388 Mass. 1013

March 18, 1983

This court has previously considered the operation of the business of Cape Resort Hotels, Inc., as a nonconforming use under the zoning by-law of the town of Falmouth. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 (1982). There we reversed the prior judgments of the Superior Court and remanded the case for the entry of new judgments. We said that "[i]n fashioning a revised injunction, the judge should seek to ensure that Cape Resort operates its facility as a hotel, with primary focus on lodging, meals, and entertainment for overnight guests. Any upgrading of the hotel which is reasonably adapted to these functions would be permissible. Thus, dining facilities may be open to the public and in conjunction with these facilities music and alcoholic beverages may be provided." Id. at 226. The case is now before us on appeal from the judgment after remand. The revised injunction goes slightly beyond the scope of our prior decision. We therefore order that the judgments after remand be modified by striking paragraphs 9, 10, 18 and 19 in their entirety and by striking the phrase "from a service bar only," from the end of paragraph 12.

Except as modified herein the judgments are affirmed.

So ordered.


388 Mass. 1013

April 6, 1983

The plaintiff physician appeals from a judgment entered by a single justice of this court affirming the decision and final order of the Board of Registration in Medicine (Board) censuring the physician. G. L. c. 112, Section 5. The Board adopted the decision of a hearings officer that the physician violated good and acceptable medical practice when he released to the press information concerning a patient's medical condition.

The physician argues that, in circumstances we need not detail, the patient's conduct warranted the release of the information. He asserts that the patient impliedly or apparently authorized others to publicize complaints against the physician and that the release of the information about the patient was justified to counteract an attack on his professional conduct. The physician also asserts that by his conduct the patient waived his right to confidentiality and is estopped to deny waiver.

There was substantial evidence in support of the Board's decision against the physician on these points. G. L. c. 30A, Section 14 (7). See Arthurs v. Board of Registration in Medicine, 383 Mass. 299 , 304-305 (1981). The Board committed no error of law. A fundamental problem with each of the physician's arguments is that no medical information about the patient was shown to have been disclosed publicly before the physician

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made it public himself. Thus, there was no possibility on the evidence of demonstrating that the patient waived his right of confidentiality, that the patient was estopped to deny that he waived his right, or that the patient in any way authorized others to disclose his medical records.

The physician does not argue that his disclosure of medical information concerning the patient did not warrant the discipline imposed, if his arguments concerning authorization, waiver, and estoppel are rejected.

We agree with the conclusions of the single justice on the issues considered by him.

Judgment affirmed.