court of Appeals for the First Circuit reversed the judgment of the District Court and permitted the administrative proceeding to resume. Arthurs v. Stern, 560 F.2d 477 (1st Cir.1977), cert. denied, 434 U.S. 1034 (1978).
The board filed its answer to Arthurs's complaint on July 28, 1980, incorporating the documentary record as well as the transcripts of the disciplinary proceeding. The parties then filed cross motions for summary judgment. After hearing argument on these cross motions, a single justice reserved and reported the case for decision of all issues by us. Upon Arthurs's motion, the board subsequently stayed its disciplinary order until fifteen days after the issuance of a rescript from this court.