Section 5: Investigation of complaints; remediation program; individual profiles; hearing; disciplinary action; immunity; confidentiality; notice; subpoenas; adjudicatory hearing decisions
Section 5. The board shall investigate all complaints relating to the proper practice of medicine by any person holding a certificate of registration under sections two to twelve A, inclusive, or of section sixty-five so far as it relates to medicine and report the same to the proper prosecuting officers.
There shall be established within the board of registration in medicine a disciplinary unit which will be responsible for investigating complaints and prosecuting disciplinary actions against licensees, pursuant to this section. The executive director of the board shall hire such attorneys and investigators as are necessary to carry out the responsibilities of the disciplinary unit.
The board is hereby authorized and directed to develop and implement, without cost to the commonwealth, a plan for a remediation program designed to improve physicians' clinical and communication skills. The board shall promulgate rules and regulations for such remediation programs which shall include, but not be limited to, the following provisions:
(a) the board shall offer a remediation program to physicians, on a voluntary basis, as an alternative to disciplinary action in appropriate cases as determined by the board;
(b) the board shall select providers of remediation and assessment services for physicians;
(c) the board shall make referrals of physicians to remediation and assessment providers, shall have the authority to approve individual remediation programs recommended by such providers and shall monitor the progress of each physician undertaking a remediation program;
(d) the board shall have the authority to determine successful completion of physician remediation programs and may make any further orders for probationary monitoring, disciplinary proceedings or other action as it deems appropriate;
(e) the board shall negotiate with insurance carriers, hospitals, health care providers, physicians and other affected parties to establish mechanisms for the funding of the remediation programs set forth in this paragraph; provided, however, that said board shall establish terms and conditions under which the primary financial obligation for an individual remediation program shall be borne by the affected physician.
There shall also be established within the board of registration in medicine a risk management unit. Said risk management unit shall provide technical assistance and quality assurance programs designed to reduce or stabilize the frequency, amount and costs of claims against physicians and hospitals licensed or registered in the commonwealth. The board shall promulgate regulations requiring physicians to participate in risk management programs as a condition of licensure; provided that such regulations shall provide for an exemption from such requirements for physicians who are participating in pre-existing risk management programs that have been approved by the board.
There shall be established within the board of registration in medicine a data repository which will be responsible for the compilation of all data required under sections five A to five J, inclusive, and any other law or regulation which requires that information be reported to the board.
The board shall collect the following information reported to it to create individual profiles on licensees and former licensees in a format created by the board that shall be available for dissemination to the public: (a) a description of any criminal convictions for felonies and serious misdemeanors as determined by the board; provided, however, that for the purposes of this clause, a person shall be considered to be convicted of a crime if the person pleaded guilty or was found or adjudged guilty by a court of competent jurisdiction; (b) a description of any charges for felonies and serious misdemeanors as determined by the board to which a physician pleads nolo contendere or where sufficient facts of guilt were found and the matter was continued without a finding by a court of competent jurisdiction; (c) a description of any final board disciplinary actions; (d) a description of any final disciplinary actions by licensing boards in other states; (e) a description of revocation or involuntary restriction of privileges by a hospital, clinic or nursing home under chapter 111, or of any employer who employs physicians licensed by the board for the purpose of engaging in the practice of medicine in the commonwealth, for reasons related to competence or character that have been taken by the governing body or any other official of the hospital, clinic or nursing home or employer who employs physicians licensed by the board for the purpose of engaging in the practice of medicine in the commonwealth after procedural due process has been afforded, or the resignation from or nonrenewal of medical staff membership or the restriction of privileges at a hospital, clinic or nursing home or employer who employs physicians licensed by the board for the purpose of engaging in the practice of medicine in the commonwealth taken in lieu of or in settlement of a pending disciplinary case related to competence or character in that hospital, clinic or nursing home or of any employer who employs physicians licensed by the board for the purpose of engaging in the practice of medicine or employer who employs physicians licensed by the board for the purpose of engaging in the practice of medicine in the commonwealth; (f) all medical malpractice court judgments and all medical malpractice arbitration awards in which a payment is awarded to a complaining party and all settlements of medical malpractice claims in which a payment is made to a complaining party; provided, however, that dispositions of paid claims shall be reported in a minimum of 3 graduated categories indicating the level of significance of the award or settlement; provided further, that information concerning paid medical malpractice claims shall be put in context by comparing an individual licensee's medical malpractice judgment awards and settlements to the experience of other physicians within the same specialty; provided further, that information concerning all settlements shall be accompanied by the following statement: ''Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician; provided further, that a payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred; provided further, that nothing herein shall be construed to limit or prevent the board from providing further explanatory information regarding the significance of categories in which settlements are reported; provided further, that pending malpractice claims shall not be disclosed by the board to the public; provided further, that nothing herein shall be construed to prevent the board from investigating and disciplining a licensee on the basis of medical malpractice claims that are pending; provided, however, that payments made as part of a disclosure, apology and early offer program, shall not be construed to be reportable to or by the board against the physician, absent a determination of substandard care rendered on the part of said physician; (g) names of medical schools and dates of graduation; (h) graduate medical education; (i) specialty board certification; (j) number of years in practice; (k) names of the hospitals where the licensee has privileges; (1) appointments to medical school faculties and indication as to whether a licensee has a responsibility for graduate medical education within the most recent ten years; (m) information regarding publications in peer-reviewed medical literature within the most recent ten years; (n) information regarding professional or community service activities and awards; (o) the location of the licensee's primary practice setting; (p) the identification of any translating services that may be available at the licensee's primary practice location; (q) an indication of whether the licensee participates in the Medicaid program.
