COMMONWEALTH OF MASSACHUSETTS



Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Board of Registration in Medicine,

Petitioner

v. Docket No. RM-06-962

Julian Abbey, M.D.,

Respondent

Appearance for Petitioner:

Karen Rolley, Esq.

Board of Registration in Medicine
560 Harrison Avenue, G-4
Boston, Massachusetts 02118

Appearance for Respondent:

Julian Abbey, M.D., pro se

P.O. Box 490338
11 True Street
Everett, Massachusetts 02114

Administrative Magistrate:

Natalie S. Monroe, Esq.

RECOMMENDED DECISION

On November 15, 2006, the Board of Registration in Medicine (the "Board") issued a Statement of Allegations against Julian Abbey, M.D., alleging that he had practiced medicine while his ability to practice was impaired by drugs, engaged in fraudulent conduct to procure the renewal of his certificate of registration, violated G.L. c. 94C, committed boundary violations with two female patients (Patients A and B), and committed sexual misconduct with two female patients (Patients A and B). On that same date, the Board allowed a motion to impound and to use pseudonyms and referred the matter to the Division of Administrative Law Appeals.

I held a hearing at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston on ten days: June 19, 2007; June 20, 2007; June 26, 2007; June 27, 2007; July 13, 2007; July 17, 2007; August 3, 2007; August 10, 2007; August 22, 2007; and September 28, 2007. Twenty-four exhibits were entered into evidence during the hearing and twenty-one witnesses testified: Julian Abbey, Amy Allen, Christine Cameron, Christopher DeFazio, Susan Dye, Joanne Dyson, Mary Anne Fournier, Bonnie Kelly, Lee Matousek, Rita McGrath, Patient A, Patient A's mother, Patient A's sister, Patient B, Patient B's mother, Stephanie Quinton, Steven Sbardella, Carol Santo, Mary Ellen Schueler, John Spinale and Christine Warnock.

On June 20, 2007, Patient A testified on direct examination but left the hearing before she was cross examined. Despite the Board's numerous efforts to compel her to testify, Patient A never returned to the Division of Administrative Law Appeals ("DALA") to complete her testimony. Consequently, on September 28, 2007, I granted Dr. Abbey's motion to strike Patient A's testimony from the record. I did not, however, strike the exhibits that were admitted into evidence during Patient A's testimony because other witnesses also had identified and authenticated those exhibits.

The record closed on December 21, 2007 with the submission of post-hearing briefs.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. Julian Abbey was born on November 4, 1959. He graduated from New York Medical College in 1992. He has been licensed to practice medicine in Massachusetts under certificate number 80726 since February 8, 1995. His specialties are emergency medicine and anesthesiology. (Tr. II, pp. 6-7; Exhibit 7).

2. Dr. Abbey began working as a physician in the Emergency Department of the Melrose-Wakefield Hospital ("MWH") in 2001. He typically worked the 7:00 p.m. to 7:00 a.m. shift. (Tr. II, pp. 12-13, 19; Tr. III, p. 94; Exhibits 7, 22).

3. Dr. Abbey's colleagues considered him to be a highly-competent physician who treated patients appropriately and efficiently. He was personable, made eye contact with colleagues and treated staff in a professional manner. One doctor described him as the "gold standard" for night physicians in the Emergency Department. (Tr. I, pp. 24-25, 32-33; Tr. II, pp. 143-44; Tr. III, pp. 91-93; Tr. IV, pp. 43-44; Tr. X, pp. 10-11).

4. Dr. Abbey began using cocaine in 2002. At first he used it sporadically. As his marriage deteriorated, his cocaine use increased. (Tr. IV, pp. 14-15).

5. On October 25, 2002, Dr. Abbey was arraigned in Woburn District Court for one count of assault and battery on his wife. (Tr. III, pp. 35-38; Exhibit 19).

6. On May 7, 2003, the assault and battery charge against Dr. Abbey was dismissed for lack of prosecution. (Tr. III, pp. 36-37; Exhibit 19).

