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SJC-12242

   MICHAEL L. LANGAN   vs.   BOARD OF REGISTRATION IN MEDICINE.


                          June 13, 2017.


Board of Registration in Medicine. Doctor, License to practice
     medicine. Practice, Civil, Action in nature of certiorari.


     Michael L. Langan appeals from a judgment of the county
court denying his petition for relief in the nature of
certiorari from a decision of the Board of Registration in
Medicine (board). We affirm.

     Background. Langan is a board-certified physician in
geriatrics and internal medicine. In 2008, after he had tested
positive for various controlled substances, he and the board
entered into a letter of agreement, under which he agreed to
certain conditions in order to continue practicing medicine,
including refraining from the use of alcohol and controlled
substances without a prescription and submitting to substance
use monitoring by Massachusetts Physician Health Services (PHS).
The letter of agreement provided that violating its terms would
"constitute sufficient grounds for the immediate suspension of
[Langan's] license," and that Langan had a right to an
adjudicatory hearing as to any violation found by the board.

     After Langan entered into the letter of agreement, PHS
reported three positive tests, at low levels, for ethyl
glucuronide (EtG) and ethyl sulfate (EtS), two alcohol
biomarkers. The board took no action at that time. In June and
July, 2011, however, Langan tested positive for the same
biomarkers, at higher levels.1 As a result of these positive

    1
       In addition, in July, 2011, a test for a different
biomarker, phosphatidylethanol, came back positive. This test,
                                                                   2


tests, PHS requested that Langan undergo an inpatient
evaluation, and the board asked him to enter into a voluntary
agreement not to practice pending completion of such an
evaluation. Langan refused at first, causing the board to find
him in violation of the letter of agreement. Langan then
underwent the inpatient evaluation in September, 2011.

     On February 1, 2012, Langan, represented by counsel, signed
an addendum to his letter of agreement requiring, in particular,
that he "participate in a minimum of three (3) 12-step meetings
per week" and "submit proof of said participation to PHS." In
October, 2012, PHS reported that Langan had misrepresented
attending meetings. In November, 2012, Langan again tested
positive for EtS and EtG. Langan entered into a voluntary
agreement not to practice and was asked to produce documentation
that he had attended all required meetings. He did not do so,
and in February, 2013, the board determined, based on all the
documentation before it, that Langan was in violation of his
letter of agreement for the second time. The board therefore
suspended his license. The 2013 order of suspension provided
that any stay of the suspension would be contingent on an
independent psychiatric examination, a worksite monitoring plan,
and a substance abuse monitoring plan. Langan did not exercise
his right to obtain review of the 2013 order.

     In 2014, Langan petitioned the board for a stay of his
suspension. By that time, he had undergone a psychiatric
examination by a board-approved evaluator, who provided a
favorable evaluation. However, he failed to submit the
necessary worksite and substance use monitoring plans. The
board denied Langan's petition, reaffirmed his suspension, and
stated that he could file a new petition "upon submission of
proof of abstinence from alcohol and controlled substances for
twelve consecutive months." Langan filed a petition in the
county court seeking relief in the nature of certiorari under
G. L. c. 249, § 4.2 See Hoffer v. Board of Registration in Med.,


however, was tainted by a chain of custody issue and played no
part in the board's decisions.
    2
       Langan also requested relief under G. L. c. 211, § 3.
Such relief was denied on the ground that Langan had an adequate
remedy under G. L. c. 249, § 4. In addition, our
superintendence power under G. L. c. 211, § 3, extends only to
the lower courts of the Commonwealth, and not to executive
branch bodies such as the board.
                                                                   3


461 Mass. 451, 458 (2012) (G. L. c. 249, § 4, provides avenue of
relief from board decision not to reinstate license). That
petition was dismissed as untimely, having been filed more than
sixty days after the board's decision. Langan did not appeal
from the judgment of dismissal.

     Finally, on January 15, 2015, Langan again petitioned the
board for a stay of his suspension. He did not include any
records, such as test results, demonstrating that he had
abstained from alcohol and controlled substances. He also did
not include worksite and substance use monitoring plans, as
required by the 2013 order as a condition of reinstatement. The
board again denied Langan's petition and reaffirmed the
suspension of his medical license. Langan timely filed his
petition for relief under G. L. c. 249, § 4, which was denied by
a single justice of this court.3 Langan now appeals from that
judgment.

