Petition for Writ of Certiorari — Massachusetts Board of Registration in Medicine v. Kvitka

Ng? 2y Ve 1) JUN 22 1590

-_ ‘ jose!

———

No. 89-

In the

Supreme Court of the United States.

October Term, 1989

MASSACHUSETTS BOARD OF REGISTRATION

IN MEDICINE,

PETITIONER,

Vv.

LAWRENCE KVITKA,

RESPONDENT.

Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court.

James M. Shannon,

Attorney General

Commonwealth of Massachusetts,

Judith Fabricant*

Assistant Attorney General,

One Ashburton Place,

Boston, Massachusetts

(617) 727-2200, ext.

Counsel for Petitioner

02108

2076

*Counsel of Record

Question Presented

Does the double jeopardy clause of

the United States Constitution prevent a

state medical licensing board from

fining a physician for misconduct for

which he has been punished criminally,

where the effect of the fine is to

require the physician to disgorge

profits obtained through his misconduct?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

1. Facts

2. Prior Proceedings

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE

GRANTED TO CLARIFY THE

LIMITS OF UNITED STATES

v. HALPER AND TO PROTECT

EFFECTIVE LAW ENFORCEMENT.

‘A. The Supreme Judicial

Court has Applied

Halper too Broadly.

1. The Court Below

Erroneously Applied

Subjective Analysis.

Page

10

10

14

15

2. The Court Below

Misinterpreted Halper

as Holding That a Fine

Compelling the

Disgorgement of Illicit

Profits Could not be

Considered Remedial.

B. The Decision Below Poses a

Substantial Threat to

Effective Law Enforcement.

1. The Decision Would

Hamper Civil Law

Enforcement Proceedings.

2. The Decision Would

Hamper Criminal

Prosecutions.

CONCLUSION

APPENDIX A

APPENDIX B

- iii -

Page

21

23

24

TABLE OF AUTHORITIES

Cases

Helvering v. Mitchell,

303 U.S. 391 (1938)

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963)

One Lot Emerald Cut

Stones v. United States,

409 U.S. 232 (1972)

S.E.C. v. MacDonald,

699 F.2d 47

(lst Cir. 1983)

SFC. v¥. Tome,

833 F.2d 1086 (2d Cir. 1987)

Tull v. United States,

481 U.S. 412 (1986)

United States v. Halper,

409 U.S. .

109 S. Ct. 1892 (1989)

United States v.

Marcus Schloss & Co., Inc.,

724 F. Supp. 1123

(S.D.N.Y. 1989)

United States v. Mayers,

897 F.2d 1126

(llth Cir. 1990)

United States v. Pani,

717 F. Supp. 1013

(S.D. N.Y. 1989)

o iy «

Page

18

22

23

23

passim

27

27

13

Cases Page

United States v. A Parcel

of Land, 884 F.2d 41

(lst Cir. 1989) 13, 26, 25

United States v. Sanchez,

47 Crim. L.R. 1026

(S.D. Tex., 3414/90) 27

United States v. United

States Fishing Vessel Maylin,

725 F. Supp. 1222

(S.D. Fla. 1989) 13

United States v.

WRW Corporation, et al.,

731 F. Supp. 237

(E.D. Ky. 1989) > ae

Statutes

Mass. G.L. Cc. 21, §§ 26-53

(1988 ed.) 24

Mass. G.L. c. 21C, § 1 et Seg.

(1988 ed.) 24

Mass. G.L. c. 94C, § 19(a)

(1988 ed.) 6, 7

Mass. G.L. c. 94C, § 31B(qd) (1)

(1988 ed.)

Mass. G.L. Cc. 111, § 142A-J 25

Statutes Page

Mass. G.L. c. 112, § 5

(1988 ed.)

W

Mass. G.L. c. 112, § 64

(1988 ed.) 4, 9

o Oi «os

No. 89-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MASSACHUSETTS BOARD OF REGISTRATION

IN MEDICINE,

Petitioner,

Ws

LAWRENCE KVITKA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS SUPREME

JUDICIAL COURT

The Massachusetts Board of

Registration in Medicine respectfully

petitions for a writ of certiorari to

review the judgment of the Massachusetts

Supreme Judicial Court in this case.

OPINION BELOW

The opinion of the Massachusetts

Supreme Judicial Court is reported at

407 Mass. 140, 551 N.E. 2d 915 (Mass.

1990), and is reproduced as Appendix A

hereto. The decision of the

Massachusetts Board of Registration in

Medicine, which the Supreme Judicial

Court reversed, is reproduced as

Appendix B hereto.

JURISDICTION

The judgment of the Massachusetts

Supreme Judicial Court was entered on

March 27, 1990 (App. la). The Supreme

Judicial Court held that a decision of

the Massachusetts Board of Registration

in Medicine violated the double jeopardy

Clause of the Fifth Amendment to the

United States Constitution. Petitioner

invokes the jurisdiction of the Court

under 28 U.S.C. § 1257 (1988 ed.).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The double jeopardy clause of the

Fifth Amendment to the United States

Constitution provides in pertinent part:

[N])or shall any person be

subject for the same offense

to be twice put in jeopardy

of life or limb.

Mass. G.L. c. 112, § 5 (1988

ed.) provides in pertinent part:

The board [of registration

in medicine] may, after a

hearing . . . revoke,

Suspend, or cancel the

certificate of registration,

Or reprimand, censure,

impose a fine not to exceed

ten thousand dollars for

each classification of

violation, require the

performance of up to one

hundred hours of public

service, in a manner and at

a time and place to be

determined by the board,

require a course of

education or training or

otherwise discipline a

physician...

Mass. G.L. c. 112, § 64 (1988 ed.)

provides in pertinent part:

The supreme judicial

court, upon petition of a

person whose certificate,

registration, license or

authority has been

suspended, revoked or

cancelled, may enter a

decree revising or reversing

the decision of the board in

accordance with the

standards for review

provided in paragraph (8) of

section fourteen of chapter

Chatty A. 2 «4 8

STATEMENT OF THE CASE

1. Facts

During a five year period ending in

1986, Dr. Lawrence Kvitka, together with

two other individuals, engaged in a

scheme to distribute percocet)’

unlawfully and for profit, through the

issuance of fraudulent prescriptions

(App. 2a). Pursuant to this scheme, in

1985 and 1986, Dr. Kvitka wrote

approximately 245 prescriptions in the

names of various patients, former

patients, and other persons who never

received them (App. 2a). Dr. Kvitka

sold the prescriptions to the other two

individuals for thirty dollars apiece;

they then filled the prescriptions at

various pharmacies (App. 14-15).

This scheme came to light as a

result of routine inspections of

pharmacy files by officers of the

1/

Percocet is a trade name for

oxycodinone, a narcotic depressant

Classified at Mass. G.L. c. 94C,

§ 31B(d)(1) (1988 ed.) as a class B

controlled substance.

Massachusetts State Police (App. 14a).

After repeatedly noting Dr. Kvitka’s

name on prescriptions for either thirty

or fifty tablets of percocet, filled at

a large number of pharmacies, the police

began contacting the patients named in

the prescriptions (App. 14a-16a). The

persons contacted denied knowledge of

the prescriptions (App. 16a-26a).

On April 30, 1987, state police

officers arrested Dr. Kvitka on charges

of unlawfully dispensing controlled

substances in violation of Mass. G.L.

c. 94C, § 19(a) (1988 ed.) (App. 2a,

28a). At the time of his arrest, Dr.