7. On December 4, 2003, Dr. Abbey submitted to the Board a Physician Registration Renewal Application (the "application"). The application was signed under the pains and penalties of perjury. (Exhibit 7; Tr. II, p. 17).

8. One of the questions on the application asked, "Have you been charged with any criminal offense?" Dr. Abbey answered "No" to this question. (Exhibit 7).

9. Starting in January 2004, Dr. Abbey's co-workers began noticing changes in his behavior. He wrote incorrect prescriptions, was disorganized, and had illegible handwriting. He vacillated between hyperactivity and extreme sleepiness. In the middle of a conversation, he would lose eye contact and start mumbling. (Tr. I, pp. 33-35; Tr. III, pp. 91-93; Tr. IV, pp. 45-46; Tr. X, pp. 11-12).

10. Christine Warnock, a registered nurse who worked in MWH's Emergency Department, observed that at times Dr. Abbey "sped" around the department while at other times he was exhausted and could not keep his eyes open. (Tr. I, p. 44)

11. During the spring of 2004, Dr. Abbey used cocaine on a daily basis when he was not working. (Tr. IV, p. 15; Tr. III, pp. 24, 30).

12. He sometimes "crashed" at work - i.e., became extremely tired - due to his drug use. (Tr. IV, p. 15).

13. In the spring of 2004, Dr. Christopher DeFazio, one of Dr. Abbey's supervisors, learned from staff that Dr. Abbey had fallen asleep in the doctor's dictation area (referred to as the "Bubble"). Dr. DeFazio also heard rumors that Dr. Abbey frequently was extremely fatigued and was nodding off at work. (Tr. III, pp. 92-94).

14. Dr. DeFazio asked Dr. Abbey about his conduct and Dr. Abbey told him that he was overly tired because he was having some family problems. (Tr. III, pp. 92-94).

15. Initially, Dr. DeFazio responded by reducing Dr. Abbey's work hours so he would not have to work a full twelve-hour shift. Subsequently, on May 17, 2004, Dr. DeFazio gave Dr. Abbey time off from the hospital so he could address his problems. (Tr. III, pp. 93-94; Exhibit 20).

16. Dr. DeFazio also asked Dr. Abbey to undergo drug testing. Dr. Abbey took two drug tests; both tests were negative. (Tr. III, pp. 95-97).

17. Dr. Abbey returned to work on June 4, 2004. He worked the following days in June: June 4, 5, 9, 10, 11, 16, 17 and 18. (Exhibit 20).

18. At first, Dr. Abbey seemed to have recovered from the problems he had been experiencing. However, his behavior quickly deteriorated. (Tr. III, p. 95; Exhibit 20).

19. In June 2004, Lee Matousek, a charge nurse in the Emergency Department, found Dr. Abbey asleep in the Bubble several times. When Nurse Matousek woke him up, he was disoriented and his speech was disjointed and incoherent. (Tr. X, pp. 9-10, 13-15).

20. Nurse Warnock also had to wake up Dr. Abbey at least twice in June 2004. In one instance, Dr. Abbey was standing, talking to Nurse Warnock at the nurses' station and he fell asleep in the middle of their conversation. Nurse Warnock tapped Dr. Abbey's clipboard with a pen in order to wake him up. (Tr. I, pp. 35-36).

21. Other times, Dr. Abbey sped around the Emergency Department, as if he were manic. He was disorganized and unable to complete tasks. (Tr. IV, pp. 38-39; Tr. X, pp. 43-44).

22. Although Dr. Abbey typically had neat handwriting, on more than one occasion in June 2004, his handwriting was illegible. (Tr. X, p. 15; Tr. IV, p. 46).

23. During one of his shifts in June 2004, Dr. Abbey prescribed sixty milligrams of Percocet, a narcotic pain reliever, to a patient and did not document the prescription in the patient's chart, as he was required to do. (Tr. I, pp. 39-41).