The board shall provide individual licensees with a copy of their profiles prior to release to the public. A licensee shall be provided a reasonable time to correct factual inaccuracies that appear in such profile. A physician may elect to have his profile omit certain information provided under clauses (1) to (n), inclusive, of the preceding paragraph concerning academic appointments and teaching responsibilities, publication in peer-reviewed journals and professional and community service awards. In collecting information for such profiles and in disseminating the same, the board shall inform physicians that they may choose not to provide such information required pursuant to said clauses (1) to (n), inclusive. For physicians who are no longer licensed by the board, the board shall continue to make available the profiles of such physicians, except for those who are known by the board to be deceased. The board shall maintain the information contained in the profiles of physicians no longer licensed by the board as of the date the physician was last licensed, and include on the profile a notice that the information is current only to that date.
The board may, after a hearing pursuant to chapter thirty A, revoke, suspend, or cancel the certificate of registration, or reprimand, censure, impose a fine not to exceed ten thousand dollars for each classification of violation, require the performance of up to one hundred hours of public service, in a manner and at a time and place to be determined by the board, require a course of education or training or otherwise discipline a physician registered under said sections upon proof satisfactory to a majority of the board that said physician:?
(a) fraudulently procured said certificate of registration;
(b) is guilty of an offense against any provision of the laws of the commonwealth relating to the practice of medicine, or any rule or regulation adopted thereunder;
(c) is guilty of conduct which places into question the physician's competence to practice medicine, including but not limited to gross misconduct in the practice of medicine or of practicing medicine fraudulently, or beyond its authorized scope, or with gross incompetence, or with gross negligence on a particular occasion or negligence on repeated occasions;
(d) is guilty of practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability or mental instability;
(e) is guilty of being habitually drunk or being or having been addicted to, dependent on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects;
(f) is guilty of knowingly permitting, aiding or abetting an unlicensed person to perform activities requiring a license for purposes of fraud, deception or personal gain, excluding activities permissible under any provision of the laws of the commonwealth relative to the training of medical providers in authorized health care institutions and facilities;
(g) has been convicted of a criminal offense which reasonably calls into question his ability to practice medicine;
(h) is guilty of violating any rule or regulation of the board, governing the practice of medicine.
The board shall, after proper notice and hearing, adopt rules and regulations governing the practice of medicine in order to promote the public health, welfare, and safety and nothing in this section shall be construed to limit this general power of the board.
No person filing a complaint or reporting or providing information pursuant to this section or assisting the board at its request in any manner in discharging its duties and functions shall be liable in any cause of action arising out of the receiving of such information or assistance, provided the person making the complaint or reporting or providing such information or assistance does so in good faith and without malice. 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.
If a physician is found not guilty the board shall forthwith order a dismissal of the charges and the exoneration of the accused. If the board finds that there is reason to believe that a physician committed a criminal offense, the board shall notify the district attorney having jurisdiction over such individual or occurrence; provided, however, that the board need not notify the appropriate district attorney if the board has reason to believe that the criminal offense in question involves violation of chapter ninety-four C of the General Laws or other law concerning controlled substances as defined in said chapter ninety-four C and that said offense may be related to an addiction to, dependence on or habitual use of a controlled substance on the part of the physician. In such case the board shall notify the appropriate district attorney only when, after evaluation of the physician, the board has determined that the physician has not been rehabilitated and that it is unlikely that said physician can be rehabilitated without endangering the public health, safety or welfare, or the board has determined that the criminal offense in question was not related to an addiction to, dependence on or habitual use of a controlled substance on the part of the physician.
Upon request of the board's complaint counsel for the production of evidence at any stage of an investigation, pursuant to this chapter and regulations of the board promulgated thereunder, witnesses may be summoned and document production may be compelled by subpoenas or subpoenas duces tecum issued at the direction of the chairman of the board or his designee. Where appropriate, testimony may be taken within or without the commonwealth by deposition. So far as practicable, a stenographic record, electronic voice recording or videotape recording of all testimony shall be made and preserved for a reasonable time. Service of any subpoena may be made by (a) delivering a duly executed copy thereof to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service or process on behalf of such a person; (b) delivering a duly executed copy thereof to the principal place of business in the commonwealth of the person to be served; or (c) mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.
Notwithstanding section 11 of chapter 30A, the victim or his representative shall be entitled to attend all meetings of the board convened for the purpose of making a decision required in an adjudicatory proceeding, or for the purpose of reviewing a proposed consent order presented by the parties, concerning that victim's alleged injuries, at which the licensee or board complaint counsel are present. The victim or his representative shall be further entitled to have counsel of his own choosing present at the meeting for the purpose of advisement. The counsel shall not be permitted to participate actively in the proceeding. This paragraph shall not entitle an individual to the appointment of public or private counsel at the expense of the commonwealth.
Upon final consideration of a disciplinary matter before the board, and before the board's vote on final disposition, the board shall provide the victim or his representative an opportunity to be heard through an oral or written victim impact statement, at the victim's or his representative's option, about the impact of the injury on the victim and his family and on a recommended sanction. For purposes of this paragraph and the preceding paragraph, representatives of the victim shall include his family members and such other affected parties as might be so designated by the board's complaint counsel upon request.
If the respondent physician is present for any portion of the board's meeting upon the final consideration of a disciplinary matter, the victim or his representative shall have the opportunity to make an oral victim impact statement in the presence of the physician. If the respondent physician is absent from the board's meeting upon the final consideration of a disciplinary matter for a reason acknowledged by the board to be legitimate, the victim's or his representative's impact statement shall be communicated to the defendant physician in writing and the physician shall certify to the board that he has received and read it. The board shall make all reasonable efforts to ensure that the victim has the opportunity to make any oral impact statement in the presence of the physician.