A Novel Defense Strategy Reverses a Summary Suspension in 28 Days

Andrew L. Hyams Andrew L. Hyams

Andrew Hyams won a reversal of a summary suspension at the Board of Registration in Medicine in 28 days, utilizing a legal procedure not included in the Board’s summary suspension regulation. In the past, it has taken doctors months and years to reverse summary suspensions. Mr. Hyams co-counseled the case with Kenneth R. Kohlberg, Esq., of Concord, MA.

On February 20, 2020, the Board issued a Statement of Allegations claiming that a doctor had fraudulently obtained a MA medical license in 2015, by not disclosing his involvement in a 2011 traffic accident that had led to a criminal conviction. The doctor self-disclosed the accident to the Board in 2016. When the Board issued the Statement of Allegations, the Board also alleged that the doctor was an immediate threat to the public health, safety and welfare, and suspended his license pending the outcome of the case. As per the Board’s regulations, the doctor was entitled to a hearing within seven days on the necessity of the summary suspension.

Rather than take the costly evidentiary hearing, on February 26, the doctor’s defense team filed a Motion to Dismiss, stating that even if everything in the Board’s Statement of Allegations was true (and much of it was not), those allegations did not establish that the doctor was an immediate threat to public safety necessitating summary suspension. A Motion to Dismiss in a summary suspension case is novel and does not appear to have been attempted previously. The Motion to Dismiss cited 15 Board precedents from 1989 to 2019.

On March 6, the Hearing Magistrate granted the Motion to Dismiss and issued a “Recommended Decision” in the doctor’s favor. Under state regulations, the Board’s lawyer had 30 days to respond to a Recommended Decision, but the defense team successfully argued that under the U.S. Supreme Court case Barry v. Barchi, the Board had to issue a final ruling within 30 days of the original February 20 summary suspension, even if state regulations provided for more time. The Board put the case on its March 19 agenda and accepted the Magistrate’s recommendation that the Board reverse itself.

While the doctor’s career has been severely damaged, even with the suspension being reversed so quickly, using the novel Motion to Dismiss procedure in a summary suspension expedited the result and avoided the substantial costs of an evidentiary hearing.

About Attorney Andrew Hyams

Attorney Andrew L. HyamsAndrew L. Hyams specializes in representing physicians and other health professionals in licensing and disciplinary matters before their respective regulatory boards. He served as the General Counsel at the Massachusetts Board of Registration in Medicine for five years. Andy has also been Deputy General Counsel at the Boston Public Health Commission. He is admitted to practice in Massachusetts and New York.

Andy can be reached at ahyams@kcl-law.com or 781-997-1566.