PATRICK J. HARAN vs. BOARD OF REGISTRATION IN MEDICINE.

LIACOS, J. The plaintiff, Patrick J. Haran, is a physician licensed to practice medicine in the Commonwealth and in the State of New York. In 1979, Haran was found by the disciplinary authority in New York to have been guilty of negligence and professional incompetence on at least twelve occasions. His license to practice in New York was revoked. Nearly one year later, the Massachusetts Board of Registration in Medicine (board) promulgated a regulation permitting it, in disciplinary hearings, to give collateral estoppel effect to a sister State's disciplinary actions "for reasons substantially the same" as those for which physicians may be disciplined in the Commonwealth. See 243 Code Mass. Regs. Section 1.03 (5) (a) (12) (1980) (hereafter, par. 12). [Note 1]

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In 1981, the board initiated action against Haran, relying on the New York suspension. In 1982, Haran was reinstated in New York on the sole ground that he had "demonstrated his rehabilitation." Hearings then proceeded in Massachusetts on the 1981 complaint. The hearing officer for the board, relying on par. 12, ruled that the New York finding of negligence

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precluded Haran from relitigating the question whether he had violated Massachusetts disciplinary standards; therefore, the hearings were limited to the issue of what sanctions to impose. In 1984, the board accepted the hearing officer's findings and recommendations and voted to suspend Haran's Massachusetts license for two years. The board, however, taking cognizance of the later New York finding that Haran had rehabilitated himself, stayed the suspension. Haran appealed to a single justice of this court pursuant to G. L. c. 112, Section 64 (1984 ed.). The single justice vacated the suspension, ruling that the board had applied par. 12 improperly because (1) it was applied retroactively, and (2) regulations promulgated pursuant to G. L. c. 30A (1984 ed.) cannot be given retroactive effect. The board appealed. We reverse and reinstate the decision of the board.

We need not reach the question whether regulations promulgated by the board pursuant to G. L. c. 30A can be given retroactive effect. Rather, we hold that the board did not apply par. 12 retroactively. As we have stated with respect to statutes, a regulation is not held to have been applied retroactively merely because "it draws on antecedent facts for its operation." McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 781 (1975). "It is only where vested substantive rights of the parties have been adversely affected that we can say a statute operates retroactively." Id.

Haran has not demonstrated that his vested substantive rights were affected by the board's reliance on par. 12. The regulation does not alter a physician's substantive rights by extending in any way the range of conduct for which a physician may be disciplined in Massachusetts. Rather, par. 12 permits discipline of a physician on the basis of foreign actions only where the foreign grounds of decision are "substantially the same" as the grounds for local discipline set out at 243 Code Mass. Regs. Section 1.03 (5) (a) (1)-(11) (1980).

Haran argues that the presence in par. 12 of the modifier "substantially" leaves the regulation so loosely drafted as to permit the board to discipline physicians for conduct proscribed elsewhere, but not in the Commonwealth. A contrary view of

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the word "substantially" seems more reasonably to be the intention of the board. The board's use of the principle of collateral estoppel in situations in which there is no significant difference between a sister State's "reasons" for discipline and the grounds that are cognizable in the Commonwealth is clearly proper, as even Haran concedes, to prevent physicians from relitigating questions decided against them in other States. This purpose would fail if the board's regulations had to be so drafted as to account for mere variations in verbal form and not in substantive content in the several States. The use of the adverb "substantially" limits, rather than enlarges, the disciplinary powers of the board to situations in which there is no substantive difference between foreign and local grounds for discipline.