Kvitka admitted his participation in the

scheme, and explained his motivation as

to obtain "some pin money . . . some

money that he didn’t have to report."

(App. 2a, 28a-30a). He estimated that

he had "made approximately eight to ten

- 6 -

thousand dollars in this manner."

(App. 2a, 29a). On May 25, 1988,

Dr. Kvitka pled guilty to ten counts of

violating Mass. G.L. c. 94C, § 19(a)

(1988 ed.) (App. 2a). He received a

sentence of three to five years in the

state prison, suspended, and fines

totalling $60,000, to be paid in monthly

installments (App. 2a).

On September 16, 1987, the Board of

Registration in Medicine ("the Board")

issued a complaint charging Dr. Kvitka

with five separate violations of

statutes and regulations governing the

practice of medicine (App. 8a-9a).

After an evidentiary hearing before a

hearing officer, the Board entered

detailed findings of fact and

conclusions of law (App. 8a-37a). In

its Decision and Order of September 7,

1988, the Board found Dr. Kvitka guilty

of: (1) conduct which places into

question his competence to practice

medicine; (2) practicing medicine

deceitfully and engaging in conduct

which has the capacity to deceive or

defraud; (3) an offense against a

provision of the laws of the

Commonwealth relating to the practice of

medicine; and (4) conduct which

undermines public confidence in the

integrity of the medical profession and

which shows lack of good moral character

(App. 31a-33a). Observing that

Dr. Kvitka’s conduct "constituted a

flagrant abuse of the public trust

relating to controlled substances," the

Board revoked his license to practice

medicine and further ordered him to pay

a fine of ten thousand dollars within

fourteen days of its order

(App. 34a-36a). The Board characterized

the ten thousand dollar figure as "the

estimated sum that [Dr. Kvitka] gained

by his fraudulent scheme" (App. 36a).

2. Prior Proceedings

On October 12, 1988, Dr. Kvitka

filed a petition for judicial review of

the poard’s order in the Massachusetts

Supreme Judicial Court, pursuant to

Mass. G.L. c. 112, § 64 (1988 ed.)

(App. la). Dr. Kvitka’s petition

challenged only the fine, alleging that

it exceeded the Board’s statutory

authority, and that it violated his

constitutional protection against double

jeopardy (App. 2a).

On March 27, 1990, the Supreme

Judicial Court issued its decision

reversing the Board’s order (App. la).

The Supreme Judicial Court relied on

this Court’s decision in United States

v. Halper, 409 U.S. , 209 &. CE.

1892 (1989). As petitioner

demonstrates, infra, the Supreme

Judicial Court extended the scope of

that decision far beyond its terms, in a

manner that poses a substantial threat

to effective law enforcement in both

Civil and criminal proceedings.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED TO

CLARIFY THE LIMITS OF UNITED STATES

Vv. HALPER AND TO PROTECT EFFECTIVE

LAW ENFORCEMENT.

In United States v. Halper, 409

U.S. , 109 S. Ct. 1892 (1989), this

Court held that "under the Double

Jeopardy clause a defendant who already

has been punished in a criminal

- 10 -

prosecution may not be subjected to an

additional civil sanction to the extent

that the second sanction may not fairly

be characterized as remedial, but only

as a deterrent or retribution." 409

ae, 6208 &. Ct. at 1902. That

holding arose from an extreme factual

context, involving a civil monetary

sanction in an amount "exponentially

greater than the amount of the fraud."

cee . 309 &. Ct. at 1900.2/

Describing its decision as "a rule for

2/ The defendant in Halper had

submitted 65 false claims, each of which

overstated the amount due by nine

dollars; he thereby obtained a total of

$585 in unearned reimbursement. After a

criminal prosecution resulting in a

sentence of imprisonment for two years

and a $5,000 fine, the government

brought suit under the Civil False

Claims Act, which provides for a

sanction of $2,000 per false claim, plus

costs, for a total of more than

$130,000. 109 S. Ct. at 1896.

the rare case," the Court took pains to

limit its application to a narrow

category of cases involving similarly

disproportionate monetary penalties.

409 U.S. at _.__, 109 S. Ct. at 1902.

In the year since Halper, several

federal courts have read that case as

not precluding civil fines or

forfeitures, despite previous criminal

punishment, in the absence of the gross

disproportion presented there. E.q.

United States v. A Parcel of Land, 884

F.2d 41 (lst Cir. 1989) (Halper rule

does not bar forfeiture of entire parcel

of land after criminal prosecution for

growing marijuana on part of parcel);

United States v. WRW Corporation, et

al., 731 F. Supp. 237 (E.D. Ky. 1989)

($90,350.00 civil penalty for violation

of coal mine safety standards survives

Halper, despite criminal punishment for

same acts); United States v. United

States Fishing Vessel Maylin, 725 F.

Supp. 1222 (S.D. Fla. 1989) (forfeiture

of $55,000 boat for fish and game

violations not precluded by previous

criminal punishment); United States v.

Pani, 717 F. Supp. 1013 (S.D. N.Y. 1989)

($32,460 civil penalty for $1,280 in

false claims, already punished in

criminal court, not so disproportionate

as to be second punishment under Halper).

In the decision below, however, the

Supreme Judicial Court has misread

Halper. The Supreme Judicial Court’s

decision contrasts sharply with these

federal court interpretations of Halper,

and demonstrates that, despite this

Court’s explicitly narrow holding, the

Halper decision is susceptible of

serious misinterpretation. The Court

should therefore grant the Writ in order

to clarify the limits of Halper and to

forestall further unwarranted extensions

of that decision.

A. The Supreme Judicial Court has

Applied Halper too Broadly.

The Supreme Judicial Court has

misinterpreted Halper in two significant

respects. First, the Court looked to

the Board’s stated reasons for imposing

the fine, thus relying on a subjective

test of motivation, rather than an

objective test of effect. Second, the

Court read Halper as limiting the

permissable remedial purposes of a

monetary sanction to reimbursement of

the government or an identifiable victim

for a direct monetary loss, thus

ignoring longstanding federal authority

- 14 -

that recognizes disgorgement of illicit

profit as remedial. See infra pp. 22 -

23.

1. The Court Below Erroneously

Applied a Subjective Analysis.

The Supreme Judicial Court began its

evaluation of the purpose of the Board’s

fine against Dr. Kvitka by observing

that "the Board, in articulating its

rationale for imposing the sanctions,

did not indicate that its purpose was

remedial." 407 Mass. at 145 (App. 6a).

The court went on to note that "the

Board, in its decision, did not base the

fine on its administrative expenses."

Id. at 146 (App. 7a). Rather, the Court

observed, "the board characterized the

physician’s actions as ’a flagrant abuse

of the public trust,’ and stated that

‘misconduct in the area of prescription

practice’ will not be treated lightly."

- 15 -

Id. at 145 (App. 6a). From these

observations that Court inferred "both a

desire on the part of the board to

penalize the physician and a warning to

other physicians to refrain from

engaging in similar conduct." Id. The

Court thus concluded that the purposes

of the fine were punitive, not remedial,

so that the fine was a constitutionally

prohibited second punishment.

