387 Mass. 339

May 5, 1982 - August 31, 1982

Middlesex County


The Board of Registration in Medicine acted within its discretion under G. L. c. 112, Section 5 (g), in revoking the medical license of a physician who had pleaded guilty to charges of making false representations to the Department of Public Welfare in order to procedure payments under the Medicaid program, and the board was not bound by the recommendation of its hearing officer that no administrative sanctions be imposed. [340-341]

CIVIL ACTION commenced in the Superior Court Department on December 2, 1981.

After transfer to the Supreme Judicial Court for the county of Suffolk, the case was reported by Lynch, J.

Joel Z. Eigerman for the plaintiff.

Leah S. Crothers, Assistant Attorney General (Ellen L. Janos, Assistant Attorney General, with her) for the defendant.

NOLAN, J. The narrow issue posed in this case is whether the defendant Board of Registration in Medicine (Board) abused its discretion in revoking Robert W. Feldstein's license to practice medicine, after Feldstein pleaded guilty to ten counts of making false representations to the Department of Public Welfare for the purpose of extracting payments under the Medicaid program. There was no error.

From findings of fact made by the Board, we learn that Feldstein was born in Cairo, Egypt, and attended medical school in Lyons, France. He came to the United States in 1958 and passed his board examinations in general medicine in 1961. He was employed as a physician at Metropolitan

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State Hospital between 1961 and 1979. He started developing a private practice about 1966, and it consisted almost entirely of treatment of nursing home patients. On November 14, 1979, he was indicted in ten counts under G. L. c. 18, Section 5B, for making false representations to the Department of Public Welfare, on order to procure payments under the Medicaid program. These violations are sometimes characterized as "double billing." He was also indicted for larceny under G. L. c. 266, Section 30. To the indictment charging violations of G. L. c. 18, Section 5B, which are misdemeanors, he pleaded guilty. He was given a one-year suspended sentence to a house of correction, fined $5,000, and placed on probation for two years. The case involving the indictment for larceny, to which he entered a plea of not guilty, was continued without a finding for eighteen months on oral motion of the Commonwealth, and he was ordered to make restitution in the amount of $2,200 to the Department of Public Welfare.

As a result of his criminal conviction the Board, on February 5, 1981, served on Feldstein a notice to show cause why his license should not be revoked. The matter was referred to a hearing officer who filed a decision in which she recommended no further sanctions. The Board did not accept such recommendation and on November 18, 1981, issued an order revoking Feldstein's license to practice medicine in Massachusetts. Feldstein then filed a complaint in the Superior Court for judicial review of the Board's action under G. L. c. 30A, Section 14. [Note 1] A petition under G. L. c. 211, Section 4A, to transfer the case to the county court was allowed, and on a joint motion a single justice of this court reserved and reported to the full court Feldstein's petition for judicial review and the issues raised therein.

Feldstein's arguments can be fairly summarized in the proposition that the Board abused its discretion in revoking his license because the hearing officer recommended no further sanctions, and because his convictions did not show

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him to be a danger to the public health, safety, and welfare in his practice of medicine.

The Board has the authority to revoke, suspend, or cancel the certificate of registration of a physician who "has been convicted of a criminal offense which reasonably calls into question his ability to practice medicine." G. L. c. 112, Section 5 (g), as appearing in St. 1977, c. 165. In Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519 (1979), the court held that the Board had authority to revoke the license, following pleas of guilty, of a physician who had been convicted of grand larceny from the Department of Public Welfare and of submitting false data to the Rate Setting Commission. Levy argued, as does Feldstein, that his convictions were not directly related to the practice of medicine but we rejected this argument. Feldstein asks us to recognize a dichotomy between his practice of medicine and his financial manipulations. We are not so inclined because Feldstein's criminal acts of "double billing" arose out of the practice of medicine. See G. L. c. 112, Section 5(b), as amended. In Levy, we recognized the financial implications in the practice of medicine: "The practice of modern medicine involves financial management, as well as the care and treatment of patients." Id. at 526.

A subsidiary argument advanced by Feldstein stresses the findings and recommendation of the hearing officer. However, Feldstein ignores the inescapable findings of the hearing officer regarding his convictions. The Board is not bound by the recommendation. The substantial evidence test of G. L. c. 30A, Section 14(7) (e), is clearly met with respect to the findings. It belongs to the Board to impose the sanction within its discretion. We shall not interfere with its reasonable exercise of discretion except in the most extraordinary case, and this is not such a case. Levy, id. at 528-529.

There is no more merit to Feldstein's argument that that Board's action is penal than there is to his other arguments. The purpose of a disciplinary proceeding is protection of the public, not retribution, and the shame and the disgrace suffered by the professional person who is disciplined do not

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render the proceedings and the sanctions penal. Arthurs v. Board of Registration in Medicine, 383 Mass. 299 , 317 (1981).

In all, the rights of Feldstein were fully protected and he has failed to demonstrate any error. Judgment shall be entered affirming the decision of the Board revoking Robert W. Feldstein's license to practice medicine.

So ordered.


[Note 1] The complaint should have been entered in this court. G. L. c. 112, Section 64.