The regulation, as applied to Haran, did not permit the board to use the New York findings to penalize him for conduct not otherwise actionable in Massachusetts. There is no meaningful difference between the "negligence . . . on more than one occasion" of which Haran was found guilty in New York and the requirement of a showing in Massachusetts of "negligence on repeated occasions." [Note 2]

Haran argues that the board's application of par. 12 deprived him of an alleged right to rely on a settled expectation that he would enjoy a "full opportunity" in Massachusetts "to disprove" what was proved in New York. In essence, he asserts a vested substantive right to a second bite at the adjudicative apple. No such right exists. This court has authorized an expanded use of the doctrine of collateral estoppel, in part because we recognize "the strong and oft-stated public policy of limiting each litigant to one opportunity to try his case on the merits." Home Owners Fed. Sav. & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). We also note

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that, when authorizing new usages of collateral estoppel, we have not hesitated in our decisions to apply newly minted rules to the litigants then at bar. See Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 753 (1985); Aetna Casualty & Sur. Co. v. Niziolek, 395 Mass. 737, 745-747 (1985); Home Owners Fed. Sav. & Loan Ass'n, supra. We have long been mindful that "[i]t is only statutes . . . relating to remedies and not affecting substantive rights, that commonly are treated as . . . applying to pending actions or causes of action," Smith v. Freedman, 268 Mass. 38, 40 (1929), quoting Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). Cf. Hein-Werner Corp. v. Jackson Indus., 364 Mass. 523, 525 (1974). It is implicit in the rulings cited that, when collateral estoppel is applied, we have always understood the rights affected to be procedural ones and not vested substantive rights. Haran's vested substantive rights were not adversely affected by the board's application of par. 12. [Note 3]

Apart from the issue of retroactivity, Haran maintains that the board violated his right to due process by giving overbroad collateral estoppel effect to the findings of the New York authorities. We disagree. The board's authority to discipline physicians derives from the principle, long recognized in this Commonwealth, that "[t]he right of a physician to toil in his profession . . . with all its sanctity and safeguards is not absolute. It must yield to the paramount right of government to protect the public health by any rational means." Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 428 (1921). Nonetheless, that right "is both liberty and property, partaking of the nature of each, and is guaranteed by constitutional mandate from unwarrantable interference" in violation of the due process requirements of the Fourteenth Amendment to the United States Constitution. Id.

The due process arguments raised by Haran stem from rulings made by the board's hearing officer. Early in the Massachusetts

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hearings, the hearing officer denied Haran's motion for a "directed verdict" of dismissal. The board's complaint counsel had introduced only the following evidence: Haran's Massachusetts registration; the Massachusetts disciplinary regulations, 243 Code Mass. Regs. Section 1.03 (5) (a) (1)-(12) (1980); and records relevant to the New York proceedings against Haran. These last included findings of that State's hearing committee, which in turn included a conclusion that Haran was guilty of "negligence and incompetence on more than one occasion" and separate factual findings of negligence and incompetence on twelve separate occasions. Implicit in the hearing officer's denial of Haran's motion for a "directed verdict" was a ruling that this evidence was sufficient to support a decision by the board to discipline Haran on the basis that New York's revocation of Haran's license established his liability in Massachusetts for discipline.

Haran maintains first that the hearing officer's rulings resulted in a purely mechanical application of the New York findings, which effectively denied him a hearing because he was not allowed to confront "the sole `witness' against him (the New York revocation order)" (emphasis in original). Apparently, Haran argues that the board's use of collateral estoppel offensively pursuant to par. 12 denied him a hearing on the issue of his liability to discipline, which was otherwise guaranteed him by G. L. c. 112, Sections 5 and 61, and G. L. c. 30A, Section 10. "In appropriate circumstances, however, the offensive use of collateral estoppel is a generally accepted practice in American courts." Aetna Casualty & Sur. Co. v. Niziolek, supra at 744. When determining whether the offensive use of collateral estoppel has afforded a defendant due process, "[f]airness is the decisive consideration." Id. at 745. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979) (except where its use would be unfair to a defendant, Federal courts may apply collateral estoppel offensively). To determine the fairness of particular applications of offensive collateral estoppel, courts generally ask whether (1) the party in whose favor the estoppel would operate could have joined the original action, (2) the party against whom it would operate had an adequate incentive

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to defend the original action vigorously, (3) "the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant," and (4) "the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result." Id. at 329-331. Clearly, the board had no opportunity to join the original New York proceeding; just as clearly, because his license to practice medicine was at stake, Haran had every incentive to litigate the New York action vigorously, and he was in fact represented by counsel at a four-day hearing in New York. [Note 4] It has not been argued that a different result could have been forthcoming in Massachusetts due to differences between the administrative procedures of Massachusetts and New York. [Note 5]

