Anusavice v. Board of Registration in Dentistry

889 N.E.2d 953, 451 Mass. 786, 2008 Mass. LEXIS 495
CourtMassachusetts Supreme Judicial Court
DecidedJuly 11, 2008
StatusPublished
Cited by10 cases

This text of 889 N.E.2d 953 (Anusavice v. Board of Registration in Dentistry) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anusavice v. Board of Registration in Dentistry, 889 N.E.2d 953, 451 Mass. 786, 2008 Mass. LEXIS 495 (Mass. 2008).

Opinion

Cordy, J.

This is an action for judicial review of a final decision and order of the Board of Registration in Dentistry (board) revoking Gary Anusavice’s license to practice dentistry in Massachusetts. It is brought pursuant to G. L. c. 112, § 64, and G. L. c. 30A, § 14 (7), and was filed in the Supreme Judicial Court for Suffolk County. The single justice reserved and reported three questions:

[787]*787“1. Does the Board of Registration in Dentistry have authority to impose (reciprocal) discipline on a dentist licensed to practice dentistry in the Commonwealth based on discipline imposed on him in a foreign jurisdiction?
“2. Does the consent order between the petitioner and the Rhode Island Board of Examiners in Dentistry, dated November 9, 2005, constitute discipline for purposes of reciprocal discipline in the Commonwealth?
“3. Does the aforesaid consent order have preclusive effect as to the misconduct described therein for purposes of reciprocal discipline in the Commonwealth?”

As explained below, we answer the first two questions in the affirmative. We decline to answer the third question as posed by the single justice, where Anusavice has not been charged in Massachusetts with the misconduct that was alleged in Rhode Island and resolved by the consent order. In the circumstances of this case, proof of that misconduct is not relevant to the imposition of reciprocal discipline in Massachusetts. We also proceed to affirm the sanction imposed by the board.

1. Background. On June 23, 1980, the board issued Anusav-ice a license to practice dentistry. In July, 1997, Anusavice entered a consent agreement with the board, resolving twenty-four complaints that had been filed against him.1 Under the terms of that agreement, Anusavice voluntarily surrendered his license for five years; he also agreed to a five-year period of probation on the reinstatement of his license. The agreement required Anusav-ice to “comply with all federal and state laws” and to “observe currently accepted standards of practice” in dentistry. His Massachusetts license was reinstated in 2002, and he began practicing under the terms of his probation.2

a. The Rhode Island consent order. At all relevant times, [788]*788Anusavice was also licensed to practice dentistry in Rhode Island. On November 9, 2005, Anusavice entered into a consent order with the Rhode Island Department of Health Board of Examiners in Dentistry (Rhode Island department), resolving complaints that had been made against him in that State. This is the consent order at issue in the present case. Among its findings of fact, the consent order included the following description of the allegations of misconduct it was resolving:

“The Department has alleged that the Respondent . . . has engaged in activities amounting to fraud, including but not limited to providing unwanted dental services to patients, credit card fraud, a bait and switch scheme with regard to dental services, billing patients for services not delivered, deceiving patients with respect to credit that respondent arranged for them, refusing to respond to patients’ repeated requests for care, refusing to provide patients with copies of their medical records, and other activities prohibited by statute.”

The order further provided that Anusavice “neither admits nor denies the . . . allegations,” but “acknowledges and waives” his right to contest them at a hearing before the Rhode Island department.3 In exchange for the Rhode Island department terminating its disciplinary proceeding against him, Anusavice agreed to refrain from practicing dentistry in Rhode Island for eighteen months, and, on resuming his practice, to be subject to an additional eighteen-month period of probation. During this period of probation, Anusavice would be required to, among other things, submit “quarterly reports detailing the conduct of his practice, number of patients and the names of other licensed professionals employed there.” The order further provided that Anusavice would be eligible for “an unrestricted license to practice as a dentist” only if he successfully completed the probationary period.

[789]*789The Rhode Island department reported the consent order to the National Practitioner’s Data Bank and the Healthcare Integrity Data Base (data banks). These data banks exist to “restrict the ability of incompetent [health care professionals] to move from State to State without disclosure or discovery of the [professional’s] previous damaging or incompetent performance.” 42 U.S.C. § 11101(2) (2000). The Rhode Island department also listed Anusavice’s “[Eighteen] Months Voluntary Surrender [of his license] with [Eighteen] Months Probation upon reinstatement” as a “disciplinary action” on its official Internet Web site.

b. Massachusetts proceedings. Following the entry of the consent order in Rhode Island, the board issued an order requiring Anusavice to show cause why it should not take action against his license in Massachusetts. The order to show cause recited the history of the Rhode Island disciplinary proceeding and contended that Anusavice was subject to reciprocal discipline because the “voluntary surrender of [his] license is a disciplinary action . . . and it has been reported to the [data banks] as such.”4 It further alleged that Anusavice had (in Massachusetts) advertised dental services in the Verizon Yellow Pages in 2003 and 2004 without naming the dentist who owned the practice, in violation of 234 Code Mass. Regs. § 2.05(3)(a) (1995).5

The parties filed cross motions for summary decision as permitted by 801 Code Mass. Regs. § 1.01(7)(h) (1998). Prosecuting counsel for the board argued that there was no genuine issue of [790]*790material fact in dispute that Anusavice had improperly advertised dental services in Massachusetts, and had been disciplined in Rhode Island based on complaints that he engaged in fraud. The prosecuting counsel further argued that because fraud in the practice of dentistry is a basis on which discipline could be imposed in Massachusetts, Anusavice was subject to reciprocal discipline in Massachusetts. In support of the motion for summary judgment, prosecuting counsel submitted a copy of the Rhode Island consent order, as well as an affidavit from Gail Giuliano, the administrator of the Rhode Island department.6

Anusavice opposed the motion for summary decision, contending first that “there is no statute or regulation giving the Board authority to automatically impose discipline based on the Rhode Island Consent Order”; and second that “the imposition of discipline by the Board requires either an admission of wrongdoing ... or a finding by a board — whether in Massachusetts or Rhode Island — that he has engaged in some wrongdoing. Neither is present here.”

Anusavice also submitted affidavits explaining the circumstances leading to his signing of the consent order. Relying on these affidavits, he argued that the allegations of fraudulent conduct were untrue, and that he agreed to the consent order because false charges were being disseminated in the media, causing anxiety to his wife and sons, and harming his reputation.

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Bluebook (online)
889 N.E.2d 953, 451 Mass. 786, 2008 Mass. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anusavice-v-board-of-registration-in-dentistry-mass-2008.