An attorney’s comment on professional conduct - by Douglas Galloway

Douglas Galloway, Durkin Law P.C.

Any licensed professional in Massachusetts, whether a medical doctor, real estate appraiser, cosmetologist, or otherwise, who has ever been issued an Order to Show Cause should recognize two names, Raymond and Kvitka. These names reference two cases that provide the basis for the Massachusetts Division of Professional Licensure, through their individual boards, to charge a licensee with “unprofessional conduct which undermines public confidence in the integrity of the profession.” No matter how small the alleged infraction in the Order to Show Cause is, this charge, supported by Raymond and Kvitka, is added as an additional and separate legal claim against the licensee.

The rest of the charges will likely come from alleged violations of the statutes or regulations that govern the profession. Those statutes and regulations are written with broad application to the profession in mind and generally, reference specific behaviors that are forbidden or standards of practice that must be met. Conversely, the charge of “unprofessional conduct which undermines public confidence in the integrity of the profession” is not based on statute or regulation, but rather on two cases, both of which originate under the Board of Registration in Medicine. To understand and defend against this accusation, a licensee must look to the language and facts of Raymond and Kvitka. For all those professionals outside of the Board of Medicine, it will be uninformative as the standards of professional conduct, what affects public confidence, and the level of integrity required by each profession are very different. However, the inappropriate application of medical standards to other Massachusetts professionals is not the intended subject of this article. For further reading, the standards of practice specific to each profession can be found in the Code of Massachusetts Regulations.

The widespread use of these two cases to support a claim of unprofessional conduct is especially concerning though, because the conduct underlying Raymond and Kvitka is immensely more egregious than practically all of the conduct it is being used against. Raymond v. Board of Registration in Medicine [387 Mass. 708 (1982)] was decided more than 30 years ago. The conduct supporting unprofessional conduct in that case was the illegal sale of two automatic submachine guns, nine pistols, and the possession of two automatic submachine guns, each equipped with silencers. The court in Raymond gave much attention to what the illegal possession of such lethal weapons revealed about a doctor ’s commitment to preserving life, alleviating suffering, and restoring health. This, in addition to the fact that he was criminally convicted for his conduct.

Kvitka v. Board of Registration in Medicine [407 Mass. 140 (1990)] was decided more than 25 years ago. The conduct supporting unprofessional conduct in that case was the illegal sale of controlled substances, Percocet. The licensee, a doctor, was writing fake subscriptions and selling them to drug dealers. In total, the doctor sold at least 245 prescriptions in this manner and pled guilty to ten counts of violating the Controlled Substances Act. He received a three year suspended sentence and a $60,000 fine. The court in Kvitka found the doctor’s conduct to be a flagrant abuse of the power entrusted to him by the public.

The conduct of the licensees in both Raymond and Kvitka received criminal convictions. Their conduct showed a lack of commitment to a doctor’s foundational duty to preserve life and, in both cases, is easily identifiable to a reasonable person as “unprofessional conduct which undermines public confidence in the integrity of the profession.” However, this conduct represents the upper extreme of bad behavior, and it bears no relation to the allegations found in most Orders to Show Cause being issued by the Massachusetts boards. Yet this charge of unprofessional conduct supported by Raymond and Kvitka is being automatically attached to complaints that allege the most minor of mistakes or omissions. This is not right, and it demonstrates the need for administrative reform in how these charges are being brought.

Douglas Galloway is an associate at Durkin Law P.C., Boston