This approach is directly contrary

to this Court’s decision in Halper. The

Court there described the proper inquiry

not as an evaluation of the subjective

intentions of the decision-maker, but as

"a particularized assessment of the

penalty imposed and the purposes that

the penalty may fairly be said the

serve." 409 U.S. at , 109 S. Ct. at

1901. The sanction is punishment, in

the Court’s words, "when the sanction as

applied in the individual case serves

the goals of punishment." Id., 409 U.S.

at _.._, 109 S. Ct. at 1902. Thus, the

reviewing court should consider not what

motivated the decision-maker to impose a

particular sanction, but what effect the

sanction actually has.

This distinction of analytic

approach is no mere academic point. On

the contrary, it was this distinction,

and the practical consequences that flow

from it, that led Justice Kennedy to

write a separate concurring opinion

stressing that the Court’s holding

"Constitutes an objective rule that is

grounded in the nature of the sanction

and the facts of the particular case."

Id., 409 U.S. at , 109 S. Ct. at

1904. The decision, Justice Kennedy

emphasized, "does not authorize courts

to undertake a broad inquiry into the

subjective purposes that may be thought

to lie behind a given judicial

proceeding." See also Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963).

Such an inquiry, Justice Kennedy

observed, “would be amorphous and

speculative, and would mire the courts

in the quagmire of differentiating among

the multiple purposes that underlie

every proceeding . . . [it] would also

breed confusion among legislators who

seek to structure the mechanisms of

proper law enforcement within

constitutional commands."

Furthermore, a subjective analysis

of the sort the Supreme Judicial Court

engaged in would make constitutional

adjudication turn on the fortuity of the

- 18 =

decision-maker’s choice of phrasing in

explaining the sanction; a sanction

described by reference to the

seriousness of the offense would be

viewed as retributive, and therefore as

punishment for double jeopardy purposes,

while the same sanction, for the same

offense, in another case would not

qualify as punishment, merely because

the decision-maker refers to its

remedial effects, remaining silent as to

the desirability of deterrence and

retribution. This arbitrary result

would subvert effective law enforcement

and undermine respect for the law.

Had the Supreme Judicial Court

applied the proper analysis under

Halper, it would have noted that the

$10,000 fine imposed by the Board

closely approximated the eight to ten

thousand dollars that Dr. Kvitka himself

estimated he had gained through his

fraudulent scheme (App. 2a). It would

thus have concluded that the fine served

to prevent Dr. Kvitka from retaining his

illicit profit, and thus to promote the

actual and perceived integrity of the

medical profession.2/

This effect, as the Supreme Judicial

Court additionally failed to recognize,

is remedial and not punitive for

purposes of double jeopardy analysis.

See part 2 infra.

3/ In addition, the fine could be

expected to provide the Commonwealth a

rough approximation of the likely cost

of investigating and prosecuting Dr.

Kvitka’s misconduct. See United States

v. A Parcel of Land, 884 F.2d at 44;

United States v. WRW Corp., 731 F. Supp.

at 239

- 20 =-

2. The Court Below Misinterpreted

Halper as Holding That a Fine

Compelling the Disgorgement of

Illicit Profits Could not be

Considered Remedial.

Relying solely on Halper, the

Supreme Judicial Court held that "forced

disgorgement of illicit profits...

cannot be considered remedial under the

double jeopardy clause." 407 Mass. at

140.4/ The Court distinguished Halper

on the ground that "(tjhis is not a case

where the government itself has suffered

a loss because of the physician’s fraud

- or where there is an identifiable

victim who has suffered damages due to

the physician’s actions." Id. fThus,

the Supreme Judicial Court apparently

4/ This reference to the double

jeopardy clause would refute any

suggestion that the court relied on any

state law ground for its rejection of

disgorgement as a remedial purpose.

- 21-

understood Halper as holding that the

only remedial purpose of a monetary

sanction would be to reimburse the

government, or an identifiable victim,

for direct monetary loss.

Halper does not so hold. Since the

offense involved there was a financial

one directed against the government, it

is hardly surprising that this Court’s

opinion made reference to reimbursement

for monetary damage and for costs as the

permissible remedial purposes of a money

sanction in that case. But nothing in

Halper suggests that such reimbursement

is the only purpose that would qualify

as remedial under the double jeopardy

Clause. Moreover, long-standing federal

precedent indicates that disgorgement is

remedial, not punitive. S.E.C. v.

MacDonald, 699 F.2d 47, 54 (lst Cir.

- 22 -

1983) ("([d]isgorgement is remedial and

not punitive"); see Tull v. United

States, 481 U.S. 412, 423-4

(1986) (disgorgement of illicit profits

distinguished from punishment); S.E.C.

v. Tome, 833 F.2d 1086, 1096 (2d Cir.

1987) (primary purpose of disgorgement is

"to make sure that wrongdoers will not

profit from their wrongdoing"). This

Court’s decision in Halper contains no

hint of any intention to overrule these

cases.

B. The Decision Below Poses a

Substantial Threat to Effective

Law Enforcement.

The Supreme Judicial Court’s

expansive reading of the Halper decision

calls into question the validity of

sanctions regularly imposed in a wide

variety of civil law enforcement

- 23-

proceedings, both state and federal,

involving conduct that may also be the

subject of criminal prosecution. In

addition, and perhaps even more

alarming, the decision below threatens

to impede criminal prosecutions in a

significant category of cases where

criminal sanctions would be appropriate.

1. The Decision Would Hamper

Civil Law Enforcement

Proceedings.

In addition to professional

discipline cases such as the one in

issue here, and cases under the federal

False Claims Act, such as Halper, state

and federal authorities rely on civil

proceedings to enforce statutes

promoting a wide range of public goals.

These goals include environmental

protection, e.g. Mass. G.L. c. 21,

§§ 26-53 (Clean Waters Act), c. 21C, § l

- 24 -

et seq. (Hazardous Waste Management

Act), c. 111, § 142A-J (Clean Air Act);

collection of taxes, e.g. Helvering v.

Mitchell, 303 U.S. 391 (1938);

prevention of the dissemination of

illicit drugs, e.g. United States v. A

Parcel of Land, 884 F.2d 41 (list Cir.

1989); and enforcement of customs

regulations, e.g. One Lot Emerald Cut

Stones v. United States, 409 U.S. 232

(1972).

Under the Supreme Judicial Court’s

broad reading, Halper would require an

inquiry into the subjective motivations

of the decision-maker whenever such a

case follows criminal punishment. Any

hint of a hope to deter, to express

condemnation of the misconduct, or to

restore the wrongdoer to his previous

position, might invalidate the

- 25 -

sanction. Indeed, under the Supreme

Judicial Court’s ruling, a civil

monetary sanction that follows criminal

punishment could survive only if it

provides direct reimbursement for

monetary loss suffered by the

government, and even then only if the

decision-maker acknowledges no motive

other than to effect such reimbursement.

2. The Decision Would Hamper

Criminal Prosecutions.

Moreover, under the Supreme Judicial

Court’s interpretation, the Halper rule

might substantially impair the

government’s ability to enforce the laws

through criminal prosecutions, as well

as Civil proceedings. From Halper’s

holding that a civil sanction may

constitute punishment for double

jeopardy purposes, it may be argued that

- 26 -

a punitive civil sanction would bar a

later criminal prosecution. At least

three federal courts have so held.

United States v. Mayers, 897 F.2d 1126,

1127 (11th Cir. 1990); United States v.