     Discussion. The board's decision denying Langan's
reinstatement to his chosen profession is reviewable under G. L.
c. 249, § 4, the certiorari statute. Hoffer, 461 Mass. at 458.
Certiorari is a "limited procedure reserved for correction of
substantial errors of law apparent on the record created before
a judicial or quasi judicial tribunal." Indeck v. Clients' Sec.
Bd., 450 Mass. 379, 385 (2008), quoting School Comm. of Hudson
v. Board of Educ., 448 Mass. 565, 575-576 (2007). "[T]he proper
standard of review under the certiorari statute is flexible and
case specific, but . . . as with review under G. L. c. 30A,
§ 14, the disposition must ultimately turn on whether the
agency's decision was arbitrary and capricious, unsupported by
substantial evidence, or otherwise an error of law." Hoffer,
supra at 458 n.9. Moreover, "[t]he board has broad authority to
regulate the conduct of the medical profession, . . . which
authority includes its ability to sanction physicians for
conduct which undermines public confidence in the integrity of
the medical profession." Sugarman v. Board of Registration in
Med., 422 Mass. 338, 342 (1996), citing Kvitka v. Board of
Registration in Med., 407 Mass. 140, cert. denied, 498 U.S. 823


    3
       In connection with the proceedings before her, the single
justice encouraged the parties to settle on terms of
reinstatement and gave them a sixty-day period to attempt to do
so. Contrary to Langan's suggestion, the single justice did not
and could not "order" the parties to settle. When the parties
were unable to reach an agreement, she quite properly proceeded
to rule on Langan's petition.
                                                                   4


(1990). In reviewing the board's decision, we defer to its
expertise. Sugarman, supra at 347.

     As Langan made no timely challenge to the 2013 order
suspending his license or to the 2014 order denying a stay of
the suspension, the sole issue before the single justice was the
propriety of the board's 2015 order. In that order, the board
found that Langan failed to fulfil the conditions of
reinstatement expressly set forth in the 2013 and 2014 orders:
submission of a worksite monitoring plan, submission of a
substance use monitoring plan, and proof of abstinence from
alcohol and controlled substances for twelve consecutive months.
As a result, the board concluded that Langan had not
demonstrated his sobriety and fitness to practice medicine. The
board's findings are amply supported by the evidence, and its
2015 order denying a stay and reaffirming the suspension is well
within its broad discretion to regulate the conduct of the
medical profession.

     Langan's arguments on appeal are unavailing. Langan
alleges that the chain of custody error in a July, 2011,
phosphatidylethanol (PEth) test was the result of deliberate
fraud.4 See note 1, supra. That is a serious and disturbing
charge, but one that is not substantiated in the record.
Moreover, the PEth test results formed no part of the basis for
any of the board's decisions in this matter. Langan was
suspended for misrepresenting his attendance at twelve-step
support group meetings, not for failing the PEth or any other
test, and he was denied reinstatement for failing to fulfil the
conditions thereof.

     Langan also argues that his rights under the establishment
clause of the First Amendment to the United States Constitution
were violated by the requirement that he attend twelve-step
support group meetings. Even assuming that such support groups
are religiously based, his argument fails for several reasons.
Langan voluntarily agreed to attend meetings when he signed the
2012 addendum to the letter of agreement; the requirement was
not unilaterally imposed by the board. Langan did not timely
challenge the suspension. Moreover, the board's 2015 decision
makes it clear that Langan would have been permitted to attend a

    4
       On a related point, Langan argues that the board violated
G. L. c. 112, § 5, by failing to investigate his charges of
fraud at PHS. He did not raise this issue before the single
justice, and in any event, the board's action or inaction on any
other complaint provides him with no defense.
                                                                   5


secular support group if he had so requested. Finally, and most
importantly, the 2015 decision, which is the only one properly
before us, was not based on Langan's failure to attend meetings,
but on his failure to fulfil the conditions of reinstatement.

     Because the board committed no error in denying Langan's
petition to stay his suspension, the single justice properly
denied relief in the nature of certiorari.5

                                   Judgment affirmed.

     Michael L. Langan, pro se.
     Bryan F. Bertram, Assistant Attorney General, for the Board
of Registration of Medicine.




     5
       We recommend that the board provide Langan with model
worksite and substance use monitoring plans if it has not
already done so.
