Issue March/ April 2026 April 2026 By Joel Rosen
Health Law Section Review
In December, the Boston Globe Spotlight Team criticized the Board of Registration in Medicine (“the Board”) for failing to protect the public but protecting “neglectful doctors” instead.
The reporters were right when they said the Board often takes too long to resolve cases. And they cited examples where doctors seemed to merit more severe discipline than they received. But they were wrong when they assumed that: (a) the best board is one that punishes the most doctors severely; and (b) the public is best served when the board summarily suspends doctors accused of serious misconduct, rather than simply having the doctor agree not to practice.
1. The More Punitive The Better
The Globe published Public Citizen’s “national rankings” of boards based on how many doctors received serious discipline. (Public Citizen is a nonprofit consumer advocacy group.) Massachusetts, which aggressively disciplined only .64 doctors per thousand, ranked No. 38. Public Citizen had ranked our state No. 19 between 2019 and 2021.
The story used dire language, suggesting that this change meant the Board was not doing its job. “As Massachusetts continues to pride itself for top-notch healthcare, its ranking has plummeted,” the Spotlight Team wrote. “The average annual number of resignations, revocations, and summary suspensions have all declined – by nearly 40 percent altogether in the last four years compared to the previous four years …. ”
The story quoted a former Board chair, Candace Lapidus Sloane, who was appointed in 2011, when the Board ranked 48th in imposing serious discipline. Sloane said the Board’s reputation was “in tatters” at the time. She and another new member, Kathleen Sullivan Meyer, whose husband is a malpractice lawyer, brought the hammer down, imposing more serious discipline. But many lawyers in the defense bar agree with Scott Liebert, who told the Globe that Sloane ”was hard on physicians when the facts did not warrant it and the law did not warrant it.”
I have practiced before licensing boards in two states, and for what it’s worth, I found Sloane’s board to be the most punitive and unreasonable I have ever worked with. Lawyers were given only a few minutes to address the Board, and it rarely seemed to matter what we said. We defended our clients at a hearing, and based on the facts found, the Board sometimes imposed more severe discipline than an independent hearing officer recommended. (A doctor facing discipline is entitled to a hearing before a magistrate at the Division of Administrative Law Appeals.) The defense bar does not look back upon the Sloane days with the same fond nostalgia the Spotlight reporters seem to feel.
Relying on a chart as an objective measure of the Board’s performance has its flaws. First, what is “serious discipline” anyway? Public Citizen defines the term as having “a clear impact on a physician’s ability to practice,” whatever that means. The Board of Registration told the Globe it uses a different definition-which the article did not provide -and the Board’s own records show more instances of such discipline.
Secondly, and this is important, Public Citizen does not control for the many licensed doctors who do only research and do not treat patients at all. Massachusetts has the highest concentration of academic medical centers (10) in the country for a population of about 7 million. This means we have an outsized number of physician scientists who do not treat patients or whose clinical work is part-time. Massachusetts has the highest number of physicians per capita ( 466 per 100,000 residents, according to the Centers for Disease Control and Prevention). Many are physician scientists in our academic medical centers doing research full or part time, or they are working in biotech -where they are not seeing patients at all. The study should be looking at the number of discipline cases over the number of physicians who actually treat patients full time (or full-time equivalents).
Even if this glaring statistical flaw were addressed -and even if we could agree on what “serious discipline” is -a state’s rank is not necessarily correlated with patient safety.
As the article says, Massachusetts prides itself on top-notch health care. Doctors want to work here, and our teaching hospitals encourage best practices and good ethics. It may be that the doctors here just don’t screw up as badly or as often as those in “higher-ranking states.” Perhaps our hospitals have better oversight and quality control. Pennsylvania ranks near the bottom of the Public Citizen chart at No. 45. Alabama, at No. 7, ranks near the top. Does this mean that Alabama patients are better off than those in Pennsylvania? Or is it just as likely that Alabama sanctions good doctors more severely than they deserve? Or that doctors in Alabama just aren’t as good as those in Pennsylvania and deserve harsher punishments?
A licensing board’s job is to protect the public. It must do so in a way that is fair and proportionate to the doctor’s mistake or misconduct. The public is not served when a board heaps punishments on good doctors simply to appear tough or to improve its rankings on a chart.
Boards deal with cases on their merits. The state that disciplines the most doctors does not necessarily offer better health care than the state that disciplines the fewest.
2. Summary Suspension
When there is documentary evidence of serious malpractice, or of gross misconduct -like inappropriate contact with patients or showing up drunk -the board usually asks the doctor to sign a voluntary agreement not to practice (“VNP”), without any findings. The threat is that otherwise, it will impose a summary suspension, which would include written findings. With a summary suspension, the licensee is entitled to a hearing within seven days to contest the Board’s finding that they are “an immediate and serious threat to the public health, safety or welfare.” The Globe faulted the Board for using VNPs, rather than summary suspensions. This is because a VNP is “a nondisciplinary maneuver” that keeps the allegations confidential. “The board’s handling of complaints is a byzantine, secretive process.”
The board has the authority to issue an emergency suspension when it believes a doctor is an immediate or serious threat to the public …. But such an action, among the most serious disciplinary measures the board can impose, is rarely used anymore, data show. The board averaged five summary suspensions annually in the four-year period before 2021. Now, it does one or two annually.
[Executive Director George] Zachos said the board has made a strategic decision to seek voluntary agreements not to practice … before pursuing an emergency suspension. He noted about a third of such suspensions from 2016 to 2020 were overturned by the state’s administrative courts because the board did not prove its case. Voluntary agreements put a doctor’s practice on pause during an investigation, but the allegations remain secret.
Zachos is right. It is the Board’s burden to show by a preponderance of the evidence that the suspension meets the standards of the regulation. This means that a Board prosecutor needs to be ready, within seven days, to conduct an evidentiary hearing. This is early in the investigative process when meeting that burden is difficult, particularly in cases alleging that the doctor failed to meet the standard of care. These cases usually come down to questions of judgment. The Board can’t easily win a battle of experts and show that the doctor did not use the same degree of skill and judgment as the average competent practitioner in the same situation.
These hearings are expensive and stressful for a doctor, of course. But from the Board’s perspective, they are an unnecessary drain on resources where success is not guaranteed. Under Sloane’s leadership, as the Globe notes, the Board imposed far more summary suspensions than it does now, and a third of them were reversed after a hearing. One practitioner told me, “The Board was so trigger happy with summary suspensions under Sloane and Meyer that it has had cases where the doctor was summarily suspended, the independent magistrate ordered a reversal, and when the doctor was finally disciplined, the Board imposed a reprimand and a fine.”
Once a summary suspension is reversed, the Board has no further leverage to demand a voluntary agreement not to practice.
VNPs are neither “secretive” nor “byzantine.” The fact that these VNPs do not create a public record is a feature, not a bug. Remember, at this point, all you have are allegations. There is no proof that a doctor did anything wrong and no reason for public humiliation. The case is investigated and, if appropriate, prosecuted. If discipline follows, it will be public.
If the goal is to get bad doctors on the shelf, the VNP should always be the first option.
The Spotlight article may encourage the Board to inflict more severe punishments to improve its rankings on a chart, rather than adjudicate cases with compassion for the practitioner as well as the patient. That’s unfortunate. The Massachusetts board may be in the middle of the pack when it comes to serious discipline, but maybe that’s a good place to be.
Joel Rosen is the founding partner of Rosen & Goyal PC. He represents medical professionals in licensure, malpractice, insurance, employment and real estate disputes.