Physicians under investigation are routinely unable to respond to Board of Registration in Medicine inquiries because they are unaware of the nature and specifics of the charges to which they are required to respond. The denial of copies of complaints and materials related to those complaints to the physician who stands accused violates the Board’s enabling statute and denies physicians their due process rights before the Board.
Under M.G.L. c. 112, § 5, a physician under investigation is entitled to “any complaint, report, record or other information received or kept by the board in connection with an investigation . . . .” Section 5 states, “[N]or shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation.” (Emphasis added. The entire text of the relevant portion of section 5 is in the footnote below.)
The statute could not be clearer, as confirmed in the Supreme Judicial Court’s observation more than a quarter of a century ago in Cronin v. Strayer, 392 Mass. 525, 533 (1984):
The Board of Registration in Medicine has a function similar to the I.P.C. [Impaired Physicians Committee of the Massachusetts Medical Society]. The board’s investigations are confidential by statute. However, the policy of confidentiality is inapplicable to a request made by a physician under investigation for the board’s investigative records and documents. See G. L. c. 112, § 5, fourth par. 10.
Nevertheless, the Board’s position is to routinely refuse to provide investigative materials to the physician. To give just one example, the Board can receive a hospital report about a physician concerning one patient. The Board follows up with the hospital and obtains information about ten additional patients. The physician is then called before the Complaint Committee and can be ambushed by accusations concerning the additional patients. At times, prosecutors have refused to provide the physician with a copy of the Complaint. The Board’s position is that the physician is entitled to such materials only after the Board votes a Statement of Allegations.
The Board reads M.G.L. c. 112, § 5 as allowing the Board to promulgate regulations modifying section five’s plain requirement that investigative records or information not “be kept confidential at any time . . . from the person under investigation. . . .” They assume that the phrase in the statute, “except to the extent that such disclosures of records or other information may be restricted as otherwise provided by law, or by the board’s regulation” modifies everything that comes after it in the sentence, including the independent clause “nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations.”
But the Board’s reading of the statute ignores one of the cardinal rules of statutory construction. “A basic tenet of statutory construction requires that a statute “be construed ‘so that effect is given to all its provisions, so that no part will be inoperative or superfluous.'” Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140, 691 N.E.2d 929 (1998), quoting 2A N. Singer, Sutherland Statutory Construction § 46.06 (5th ed. 1992).” Wolfe v. Gormally, 440 Mass. 699, 704 (Mass. 2004) (footnote omitted). See also, Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135, 145 (Mass. 2009).
The Board’s reading of section 5 renders the final phrase, “as the board shall determine by regulations,” superfluous. Thus, the Board’s interpretation of section 5 cannot be correct.
I was General Counsel at the Board from 1985 to 1990. During my tenure, it was the Board’s understanding of the statute, as expressed in what has been referred to as its “Designated Agency Regulation,” 243 CMR 1.02(11), that the final phrase” “as the board shall determine by regulations” modifies only the words “or other state or federal agencies, boards or institutions,” as these are the only parts of the sentence that required some fleshing out; the words “person under investigation” and “complainant” are self-defining. Indeed, over time the “fleshed out” list of “designated agencies” in 243 CMR 1.02(11) has been expanded to 22, as the Board has added state and federal agencies to the list in response to specific requests.
To avoid rendering superfluous the final phrase “as the board shall determine by regulations,” the only logical reading is for the Board to agree that it is limited to the Board’s using regulations to specify the boards and agencies eligible to receive investigation records. That leaves the issue as to how much of section five, paragraph 11, is modified by its first reference to Board regulations. Unless there is a “gap” in the sentence which is not subject to modification by the Board’s regulations, the final phrase “as the board shall determine by regulations” is superfluous. Thus, the issue is where does the “gap” begin and where does it end. The only sensible, grammatical and logical answer is that the “gap” begins at the beginning of the independent clause, “nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies. . . ” and the “gap” ends with the word “complainant.”
As it is clear that the Board does not have the authority under M.G.L. c. 112, § 5 to countermand the statutory requirement that the physician under investigation can have access to the investigative file “at any time,” it has never been necessary to reach the issue as to whether the Board has indeed ever promulgated a regulation that prohibits the physician from accessing the investigative file. Even if there were such a regulation, it would be in defiance of the Board’s enabling legislation.
There is nothing inappropriate policy-wise in giving the physician under investigation access to the investigative file. Under the Fair Information Practices Act (“FIPA”), M.G.L. c. 66A, § 2(i), the entire investigative file regarding any individual is available one year after the investigation commences. (Unfortunately, consistent with the Board’s years of ignoring the SJC’s conclusion in Cronin v. Strayer, it has been my experience that the Board has ignored valid requests for the investigative file, after one year, pursuant to the Fair Information Practices Act.)
Indeed, the better policy is to give the physician access to the investigative file. As a matter of fundamental fairness, a physician cannot be expected to adequately respond to an inquiry in which allegations are kept secret from him/her. Further, since the Statement of Allegations is the first public disclosure of the complaint, it is harsh to require that the charges, even if untrue, be publicly aired in order for the physician to simply find out what wrongdoing has been specifically alleged. The current practice gives Board prosecutors the ability to demand a “settlement” by threatening the physician with the publication of scandalous allegations without providing the physician with the specifics of those allegations. Finally, the Board’s continue breach of its enabling legislation allows prosecutors to withhold exculpatory evidence in the investigatory stage. In some cases, the prosecutor may even realize that the withheld is exculpatory.
The Board has never defended its practice on policy grounds. It has never explained how its mis-reading of its enabling statute protects the public or otherwise improves the practice of medicine in the Commonwealth. Instead, the Board’s response to the above arguments has been, in essence, to dig in its heals and say, “Sue me.” Given that the Board is content to ignore the SJC’s decision in Cronin v. Strayer, the better course might be legislation which imposes a civil penalty and attorneys’ fees when the Board ignores its enabling statute and violates a physician’s due process rights.
“The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board’s regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation by issuing an order to show cause, by dismissing a complaint or by taking other final action nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations. Any employee of the board who is found to be in violation of the confidentiality provisions of this section or any other confidentiality law or regulation which is applicable to the board shall be subject to a fine of not more than five hundred dollars. Said fine shall be assessed and collected by said board.”