Sanchez, 47 Crim. L.R. 1026 (S.D. Tex.,

3/14/90); United States v. Marcus

Schloss & Co., Inc., 724 F. Supp. 1123,

1126 (S.D.N.Y. 1989). Under the Supreme

Judicial Court’s expansive reading of

Halper, this bar to criminal prosecution

might be held to apply ina

Significantly larger category of cases

than it would if Halper were limited to

"the rare case" described in this

Court’s decision.

For example, under the Supreme

Judicial Court’s ruling, had the Board’s

action against Dr. Kvitka preceeded the

criminal prosecution, the $10,000 fine

=~ 299 «

might have been held to bar the criminal

court from imposing any punishment on

Dr. Kvitka for his illegal dispensing of

drugs. That effect might even extend to

cases where the appropriate criminal

punishment would not be limited to a

fine, but would include imprisonment.

Under the Supreme Judicial Court’s

reasoning, the double jeopardy bar might

apply even when the characterization of

the prior civil sanction as punitive

arises solely from an agency’s careless

reference to deterrence, along with some

remedial purpose. This result, together

with the lower court’s narrow conception

of remedial purposes under the double

5/ This Court’s decision in Halper does

not suggest that any aspect of double

jeopardy analysis would turn on the type

of punishment imposed in the criminal

proceeding.

- 28 -

<<< °° se

jeopardy clause, could have devastating

consequences for the effectiveness of

law enforcement. Criminal authorities

may be barred from prosecuting serious

crimes because of relatively minor

sanctions imposed by agencies over which

they have no control.

Moreover, the prospect that their

decisions might have that effect would

tend to discourage civil law-enforcement

agencies from imposing sanctions that

would otherwise be appropriate. The

possibility of such an effect might also

provide an incentive for the wrongdoer

actively to seek civil sanctions,

possibly through a negotiated

disposition, so as to immunize himself

from criminal prosecution, and the more

severe sanctions it might bring.

Because of these possible far-reaching

- 29 -

consequences, this Court should review

and reverse the Supreme Judicial Court’s

decision.

CONCLUSION

For the reasons set forth herein,

the petition for a writ of certiorari

should be granted.

Respectfully submitted,

JAMES M. SHANNON

ATTORNEY GENERAL

COMMONWEALTH OF MASSACHUSETTS

KUL *(C- fz if

Judith Fabricant*

/ Assistant Attorney General

“ One Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200, ext. 2076

*Counsel of Record

Dated: June -.“ 1990

TABLE OF CONTENTS

Appendix A

Opinion of the Supreme

Judicial Court for the

Commonwealth of

Massachusetts,

dated March 27, 1990

Appendix B

Opinion of the Massachusetts

Board of Registration

in Medicine, dated

September 7, 1988

la

8a

140 407 Mass. 140

Kvitke v. Board of Registration in Medicine

LAWRENCE KVITKA vs. BOARD OF REGISTRATION IN

MEDICINE.

Suffolk November $8. 1989 - March 27, 1990

Present Liacos. CJ. Wiaira Apanass, O'Cowwon. & Gatawey, JJ

Board of Registration in Medicine. Administrative Law, Agency, Jadicial

review, Agency's interpretation of statute. Constitutional Law, Double

jeopardy.

Although the Board of Registration in Medicine, after a hearing, acted

within its authority under G. L. c. 112, § 5, in ordering both the revo-

cation of a physician's license to practice medicine and the imposition

of a fine [142-144], the board's levying the fine, after judgment had

been imposed on the physician in a criminal proceeding, constituted a

second punishment in violation of the constitutional protection against

double jeopardy, where a fair reading of the board's decision did not

indicate that its purpose in imposing the fine was remedia! but, instead,

was to punish the physician and to deter future wrongdoing [144-146].

CIVIL ACTION commenced in the Supreme Judicia! Court

for the county of Suffolk on October 12, 1988.

The case was reported by Abrams, J.

Dale C. Schneider for the plaintiff.

Judith Fabricant, Assistant Attorney General, for the

defendant.

Liacos, C.J. In May, 1988, Dr. Lawrence Kvitka pleaded

guilty in Superior Court to ten counts of unlawfully dispens-

ing controlled substances in violation of G. L. c. 94C, § 19

(a) (1988 ed.). He received a three to five year suspended

prison sentence and fines totalling $60,000. In September,

1988, the Board of Registration in Medicine (board), after a

hearing, revoked Kvitka's license to practice medicine and

ordered him to pay a fine of $10,000. The physician, pursu-

ant toG. L. c. 112, § 64 (1988 ed.), appealed the decision of

the board to a single justice of this court, who reserved and

la

407 Mass. 140 14)

Kvitha » Board of Regisiration in Medicine

reported the case to the full court. Kvitka challenges only the

propriety of the $10,000 fine. We reverse the decision of the

board.

Kvitka was a physician, licensed to practice medicine in

the Commonwealth. For a period of five years, until April,

1987, Kvitka wrote prescriptions for the drug Percocet and

gave these prescriptions to two individuals. On their face, the

prescriptions purported to be issued to patients of Kvitka.

The two individuals paid the physician $30 for each prescrip-

tion. The patients, whose names were used, had no know!l-

edge of the physician's machinations. The physician wrote at

least 245 prescriptions in this manner. Kvitka admitted that

he made between $8,000 and $10,000 through this scheme.

He stated that he engaged in this operation for some extra

cash that he would not have to “report.”

On Apri! 30, 1987, Kvitka was arrested at his office. On

May 25, 1988, he pleaded guilty to ten counts of violations of

G. L.c. 94C, § 19 (a). A Superior Court judge sentenced the

defendant to a term of no less than three and no more than

five years at the Massachusetts Correctional! Institution at

Cedar Junction; the execution of the sentence was suspended

for a period of three years. The judge also imposed a fine of

$4,500 on each of the ten counts to which the defendant

pleaded guilty, and a $1,500 surfine on each of the ten

counts, for a total of $60,000.

Kvitka voluntarily surrendered his Drug Enforcement

Agency certificate of registration on April 30, 1987, thereby

relinquishing his privilege to prescribe controlled substances.

In its final decision and order, the board concluded that the

respondent was (1) guilty of conduct which places in ques-

tion his competence to practice medicine, including gross

misconduct in the practice of medicine, and practicing

medicine fraudulently and beyond its authorized scope, in vi-

olation of G. L. c. 112, §§ 5 (c) and 61 (1988 ed.), and 243

Code Mass. Regs. § 1.03(5)(a)(3) (1987); (2) guilty of prac-

ticing medicine deceitfully and engaging in conduct which

has the capacity to deceive or defraud, in violation of 243

Code Mass. Regs. § 1.03(5)(a)(10) (1987); (3) guilty of an

2a

142 407 Mass. 140

Kvitksa v Board of Reguirauon in Medicine

offense against a provision of the laws of the Commonwealth

relating to the practice of medicine, and a rule or regulation

adopted thereunder, pursuant to G. L. c. 112, §§ 5 (c) and

61, and 243 Code Mass. Regs. § 1.03(5)(a)(3) and § 1.03

(5)(a)(10); and (4) guilty of conduct which undermines pub-

lic confidence in the integrity of the medical profession and

which shows a lack of good moral character.’

The board revoked Kvitka's license to practice medicine in

the Commonwealth. The board ordered Kvitka to pay a fine

of $10,000, “the estimated sum that [the physician] gained

by his fraudulent scheme.”