24. In the same month, Dr. Abbey ordered a gastrointestinal cocktail (a "GI cocktail") for a young girl of about nine years old. GI cocktails are not typically prescribed for young children. In addition, Dr. Abbey ordered the GI cocktail to include ten milligrams of Valium. Valium is not used in GI cocktails and it is not appropriate to give ten milligrams of Valium to a child. (Tr. I, pp. 41-42).

25. Nurse Warnock asked another nurse to have Dr. Abbey review the order for the GI cocktail and it was not given to the patient. (Tr. I, p. 42).

26. Also in June 2004, Dr. Abbey was assigned to treat a female patient who was complaining of shortness of breath. Dr. Abbey kept the patient waiting for six hours before treating her. There was no backlog in the Emergency Department or other apparent reason for the delay. (Tr. I, pp. 36-37).

27. On June 11, 2004, Dr. Abbey worked the overnight shift in the Emergency Department. (Tr. IV, pp. 49, 53-54).

28. During his shift, Dr. Abbey's handwriting was illegible. One emergency room nurse, Mary Anne Fournier, had to have his orders interpreted at least twice during the shift. (Tr. IV, pp. 45-46).

29. Nurse Fournier also observed that Dr. Abbey did not make eye contact with people and spoke very softly. He was unusually indecisive. She felt that Dr. Abbey "just was not himself." Nurse Fournier was concerned because his behavior "was so vastly different than anything" she had ever experienced with Dr. Abbey. (Tr. IV, pp. 49-50; Tr. VII, p. 10).

30. On June 11, 2004, Mary Ellen Schueler, an Emergency Medical Technician, was assigned to the 7:00 p.m. to 7:00 a.m. shift in the Emergency Department at MWH. She noticed that Dr. Abbey did not make eye contact with the staff and that his interactions with patients were "odd." (Tr. VII, pp. 8-13).

31. During his shift, Dr. Abbey repeatedly tried to have a patient, who was in severe respiratory distress, talk to him. Ms. Schueler could see that the patient could not talk because of the respiratory distress. Dr. Abbey nevertheless kept trying to get the patient to answer questions. (Tr. VII, pp. 11-13).

32. At another point in the evening, Dr. Abbey was seen outside the Emergency Department socializing with a female patient who was waiting to be transferred to a detoxification facility. (Tr. VIII, pp. 15-18; Tr. V, pp. 76-77).

33. Gretchen Wible, a clinical leader in the Emergency Department, was concerned about Dr. Abbey's ability to care for patients the evening of June 11, 2004. She therefore called Joanne Dyson, the Director of Emergency Nursing in the Emergency Department. (Tr. V, pp. 70-75).

34. Nurse Dyson arrived at the Emergency Department in the early morning of June 12, 2004. She spoke to Dr. Abbey, who looked tired and stressed. After talking with him briefly, Nurse Dyson thought Dr. Abbey may have been impaired somehow. She told Dr. Abbey not to treat any more patients. (Tr. V, pp. 77-79).

Patient A

35. Patient A is an adult female with a history of substance abuse and mental illness. In June 2004, Patient A was thirty-three years old. (Tr. III, p. 71; Tr. V, pp. 112, 127-29; Exhibit 11).

36. On June 5, 2004, Patient A came into the Emergency Department at MWH complaining of anxiety and a toothache. Dr. Abbey was assigned to treat her. He gave her prescriptions for Klonopin, an anti-anxiety drug, and Vicoprofen, a pain medication. (Exhibits 8, 10; Tr. II, pp. 57-60).

37. Dr. Abbey did not record the Vicoprofen prescription in Patient A's medical records, but instead recorded that he had prescribed Percocet. (Exhibit 10).

38. On June 9, 2004, Patient A came into the Emergency Department complaining of anxiety and sinus pain. Dr. Abbey treated Patient A. He gave her prescriptions for an antibiotic and for Diazepam, an anti-anxiety drug. He did not record the Diazepam prescription in Patient A's medical record, as he was required to do. (Exhibits 9-10; Tr. II, pp. 61-64).

39. On June 11, 2004, Patient A came to the Emergency Department seeking to be admitted to a detoxification facility in order to be treated for addiction to methadone and Klonopin. (Exhibit 10).

