Professional licensure litigation: Time for a statute of limitations?

Issue November/December 2017 By Kenneth R. Kohlberg
Health Law Section Review

A case study

Consider the emergency room physician who nearly three years ago was transferring an elderly psychiatric patient from the emergency department to the hospital floor. The patient was yelling and flailing her arms and biting at the physician, and the physician raised his voice to quiet the patient and physically placed her into a wheelchair. Although the patient never lodged a complaint, two of the nurses complained to their supervisor that the physician had screamed at the patient and forcefully moved her to the wheelchair.

The hospital interviewed the nurses and the physician. The hospital concluded that the physician violated the hospital’s standards of care and that his verbal and physical interaction with the patient was inappropriate and inconsistent with applicable standards of conduct. The physician resigned in protest and found another job. Meanwhile, the hospital reported the “complaint” to the medical board.

The physician explained to the board that the patient transfer was challenging and that he had done the best he could to effectuate the transfer without incident. The physician pointed out that the patient was not harmed and did not lodge a complaint. The physician maintained that the evidence in the case would show that his care and treatment of the patient was within the standard of care.

A full-year passed and the physician heard nothing from the board. Then, in June of 2016, the physician received a letter from the board together with a proposed “Consent Agreement” requiring him to voluntarily surrender his license for a period of six-months. The physician declined and requested an adjudicatory hearing.

Ordinarily, the next step in the process would be for the board’s prosecutor to prepare and issue an Order to Show Cause (“OTSC”) which would constitute the formal commencement of the disciplinary proceeding. At present, however, the prosecutor has yet to issue the OTSC. When asked about the continuing delay, the prosecutor has stated that “this is not my oldest case by a long shot” and that he will issue the OTSC “when I get around to it.”

It has been three years since the incident. The physician is uncomfortable with the case hanging over his head. He wants to get on with his life. Is there a time limit, he asks, for the prosecutor to issue the OTSC? Are there legal grounds to move to dismiss this case?

Legal grounds

Massachusetts courts may set aside board decisions that are “unreasonably delayed,” particularly when the court finds that “the substantial rights of any party may have been prejudiced” because the decision was “made upon unlawful procedure.” Weiner v. Board of Registration of Psychologists, 416 Mass. 675 (1993). As the SJC has noted, the rules governing practice and procedure before the boards require that they are to be “construed to secure a just and speedy determination of every proceeding.” Although the applicable statutes and regulations do not fix a specific time period for the board to act, the law “imparts to the board the responsibility of diligently pursuing matters for which it is responsible.”

In Weiner, the SJC found that “despite the seriousness of the accusations” lodged against the practitioner, the board “failed to proceed in a manner which was just or speedy.” The court found that the board “abused the procedures that govern adjudicatory proceedings” and that it “failed to construe and apply the adjudicatory rules governing its proceedings to provide a just and speedy determination.” Since the board’s decision suspending the practitioner was “based on unlawful procedure,” the court in Weiner reversed the decision and ordered the board to dismiss the complaint.

The physician in our case study has not yet suffered the multiple “false starts and stops” which transmogrified the administrative process in Weiner. But still, in anticipation of further delay, there are several arguments he may wish to consider.

Three years. When the three-year anniversary of the fateful transfer arrives, the physician could contend that the three-year SOL for medical malpractice actions should bar the disciplinary action against him. The policy behind the med-mal SOL is to prevent the loss of evidence and fading memories of witnesses from hindering a fair trial. As the court in Wang noted, “witnesses may disappear and the passage of time itself may well dim or even eradicate the memory of the witnesses and thus preclude the construction of an adequate record.” Although the board is not bound by the med-mal SOL, the physician may argue that these same policies apply — particularly where witness testimony varies from or contradicts the contemporaneous record.

Four years. After four years, the physician could contend that the case is barred by the SOL set forth in G.L c. 260 § 5A, which governs consumer protection actions. Since professional licensing boards are essentially consumer protection agencies — and since professional licensing statutes and regulations constitute laws that are “intended for the protection of consumers” — the physician should argue that the “essential nature” of board disciplinary actions renders them subject to the four-year limitations period applicable to consumer protection actions. Anawan Insurance Agency v. Division of Insurance, 459 Mass. 592 (2011) (“The essential nature of the right asserted determines the appropriate statute of limitations”). This contention might not be successful as a matter of law, but it should be persuasive as a policy argument.

Six years. At six years, the physician could argue for dismissal on the basis of the medical board’s own “staleness” regulation which provides: “Except where the Complaint Committee or the Board determines otherwise for good cause, the Board shall not entertain any complaint arising out of acts or omissions occurring more than six years prior to the date the complaint is filed with the board.” 243 CMR 1.03(16) (“Stale Matters”).

Not all boards have a staleness regulation. But it is possible to argue before the dental board or the nursing board, or any other licensing authority, that the BRM regulation vindicates a worthwhile policy. Stale evidence is not reliable evidence. The use of stale evidence is prejudicial because it would require the physician — and every witness — to attempt to remember events that occurred so many years ago. Since the medical board itself considers a matter “stale” if the mistake occurred beyond six years, the physician should argue that the regulation precludes the board from instituting the disciplinary proceeding. This argument is likely to fail, however, because the regulation gives the board discretion to “entertain” a complaint whenever it finds there is “good cause” to do so.

Seven years. At seven years, the physician could argue for dismissal on the basis of the med-mal statute of repose, which is seven years from the date of the alleged mistake. The statute of repose is based upon the policy of “quieting” claims and sounds in the nature of procedural due process. In this regard, the physician should argue that the legislative intent and social policy behind the statute of repose should serve as a bar to the board’s prosecution. Naturally, he will have to find a way to distinguish the Wang case.

In any case involving undue delay, a lawyer can argue that discrepancies in evidence should be construed against the enforcement authority that waited so long to prosecute the case. Had the practitioner known a complaint was coming, she may have preserved records that could legally be discarded after seven years. She may have written up a narrative while the incident was fresh in her mind, including details or identifying witnesses she would later forget. She may have even asked a lawyer to interview witnesses and memorialize their testimony. And even where records do exist, those notes do not constitute a comprehensive explanation of everything the doctor saw and considered and cannot explain why she made a particular decision. This is an even greater problem for older charts, created before electronic medical records became the standard.

None of these arguments will prevent a licensing board from imposing discipline over something that happened in 1970 if it wants to. They are policy arguments that may go to the weight or admissibility of the evidence. They are not a hard line preventing dilatory prosecution and a hard line is what is needed.

A hard line

Professional licensure cases implicate constitutionally protected rights. And the right to prompt administrative action implicates due process. The time has come for the Massachusetts legislature to enact a statute of limitations governing disciplinary proceedings against licensed healthcare professionals. Given the danger of dimmed memories and lost evidence, boards should be subject to a flat bar on disciplinary actions. When a case involves an alleged deviation from the standard of care, boards should be held to the three-year SOL in medical malpractice cases, particularly since the policy reasons are the same. With limited exceptions, prosecutions should be barred if the prosecution does not commence within five years after the alleged events. Until this happens, the courts should provide clear guidance as to how long practitioners must wait for the boards to commence disciplinary proceedings against them.

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