In discussing its imposition of the sanctions, the board

stated: “As a licensed physician in the Commonwealth, the

[physician] is entrusted with the grave responsibility of issu-

ing prescriptions for controlled substances. .. . The board has

long viewed with the utmost seriousness any physician's in-

ability or failure to faithfully discharge this responsibility. . . .

The [physician's] conduct in this case constituted a flagrant

abuse of the public trust relating to controlled substances,

and such action requires the board to take appropriate action

to protect the public. ... The board has indicated in previous

decisions that misconduct in the area of prescription practice

will not be treated lightly.” (Citations omitted.)

1. The board's statutory authority to impose sanctions.

Kvitka argues that the board did not have statutory authority

both to revoke his license and to impose a fine. He argues

that the language of G. L. c. 112, § 5, which empowers the

board to discipline physicians, does not allow for the dual

sanctions which the board meted out to the physician. We

disagree.

General Laws c. 112, § 5 (1988 ed.), provides in relevant

part:

“The board may, after a hearing pursuant to chapter

thirty A, revoke, suspend, or cancel the certificate of re-

'The board also concluded that Kvitka was not guilty of fraudulently

procuring his certificate of registration or its renewal, in violation of

G. L. c. 112, § 5 (a), and 243 Code Mass. Regs. § 1.03(5)(a)(1).

3a

407 Mass. 140 143

Kvitha v Board of Regisiratron in Medicine

gistration, or reprimand, censure, impose a fine not to

exceed ten thousand dollars for each classification of vi-

olation, require the performance of up to one hundred

hours of public service, in a manner and at a time and

place to be determined by the board, require a course of

education or training or otherwise discipline a physician

“The role of the board in the over-all statutory scheme is

to take primary responsibility in the regulation of the prac-

tice 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, § 3. To further this pur-

pose, we have said that G. L. c. 112, § 5, is to be broadly

construed. Levy, supra at 525. Kvitka argues that the stat-

ute’s use of the word “or” between the words “registration”

and “reprimand” gives the board the choice to impose either

those sanctions which appear before the word “or,” or those

sanctions which appear after that word, but not both. We

think Kvitka's interpretation too narrowly construes the stat-

ute. In our view, the statute gives the board broad latitude in

shaping appropriate sanctions in each case. Levy, supra at

525. Were we to adopt the physician's reasoning, the board

would be powerless, for example, to suspend temporarily a

physician's license while ordering the physician to undergo a

course in education as a condition for lifting the suspension.

We do not think § 5 can be reasonably read to so limit the

board's authority. By including the phrase “or otherwise dis-

cipline a physician,” the statute allows the board to devise

sanctions not specifically enumerated in the statute. We do

not consider this provision to have restrained the board from

imposing appropriate sanctions while suspending or revoking

a physician's license. Of course, any sanction actually im-

posed would be subject to judicial review for abuse of discre-

tion. G. L. c. 112, § 64. G. L. c. 30A, § 14 (1988 ed.).

We note, in addition, that the board frequently has inter-

preted the statute to allow both license revocation and a fine.

4a

144 407 Mass. 140

Kvitka +» Board of Registration in Medicine

“The duty of statutory interpretation is for the courts... but

an administrative agency's interpretation of a statute within

its charge is accorded weight and deference” (citation omit-

ted). Massachusetts Medical Soc’y v. Commissioner of Ins.,

402 Mass. 44, 62 (1988).

We conclude that the board acted within its statutory au-

thority in ordering the physician to pay the $10,000 fine.

However, this conclusion does not end our inquiry. We must

consider whether Kvitka's constitutional claims have merit in

light of the fine of $60,000 imposed on him in the preceding

criminal case.

2. Double jeopardy. Kvitka argues that the board’s imposi-

tion of the $10,000 fine, after judgment had been imposed by

a criminal court, constituted a second punishment in viola-

tion of the constitutiona! protection against double jeopardy.*

Kvitka relies principally on a recent case decided by the

United States Supreme Court, United States v. Halper, 109

S. Ct. 1892 (1989). In Halper, the Supreme Court was faced

with the question whether, and in what circumstances, a civil

penalty constitutes punishment under the double jeopardy

clause. The defendant in that case, Irwin Halper, had sub-

mitted sixty-five false claims for reimbursement to Blue

Cross and Blue Shield of Greater New York. Blue Cross

overpaid Halper's company $585, and passed these

overcharges on to the Federal government. Jd. at 1896.

Halper was convicted on sixty-five counts of violating the

criminal false claims statute, and on sixteen counts of mail

fraud. He was sentenced to two years’ imprisonment and

fined $5,000.

The Federal government brought an action against Halper

under the civil False Claims Act, 31 U.S.C. §§ 3729-3731

(1982 & Supp. III] 1985). The Federal District Court

granted summary judgment for the government on the issue

of liability. The court determined that the statutory penalty

*The double jeopardy clause of the Fifth Amendment to the United

States Constitution reads: “(Nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb.”

5a

407 Mass. 140 145

Kvitke v Board of Registration in Medicine

was $130,000, but concluded that this penalty was barred by

the double jeopardy clause.

The Supreme Court, on appeal, stated that “the determi-

nation whether a given civil sanction constitutes punishment

in the relevant sense requires a particularized assessment of

the penalty imposed and the purposes that the penalty may

fairly be said to serve... . ‘[R]etribution and deterrence are

not legitimate nonpunitive governmental objectives.”. . . [I]t

follows that a civil sanction that cannot fairly be said solely

to serve a remedial purpose, but rather can be explained only

as also serving either retributive or deterrent purposes, is

punishment, as we have come to understand the term... .

We therefore hold that under the Double Jeopardy Clause a

defendant who already has been punished in a criminal pros-

ecution may not be subjected to an additional civil sanction

to the extent that the second sanction may not fairly be char-

acterized as remedial, but only as a deterrent or retribution.”

(Citations omitted; emphasis supplied.) United States v.

Halper, supra at 1901-1902.*

The $10,000 fine cannot survive under Halper. The board,

in articulating its rationale for imposing the sanctions, did

not indicate that its purpose was remedial. A fair reading of

the board’s decision reveals that its purpose in imposing the

fine was to punish the physician and to deter future wrongdo-

ing. The board characterized the physician's actions as “a

flagrant abuse of the public trust’ and stated that “miscon-

duct in the area of prescription practice will not be treated

lightly.” These statements indicate both a desire on the part

of the board to penalize the physician and a warning to other

physicians to refrain from engaging in similar conduct. In

*The Supreme Court remanded the case to the District Court to give the

government “an opportunity to present to the District Court an accounting

of its actual costs arising from Halper's fraud, to seek an adjustment of the

District Court's approximation, and to recover its demonstrated costs.”

United States v. Halper, supra at 1903-1904.

6a

146 407 Mass. 140

Kvitha + Board of Registration in Medicine

the light of the earlier criminal convictions, these goals are

disallowed by the double jeopardy clause.‘

Even if, as the board suggests, the fine amounted to a

forced disgorgement of illicit profits, that purpose cannot be

considered remedial under the double jeopardy clause. This

is not a case where the government itself has suffered a loss

because of the physician's fraud, cf. United States v. Halper,

supra, or where there is an identifiable victim who has suf-

fered damages due to the physician's actions. The only reme-

dial aspect of the fine in this case would have been to reim-

burse the board for the expenses in handling the

administrative matter against the physician. But the board,

in its decision, did not base the fine on its administrative

expenses.®

We therefore remand this action to the single justice with

directions to enter a judgment reversing the decision of the

board with respect to the $10,000 fine.