40. Dr. John Nadolny examined Patient A and arranged for her to be transferred to Bournewood Hospital, a substance abuse treatment facility. (Exhibits 10, 21).

41. While Patient A was waiting to be transferred to Bournewood Hospital on June 11, 2004, she and Dr. Dr. Abbey left the hospital together for a period of time. (Tr. II, pp. 56-57; Exhibits 10, 21).

42. Patient A was transferred to Bournewood Hospital for drug treatment on June 12, 2004. (Exhibit 14; Tr. III, p. 59).

43. During one of Patient A's visits to the Emergency Department in June 2004, Dr. Abbey gave Patient A his cell phone number. (Exhibit 13; Tr. III, pp. 63-65, 69, 125).

44. While she was in Bournewood Hospital, Patient A talked to Dr. Abbey on the telephone. He told her that she could stay with him when she got out of Bournewood and that he would "detox" her himself. He told her he wanted her to live with him. (Tr. III, pp. 60, 77-78).

45. On June 17, 2004, Patient A was discharged from Bournewood Hospital. (Exhibit 15).

46. From approximately June 18, 2004 to June 21, 2004, Patient A stayed with Dr. Abbey at his townhouse in Saugus. While there, Patient A and Dr. Abbey smoked crack cocaine and abused prescription drugs. (Tr. I, pp. 75-76, 79-81; Tr. III, pp. 62, 75; Tr. V, pp. 97-99, 100).

47. While Patient A was staying at his townhouse, Dr. Abbey told her that he wanted her to move in with him and that he would get a larger apartment so her children could live with them. He also promised to help her get cosmetic surgery to repair a previous injury to her nose. (Tr. III, pp. 43, 50, 63; Tr. V, pp. 98-99).

48. On June 20, 2004, Dr. Abbey wrote two prescriptions for Patient A, one for Xanax, a Schedule IV narcotic, and one for Percocet, a Schedule II narcotic. (Exhibits 10-12; Tr. I, p. 77; Tr. III, p. 50; Tr. V, pp. 109, 123-24).

49. Dr. Abbey was not treating Patient A as a patient when he wrote the two prescriptions. He wrote the prescriptions because he and Patient A were abusing prescription drugs. (Exhibits 10-12; Tr. I, p. 77; Tr. III, p. 50; Tr. V, pp. 109, 123-24).

50. On two or three occasions while Patient A was staying at the townhouse, another patient of Dr. Abbey's, Patient B, came to the townhouse and did drugs with Patient A and Dr. Abbey. (Tr. I, pp. 75-81; Tr. V, p. 116).

51. On one occasion when Patient B came to visit Dr. Abbey, Patient A answered Dr. Abbey's door wearing a t-shirt and thong underwear. (Tr. I, p. 76; Tr. II, p. 84).

52. Late in the evening of June 21, 2004, Dr. Abbey and Patient A ran out of cocaine. Dr. Abbey wanted Patient A to sell her Percocet pills in order to buy crack or cocaine. When Patient A refused, Dr. Abbey got angry and told Patient A that she had to leave. (Tr. V, pp. 100-01).

53. Patient B was in the townhouse when Dr. Abbey told Patient A to leave. Patient B drove Patient A to Melrose and dropped her off near Patient A's mother's house. (Tr. I, pp. 90-91).

54. Several hours later, Patient A's sister found Patient A in a park, sleeping on a slide. Patient A was lethargic, weak and sad; she appeared to be on drugs. (Tr. V, pp. 104-05).

55. Patient A's sister took Patient A to the Emergency Department at MWH. On the way to the hospital, Patient A told her sister that she was living with Dr. Abbey and that he had given her drugs, including either Percocet or Percodan. Patient A also said that Dr. Abbey was going to take care of her and her children, and that they were going to live together. Patient A wanted to return to Dr. Abbey's townhouse. (Tr. V. pp. 46, 49-50).

56. In June 2004, Hallmark Health Systems ("Hallmark Health") managed the Emergency Department at MWH. (Tr. II, pp. 141-42).