Still, the touchstone of our analysis is fairness in all the circumstances. Haran maintains that it is fundamentally unfair to permit the board to treat New York's revocation of his license as preclusive of litigation without also giving collateral estoppel effect to that State's subsequent determination of what he terms his "present qualification for licensure." The supposed asymmetry is only superficial. Findings of negligence and findings of rehabilitation are both, in a technical sense, "findings

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of fact," but there the similarity ends. A finding of negligence provides an answer to a narrow factual question -- whether, in a particular instance or set of instances, a physician's performance fell below the standard required by law. In contrast, reinstatement of a physician's registration in this Commonwealth, by proof of rehabilitation or otherwise, "will be granted only if the Board determines that doing so would advance the public interest." 243 Code Mass. Regs. Section 1.05 (6) (c) (1979). Thus, a finding of rehabilitation and reinstatement requires weighing and balancing a wide range of considerations peculiar to the petitioner in light of the public interest. The former kind of question -- whether negligence occurred -- is well suited to resolution by collateral estoppel; the latter kind of question is not. By the promulgation of par. 12 in 1980, the board's regulations have treated these two kinds of questions differently, authorizing the use of issue preclusion as to one and not the other.

We cannot say that this regulatory design is unreasonable or unfair. "One of the purposes which lead to the creation of such boards is to have decisions based on evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration." Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 311 (1981), quoting American Broadcasting Cos. v. Writers Guild of Am., West, Inc., 437 U.S. 411, 433 (1978), and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800 (1945). Absent any violation of due process, the board should enjoy wide latitude, not only to decide factual questions on the basis of its members' expertise, but also to decide on that same basis whether the issue of rehabilitation is or is not a question well answered by collateral estoppel. We see no unfairness to Haran in permitting the two questions to be treated differently by the board, and therefore we discern no violation of due process.

Haran also maintains that the board, by the hearing officer's rulings, prevented him from presenting evidence on alleged dissimilarities between the New York and Massachusetts disciplinary standards; he insists that the board should have required

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its complaint counsel to demonstrate, by reference to the comparative case law of New York and Massachusetts, that the "negligence" for which he lost his license in New York is legally indistinguishable from the "negligence" that is proscribed in Massachusetts by G. L. c. 112, Section 5 (c). The argument is somewhat disingenuous. The question of the similarity of legal standards is not one of evidence and fact, but one of law. The hearing officer could take administrative notice of the pertinent New York law. See G. L. c. 30A, Section 11 (5); G. L. c. 233, Section 70 (1984 ed.). We need not be detained longer by this argument, as we have answered it in the earlier portion of this opinion. [Note 6]

The board, in accepting the recommendations of the hearing officer on the substantial similarity of the New York and Massachusetts standards, properly fulfilled, under G. L. c. 112, Section 5, its "role . . . in the over-all statutory scheme [which] is to take primary responsibility in the regulation of the practice of medicine in the Commonwealth `in order to promote the public health, welfare, and safety.'" Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 524 (1979), quoting St. 1975, c. 362, Section 3, amending G. L. c. 112, Section 5.

Finally, Haran maintains that the board violated his right to due process when it gave collateral estoppel effect to the findings of negligence by the New York authorities without considering whether he had had a full and fair opportunity to litigate that question in the New York proceedings. Admittedly, "[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in the prior litigation." Montana v. United States, 440 U.S. 147, 164 n.11 (1979). See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-481 (1982); Allen v. McCurry, 449 U.S. 90,

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95 (1980); Blonder-Tongue Laboratories, Inc. v. University of Ill. Found., 402 U.S. 313, 328-329 (1971). We note that the transcript of the initial hearing in New York was available to the board's hearing officer. Haran points to nothing in that record which reveals any procedural impropriety. [Note 7]

The order of the single justice is vacated. The case is remanded to the county court for entry of judgment reinstating and affirming the decision of the board.

So ordered.