So ordered.

“We note that revocation of the physician's license is considered to be

remedial under the double jeopardy clause. See Helvering v. Mitchell, 303

U.S. 391, 399-400 n.2 (1938) (disbarment of attorneys is remedial), citing

Ex parte Wall, 107 U.S. 265 (1882).

*We do not decide whether G. L.c. 112, § 5S. grants the board authority

to recover its costs through the imposition of a fine.

7a

COMMONWEALTH OF MASSACHUSETTS

BOARD OF REGISTRATION IN MEDICINE

Suffolk, ss. Adjudicatory Case

No. 88-14-SU

In the Matter of Final

Decision &

LAWRENCE KVITKA, M.D. Order

Appearances by: Janice H. Biederman,

Esq., for the Board of

Registration in

Medicine

Robert A. Griffith,

Esq., for the

Respondent

Summary of Proceedings

°

This case was commenced by Statement

of Allegations, dated September 16,

1987, in which the Board of Registration

in Medicine (the "Board") alleged that

Lawrence Kvitka (the "Respondent"),

violated M.G.L. c. 112, § 5(a) and 243

CMR 1.03(5)(a)(1) (guilty of

- 8a -

en

fraudulently procuring his certificate

of registration or its renewal); M.G.L.

c. 112, § 5(b) and 243 CMR 1.03

(5) (a) (2) (guilty of an offense against

any provision of the laws of the

Commonwealth relating to the practice of

medicine, or any rule or regulation

adopted thereunder); M.G.L. c. 112,

§§ 5(c) and 61 and 243 CMR 1.03(5) (a) (3)

(guilty of conduct which places into

question his competence to practice

medicine, including but not limited to

gross misconduct in the practice of

medicine, practicing medicine

fraudulently, or beyond its authorized

scope, or with gross incompetence, or

with gross negligence on a particular

occasion or negligence on repeated

occasions); and 243 CMR 1.03(5) (a) (10)

(guilty of practicing medicine

- 9a -

deceitfully, or engaging in conduct

which has the capacity to deceive or

defraud). In addition, the Board

charged that the Respondent was guilty

of conduct which undermines public

confidence in the integrity of the

medical profession or for conduct which

shows lack of good moral character.

Raymond v. Board of Registration in

Medicine, 387 Mass. 708 (1982), and Levy

v. Board of Registration in Medicine,

378 Mass. 519 (1979).

Specifically, the Board alleged that

the Respondent had unlawfully written

approximately two hundred forty five

prescriptions for Percocet in the names

of his patients, which were then filled

by two individuals, who were not

patients, and who filled them in area

pharmacies. In exchange for the

- 10a -

Ee

prescriptions, the Respondent received

$30.00 for each prescription he wrote.

The Statement also alleged that the

Respondent had been criminally arraigned

for the above illegal conduct.

On September 16, 1987, this matter

was referred to the current Hearing

Officer and a hearing date was scheduled

for February 11, 1988, which was

continued until March 1, 1988, at which

time the adjudicatory hearing took

place. At the hearing, the Respondent

exercised his rights under Article

Twelve of the Massachusetts Constitution

and his Fifth Amendment rights under the

U.S. Constitution and remained silent.

The Respondent was reminded by the

Hearing Officer that the Board was

entitled to draw an adverse inference

from his silence. Both parties

- lla -

submitted memoranda on sanction.

Description of Evidence

The following evidence has been

considered in this decision:

The Associate Prosecutor offered the

testimony of:

a) The Respondent, who exercised

his Fifth Amendment rights to remain

Silent; and,

b) Francis O’Brien, a Massachusetts

State Police Officer, regarding his

investigation of the Respondent’s

practice, interviews with patients, and

former patients.

The Associate Prosecutor also

offered the following documentary

evidence:

Exhibit 1: The Respondent’s

1987-1989 license renewal application,

signed by him and dated September 11,

1987.

- 12a -

Exhibit 2: Twenty State Police

Investigatory Reports from Troopers

Francis O’Brien and Robert Scott, and

Corporal William Brown, of the Diversion

Investigative Unit ("DIU") of the

Massachusetts State Police, to Detective

Captain Alfred Duemling, regarding the

Respondent, dated May 29, 1987, with

copies of prescriptions attached to the

reports;

Exhibit 3: Copy of the Respondent’s

"Voluntary Surrender of Controlled

Substances Privileges," from the U.S.

Drug Enforcement Agency ("DEA"), dated

April 30, 1987; and,

Exhibit 4: Copy of nineteen letters

of support for the Respondent, submitted

by stipulation of the parties and

introduced into the record on March 22,

1988.

- 13a -

The Respondent presented no evidence

at the time of the hearing.

Findings of Fact

On the basis of the pleadings and

the evidence in the Record, we make the

following findings:

1. The Respondent is licensed to

practice medicine in the Commonwealth

under Certificate No. 19765, which is

current. (Bx. i)

2. Trooper Francis M. O’Brien, of

the Diversion Investigative Unit of the

State Police, stated that in 1986 he

became aware of the Respondent’s name in

conjunction with his routine inspections

of Schedules 2, 3, 4, and 5 controlled

substances files in a number of

pharmacies spread throughout the Boston

and South Shore area. During these

inspections, he noticed that all of the

- 466 -

Respondent’s prescriptions were for

Percocet, and that between 1985 and

1986, the number of tablets in each

prescription increased from thirty to

fifty. He, and other members of the

Diversion Investigative Unit of the

State Police ("DIU") and the Federal

Drug Enforcement Agency ("DEA"), began

analyzing the prescriptions. The

subject pharmacies all had prescriptions

written by the Respondent for several

patients, which were spaced three or

four months apart. All prescriptions

were written for thirty or fifty tablets

of Percocet. Ultimately, as a result of

this investigation, the DIU and DEA

uncovered two hundred and forty five

(245) prescriptions, in approximately 60

area pharmacies, representing

approximately eighty (80) patients.

(Ex. 2, Tr. I, 16-18)

- 15a -

3. During his investigation, a

number of persons listed on the

prescriptions were contacted. Trooper

O’Brien summarized his meeting with P.O.

and D.0O., husband and wife, of Milton,

regarding four prescriptions for

Percocet (50 tablets), written for P.O.,

as follows:

[D.0.] advised me that she did

know the doctor; in fact they had

been associated back in the early

eighties at Latin Academy where she

was a school nurse and the doctor

had some association. But she

hadn’t seen him in many years. She

stated that she may have seen him as

a patient once, though, she couldn’t

recall clearly. [P.0.], her

husband, said he’s never been a

patient of the doctor’s, doesn’t

recall ever meeting him, may have

spoken to him on the telephone once,

and stated the first time he ever

saw Doctor Kvitka was on television

when he was arrested. I showed

[P.0.] the four prescriptions in my

possession, he looked at each of

them, he said he never received them

had no knowledge of then. (ee. 2,

Te. i, 20-22)

