424 Mass. 201 | Mass. | 1997
In Herridge v. Board of Registration in Medicine, 420 Mass. 154 (1995) (Herridge 7), we considered Dr. Herridge’s appeal from a decision of the defendant Board of Registration in Medicine (board) to suspend for three years the doctor’s right to renew his license to practice medicine in the Commonwealth. The board had ruled professional discipline should be imposed because in 1985 the doctor, a psychiatrist, initiated “inappropriate conversation of a sexual nature . . . with a patient during treatment, and a brief sexual relationship with this patient which occurred shortly after the physician-patient relationship terminated.” Id. at 155.
Discipline was imposed based on the board’s conclusion that the doctor had “sexualized” the doctor-patient relationship, and, therefore, it was unethical for him to engage in a sexual relationship with the patient after the professional relationship had terminated. Id. at 165. The doctor did not deny
The case against the doctor depended substantially on the patient’s testimony. In our earlier opinion, we noted that the hearing officer who submitted a recommended decision to the board, which it accepted, had rejected significant portions of the patient’s testimony but accepted others. The rejected testimony, if believed, would have warranted a finding that the doctor-patient relationship existed when the doctor and the patient had sexual relations at the patient’s apartment in October and November, 1985. In our first opinion, we stated that, “[i]n passing on the credibility issue, the board could not properly ignore the fact that it was declining to credit significant portions of the patient’s testimony, some of which, as has been noted, was susceptible of an inference of fabrication aimed at establishing that sexual relations occurred during the physician-patient relationship.” Herridge I, supra at 163-164.
1. We have reviewed the board’s amended decision and have considered the various grounds on which the doctor now challenges the board’s credibility determinations.
Any suggestion that the patient’s testimony was consistent and generally trustworthy is belied by the fact the board disbelieved parts of her testimony that, if believed, would have been very damaging to the doctor’s position. The amended decision presents no sufficient explanation as to why the board accepted some of the patient’s damaging testimony as credible, while rejecting other significant portions of it. The amended decision is unpersuasive on the issues remanded to it for consideration. We set forth examples of why the amended decision fails to convince us that there was substantial evidence justifying the imposition of professional discipline.
a. In its original decision the board rejected the patient’s testimony that she had had a final office appointment with the doctor in February, 1986. The existence of such an appointment would have been significant because the admitted sexual relations between the doctor and the witness had occurred prior to that date, and thus there would have been improper professional conduct during the doctor-patient relationship. In our first opinion, we said that the board’s finding that the doctor-patient relationship had ended on October 8, 1985, required the board “to reject a considerable portion of the patient’s testimony bearing on the duration of the physician-patient relationship.” Herridge I, supra at 161.
In its amended opinion, the board treated the matter of the alleged February, 1986, appointment more fully, suggesting that the patient may have recalled an appointment in some
If the board believed the doctor that there had been no February, 1986, appointment, thereby finding the patient’s testimony not credible, it was incumbent on the board to explain why it believed the patient, and not the doctor, in other circumstances.
b. The credibility issue is compounded by the fact that the board in its original decision rejected the patient’s testimony that a social dinner engagement occurred before her final office visit, and stated that her recollection was “somewhat confused.” The board had credited the doctor’s testimony that the dinner occurred after the patient’s last (October 8, 1985) appointment. In its amended decision, however, the board eliminates the reference to the patient’s “confusion” and provides no explanation as to why it concluded that the patient’s testimony was not credible on this point but acceptable elsewhere.
c. The patient testified that the doctor continued to consult with her by telephone about her use of medication through February, 1986. In its original decision, the board made no findings on this point. On remand, the board made new findings. It found that there had been telephone conversations after the last (October 8, 1985) appointment. The doctor testified that he typically made a record of patient telephone calls,
d. The hearing officer’s task on remand from the board was to explain the credibility determinations in her original recommended decision. It is not clear that her task included the making of new findings. In her original decision, the hearing officer declined to decide whether a kissing incident occurred during one of the patient’s appointments, as testified to by the patient. In our first opinion, we noted that the board could not ignore the fact that it had declined to credit testimony of the patient that “was susceptible of an inference of fabrication aimed at establishing that sexual relations occurred during the physician-patient relationship.” Herridge I, supra at 163-164. On remand, the board, for the first time, made a finding that some physical contact occurred during the October 8, 1985, appointment. The patient’s original complaint did not allege any physical intimacy occurred in the doctor’s office. In her testimony, the patient gave arguably inconsistent statements about the circumstances in which the kissing incident assertedly occurred. In its amended decision, however, the board states that the patient never said where the doctor was sitting when the alleged kissing occurred and that she was not asked about it. That statement is patently incorrect. See Administrative Record, vol. II, at 193, 258. Moreover, the board has mischaracterized the doctor’s testimony about the physical characteristics of his office.
2. Our review of the board’s attempted resolution of the conflicting testimony on the issues that we have discussed, and on others the discussion of which would unnecessarily prolong this opinion, leads us to the firm conclusion that the board failed “to confront the problems in the patient’s testimony and to provide ‘an explicit analysis of credibility and the evidence bearing on it.’ ” Herridge I, supra at 165, quoting Morris v. Board of Registration in Medicine, 405 Mass. 103, 107 (1989). The patient’s testimony was essential to the proof of facts justifying suspension of the doctor’s right to renew his license to practice medicine in the Commonwealth. Herridge I, supra at 166. The board has failed to provide an adequate explanation as to why it has treated parts of the patient’s testimony as credible when it has rejected as untrue so much of that testimony. The amended decision does not adequately follow the instructions we gave in our review of the board’s original decision.
We do not offer the board another chance to explain its credibility determinations. If the task was ever capable of performance, it is not now. The amended final decision of the Board of Registration in Medicine is vacated. The board should enter an order dismissing the proceeding that is the subject of this appeal.
So ordered.
Our opinion contained an explanation as follows: “Not only did the board fail adequately to explain its reasons for crediting the patient, but its stated reasons for disbelieving the [doctor] also lack support in the record. The board declined to credit his testimony because of ‘his denial that he ever found [the patient] attractive, [yet] he engaged in sexual relations with her on more than one occasion.’ In fact, the petitioner testified that he did not think of the patient as attractive until they had dinner together in October, 1985, when their discussion moved from the professional to the personal.” (Footnote omitted.) Herridge I, supra at 164.
Although three years have passed since the board’s order imposing discipline was entered, the doctor, who is practicing in another State, asserts that any decision in this proceeding will affect his right to practice in that State. The matter is not moot, and the board does not argue otherwise.