4. Other persons who were listed on

the prescriptions were contacted in 1987

- 16a -

by either Trooper O’Brien, or Trooper

Robert Scott, and the patients’

accounts, similar to that of persons

P.O. and D.O., are summarized below:

a) J.D., of Brookline, was

contacted regarding six prescriptions

for Percocet, which had been filled at

the Rix Pharmacy in Brookline, and

stated he did not receive or fill these

prescriptions, nor did he have any

knowledge of them. He found the

Situation "ridiculous," and embarrassing

because, as an attorney, -he had referred

clients to the Respondent over the

years. (Ex. 2, Tr. I, 21-23)

b) M.H., of Dedham, was contacted

regarding six prescriptions for

Percocet, which had been filled at the

CVS Pharmacy in Needham, and peated sv

did not receive or fill these

- 278 <

prescriptions, nor did he have any

knowledge of them. She was a former

patient of the Respondent’s. (Ex. 2,

Tr. I, 23-24)

c) H.R., of Milton, was contacted

regarding 4 prescriptions for Percocet,

which had been filled at the Walgreen’s

in Hyde Park, and stated she did not

receive or fill these prescriptions, nor

did she have any knowledge of them. She

had been a patient of his, but had not

seen him in over a year. (Ex. 2, Tr. I,

25-26)

d) c.D., of Sharon, was contacted

regarding eight prescriptions for

Percocet, which had been filled at

Walgreen’s in Stoughton. He stated that

he did not receive or fill these

prescriptions, nor did he have any

knowledge of them. He had seen the

- 18a -

Respondent in 1985 for a diabetes test,

but had not seen him since 1985. (Ex. 2,

e) M.A., of Marshfield, was

contacted regarding four prescriptions

for Percocet, which had been filled at

the Brooks Drugstore, in Rockland, and

stated he did not receive or fill these

prescriptions, nor did he have any

knowledge of them. He had been a

patient of the Respondent’s in 1986, and

received blood pressure medication from

him, but had not seen him since that

came. (Ee. 3, Te. I, 326)

f) M.W., of Dorchester, was

contacted regarding eight prescriptions

for Percocet, which had been filled at a

number of drugstores in Dorchester and

Boston, and stated she did not receive

or fill these prescriptions, nor did she

- 19a -

have any knowledge of them. She was a

current patient of the Respondent’s and

was upset that her name appeared on the

prescriptions. (Ex. 2, Tr. I, 27)

g) P.M., Of Milton, was contacted

regarding three prescriptions for

Percocet, which had been filled at

Heartland Drugs in Quincy, and stated

she did not receive or fill these

prescriptions, nor did she have any

knowledge of them. She was a current

patient of the Respondent’s and stated

that the only time she ever received

Percocet was once from a dentist, after

the extraction of a wisdom tooth.

go: ae Pee, y ee PA

h) W.F., of West Roxbury, was

contacted regarding one prescription for

Percocet, and stated she did not receive

or fill this prescription, nor did she

- 20a -

have any Knowledge of it. She was a

current patient of the Respondent’s.

(Ex. 2, Tr. I, 29)

i) C.M., of Randolph, was contacted

regarding two prescriptions for

Percocet, which had been filled at a

Drug Fair in Randolph, and stated she

did not receive or fill these

prescriptions, nor did she have any

knowledge of them. She was a current

patient of the Respondent’s and stated

that she had not authorized the

Respondent to use her name on the

prescriptions. (Ex. 2, Tr. I, 30)

j) J.G., of Mattapan, was contacted

regarding five prescriptions for

Percocet and stated she did not receive

or fill these prescriptions, nor did she

have any knowledge of them. She last

visited the Respondent a year and a half

- 228 <

before to have her blood pressure

checked. (Ee. 2; TEs. £, Bh)

k) R.M., of Quincy, was contacted

regarding one prescription for Percocet,

which had been filled at a drugstore in

Dorchester, and stated she did not

receive or fill this prescription, nor

did she have any knowledge of it. She

is a current patient of the Respondent’s

and has been treated by him for weight

loss and hypertension. (Ex.2)

1) B.L., Of Brockton, was contacted

regarding a prescription for Percocet,

and stated she did not receive or fill

this prescription, nor did she have any

knowledge of it. She had been a patient

of the Respondent’s since childhood but

had not seen him in three years. (Ex. 2)

m) H.Q., Of Dorchester, was

contacted regarding four prescriptions

- 22a -

eee

for Percocet, which had been filled at a

drugstore in Dorchester, and stated she

did not receive or fill these

prescriptions, nor did she have any

knowledge of them. She was not a

patient of the Respondent’s, although

her daughter is, and stated that she has

been in his waiting room with her

daughter and grandchildren on occasion.

(Ex. 2)

n) H.R., of Milton, was contacted

regarding two prescriptions for Percocet

which had been filled at a drugstore in

Quincy, and stated he did not receive or

fill these prescriptions, nor did he

have any knowledge of them. He has

never been a patient of the

Respondent’s, nor has he ever heard of

him. (Ex. 2)

- 228 =

o) G.S., of Dorchester, was

contacted regarding one prescription for

Percocet, which had been filled at a

drugstore in Dorchester, and stated she

did not receive or fill this

prescription, nor did she have any

knowledge of it. She has been a patient

of the Respondent’S for twenty-five

years, but has never taken the drug

Percocet. (Ex. 2)

p) M.D., of Milton, was contacted

regarding three prescriptions for

Percocet, which had been filled at a

drugstore in Quincy, and stated he did

not receive or fill these prescriptions,

nor did he have any knowledge of them.

He is a former patient of the

Respondent’s but has not seen him for

five years. (Ex. 2)

- 24a -

—E7~

q) J.T., of Milton, was contacted

regarding four prescriptions for

Percocet, which had been filled at a

drugstore in Quincy, and stated he did

not receive or fill these

prescriptions. He has been a patient of

the Respondent’s for twenty years, and

last visited him in March, 1987 and

received vitamins from the Respondent.

(Ex. 2)

r) J.M., of Brockton, was contacted

regarding six prescriptions for

Percocet, which had been filled at a

drugstore in Holbrook, and stated he did

not receive or fill these prescriptions,

nor did he have any knowledge of then.

He last saw the Respondent in June, 1985

for a pulled muscle in his back. He

could not recall what medication he had

received at the time. (Ex. 2)

- 25a -

s) E.C., of Brockton, was contacted

regarding eight prescriptions for

Percocet, which had been filled at a

drugstore in Holbrook, and stated she

did not receive these prescriptions.

She has otherwise been a patient of the

Respondent’s for twenty-eight years.

(Ex. 2)

t) W.M., of Braintree, was

contacted regarding six prescriptions

for Percocet, which had been filled at a

drugstore in Braintree, and stated he

did not receive these prescriptions. He

is otherwise a current patient of the

Respondent’s. (Ex. 2)

5. On June 5, 1984, members of the

State Police Narcotics Unit interviewed

Robert Neil Byrnes who related that he

and Richard McCartney "cash[ed] the

prescriptions" after McCartney had

- 26a -

ee ee ee

interested Byrnes in the scam. The

police report relates how McCartney and

Byrnes carried out their scheme as

follows:

Subject Byrnes stated that he

first met Richard McCartney in the

Spring of 1984 at the Mattapan State

Hospital. . . where he was being

treated. Byrnes said that he was

broke and McCartney was a patient

there also. Byrnes became friendly

with McCartney and Byrnes stated

that he had no prospects of getting

a job and McCartney inquired if he

would be interested in cashing

prescriptions. McCartney explained

that the doctor was friendly with

all of the patients and that they

would not say anything and that the

doctor (Kvitka) would verify the

prescriptions if the pharmacy called

on them.... Bryne took care of

getting all the scripts and would

drive him around to all the

pharmacies and he would fill

them....Concerning the area in which

the pharmacies were located, Byrnes

stated that they went as far north

as Everett, Chelsea and Revere, as

far west as Natick, and as far south

as Taunton and Attleboro, and down

on the Cape as far as Dennisport and

Harwich....Byrnes stated that this

scam continued until January of 1987

when some patients called the doctor

and told him that they had been

- 27a =

contacted by the State Police....

Byrnes... [said] that McCartney

would provide him the money when he

went into the pharmacy and that he

would get five dollars ($5.00) for

each prescription filled. This went

on for approximately three years

except when the doctor went on

vacation - usually to Mexico in

September....Byrnes stated that on a

couple of occasions he accompanied

McCartney to the doctor’s office

after 5PM when it was closed. The

three of them would discuss patient

names they were going to use and

particular pharmacies. (Ex. 2)

6. On April 30, 1987, the

Respondent was arrested at his office.

The Respondent admitted to the arresting

officers that he had been writing

prescriptions for Percocet in the names

of his patients and giving them to two

individuals, Richard McCartney and

Robert Byrnes, who filled them in area

pharmacies. (Ex. 2, Tr. I, 36-39) At

an interview with the Respondent, which

occurred on April 30, 1987, Trooper

O’Brien learned from the Respondent,

e 308 =

after he was advised of his Miranda

rights, that he had received thirty

dollars for each prescription he gave

Byrnes and McCartney. He also related

that he had been writing prescriptions

in this manner for approximately five

years. He confessed to having written

the 245 prescriptions in question. He

stated that he had made approximately

eight to ten thousand dollars in this

manner. The police asked the Respondent

whether he had been coerced or

threatened into his actions. The

Respondent answered that he had not.

When searching for a reason why he had

become involved in these activities, "he

couldn’t come up with one. The best he

could say was that he just did it for

some extra cash and his quote was ‘some

pin money’ - .. that’s the expression

- 29a -

he used.... Some money that he didn’t

have to report." (Ex. 2, Tr. I, 43-44,

46)

7. As a result of the foregoing

events, the Respondent voluntarily

surrendered his D.E.A. Certificate of

Registration on April 30, 1987, thereby

relinquishing his privilege to prescribe

controlled substances listed in

schedules II through V. fees FB, FTEs 2,

40)

8. On April 30, 1987, the

Respondent was arraigned in West Roxbury

District Court on five counts of

violating M.G.L. ch. 94C, sec. 19(a).

(Ex. 2)

9. According to a number of

supportive testimonials from fellow

physicians, former ane current patients,

he is a dedicated, caring and competent

- 30a -

professional. (Ex. 4) Although the

testimonials of persons totally

unconnected to the transactions in this

proceeding are not relevant to the above

Findings, they have been considered by

the Board on the issue of sanction.

Conclusions of Law

A. The Respondent is not guilty of

fraudulently procuring his certificate

of registration or its renewal, in

violation of M.G.L. c. 112, § 5(a) and

243 CMR 1.03(5)(a)(1); the prosecutor

presented no evidence to prove

fraudulent procurement, and, in any

event the Respondent’s 1987-1989 license

renewal properly cites his criminal

record and the surrender of his D.E.A.

certificate. (Ex. 1)

B. The Respondent is guilty of

conduct which places into question his

- 3la -

competence to practice medicine,

including gross misconduct in the

practice of medicine, practicing

medicine fraudulently and beyond its

authorized scope, in violation of M.G.L.

c. 112, §§ 5(c) and 61 and 243 CMR

1.03(5) (a) (3);

C. The Respondent is guilty of

practicing medicine deceitfully and

engaging in conduct which has the

capacity to deceive or defraud, in

violation of 243 CMR 1.03(5) (a) (10);

D. The Respondent is guilty of an

offense against provision of the laws of

the Commonwealth relating to the

practice of medicine, and a rule or

regulation adopted thereunder, pursuant

to M.G.L. c. 112, § 5(b) and 243 CMR

1.03(5) (a) (2), through his violations of

M.G.L. c. 112, §§ 5(c) and 61 and 243

- 32a -

CMR 1.03(5)(a)(3) and 1.03(5) (a) (10),

cited in Conclusions B and C above; and,

E. The Respondent is guilty of

conduct which undermines public

confidence in the integrity of the

medical profession and for conduct which

shows lack of good moral character.

Raymond v. Board of Registration in

Medicine, 387 Mass. 708 (1982), Levy v.

Board of Registration in Medicine, 378

Mass. 519 (1979).

Sanction and Order

As a licensed physician in the

Commonwealth, the Respondent is

entrusted with the grave responsibility

of issuing prescriptions for controlled

substances. In the Matter of John V.

Temte, M.D., Board of Registration in

Medicine, Adjudicatory Case No. 863, p.

5 (March 18, 1985) (Final Decision and

- 338 =

Order). This Board has long viewed with

the utmost seriousness any physician’s

inability or failure to faithfully

discharge this responsibility. In the

Matter of Earl Hoffman, M.D., Board of

Registration in Medicine (November 20,

1985) (Final Order).

The Respondent’s conduct in this

case constituted a flagrant abuse of the

public trust relating to controlled

substances, and such actions require the

Board to take appropriate aetion to

protect the public. Levy v. Board of

Registration in Medicine, 378 Mass. 519

(1979). The Board has indicated in

previous decisions that misconduct in

the area of prescription practice will

not be treated lightly. See, e.g., In

the Matter of Arthur Baer, M.D.,

Adjudicatory Case No. 205; In the Matter

- 348 =

of Philip I. Hershberg, M.D.,

Adjudicatory Case No. 905, affirmed sub

nom. Hershberg v. Board of Registration

in Medicine, S.J.C. 82-341 (8/11/83); In

the Matter of Norman Hassler, M.D.,

Adjudicatory Case No. 83-8; In the

Matter of Alexander T. Arthurs, M.D.,

Adjudicatory Case No. 76-76, affirmed,

sub. nom. Arthurs v. Board of

Registration in Medicine, 383 Mass. 299

(1981); In the Matter of Sylvester

August, M.D., Adjudicatory Case No. 683;

In the Matter of Thomas L. Rafferty,

M.D., Adjudicatory Case 83-9; In the

Matter of Archie Keigan, M.D.

Adjudicatory Case No. 817; and In the

Matter of Daniel R. Zoll, M.D.,

Adjudicatory Case No. 84-1.

The Board hereby revokes the

Respondent’s license to practice

- 35a -

medicine in the Commonwealth. The

Respondent is further ordered to pay a

fine in the amount of ten thousand

dollars ($10,000.00), the estimated sum

that the Respondent gained by his

fraudulent scheme, to be remitted within

fourteen days of this Final Decision and

Order.

This sanction is prompted by any one

of the Conclusions of Law lettered "B"

through "E" above, and not a combination

of any or all of then.

The Respondent -has the right to

appeal this Final Decision and Order

within 30 days, pursuant to M.G.L. ch.

30A, secs. 14 & 15, and N.G.L. GA. 112,

sec. 64. The Respondent is directed to

surrender his original certificate and

any unexpired wallet card within

- 36a -

fourteen (14) days’ receipt of this

Final Decision and Order.

LS/

Andrew G. Bodnar, M.D., J.D.

Chairman

Dated: September 7, 1988

- 37a -