57. On June 24, 2004, Patient A's mother and sister spoke to Christine Cameron, Vice President of Quality at Hallmark Health, and Dr. Steven Sbardella, the chairman of emergency medicine at Hallmark Health, about Dr. Abbey's relationship with Patient A. Patient A's mother and sister told Ms. Cameron and Dr. Sbardella that Dr. Abbey was living with Patient A and writing her prescriptions for narcotics. Patient A's mother showed Ms. Cameron and Dr. Sbardella two prescription bottles for prescriptions that Dr. Abbey had written for Patient A. (Tr. II, pp. 141-42, 146-50; Tr. III, pp. 113, 115-16).

58. After an investigation, on June 24, 2004, Ms. Cameron filed a Disciplinary Action Report with the Board. MWH also suspended Dr. Abbey's privileges at the hospital. (Exhibits 22, 23; Tr. II, p. 13; Tr. III, pp. 126-27).

Patient B

59. Patient B is an adult female with a history of substance abuse and mental illness. In June 2004, Patient B was twenty-nine years old. (Tr. I, pp. 102-03).

60. On June 10, 2004, Patient B's friend, Amy Allen, brought Patient B to the Emergency Department at MWH for treatment. Patient B was making irrational decisions, was speaking quickly and appeared to be in a manic state. Patient B had suicidal ideations; she thought she was having a nervous breakdown. (Tr. I, p. 54; Tr. II, pp. 77-78, 87; Exhibit 4).

61. Dr. Sbardella examined Patient B and made arrangements for her to be transferred to McLean's Hospital. Because no beds were available immediately at McLean's, however, Patient B could not be transferred until the morning of June 11, 2004. (Exhibit 4).

62. While Patient B was waiting to be transferred to McLean's, Dr. Abbey was one of her treating physicians in the Emergency Department. (Tr. II, pp. 168-69; Exhibit 4).

63. Dr. Abbey treated Patient B with Trazodone, an antipsychotic medication, and with Klonopin, an anti-anxiety drug. (Tr. II, pp. 168-69; Exhibit 4).

64. When he was treating Patient B, he flirted with her. He told her she was beautiful and that she had a "hot body." He made a comment about her breasts. (Tr. I, pp. 59-61; Tr. II, p. 79).

65. During the evening of June 10, 2004 or early morning of June 11, 2004, Dr. Abbey wrote his cell phone number on a page of a magazine. Dr. Abbey gave Patient B the magazine and told her to look at the page where he had written his telephone number. She opened up the magazine and saw Dr. Abbey's telephone number. (Tr. I, pp. 61-63; Tr. III, p. 7; Exhibit 3).

66. Patient B remained in the Emergency Department until the morning of June 11, 2004, when she was transferred to McLean's Hospital. (Tr. 1, pp. 55, 63-64).

67. Patient B was discharged from McLean's in mid-June 2004. After Patient B left McLean's, she telephoned Dr. Abbey, who invited her to come to his townhouse in Saugus. (Tr. I, pp. 64-68).

68. Patient B went to Dr. Abbey's townhouse several times during June and July 2004. While there, the two smoked crack cocaine, took Valium and drank vodka. Dr. Abbey supplied the cocaine, Valium and vodka. He kept a large bottle of Valium hidden in a planter in his living room. (Tr. I, pp. 69-72, 75).

69. On at least one occasion, Patient B was with Dr. Abbey when he bought crack cocaine. (Tr. I, p. 71).

70. On several occasions when she was visiting Dr. Abbey, the two kissed and engaged in oral sex. (Tr. I, pp. 85-86).

71. Other times when she visited, she and Dr. Abbey spent time with his two children, taking them shopping, to the pool and to the park. (Tr. I, pp. 65, 68, 72-73, 83-84).

72. In late June 2004, Patient B's friend, Ms. Allen, telephoned MWH and told Mo Akbarian, MWH's medical director, that an emergency room doctor named "Julian" was having a relationship with Patient B. She told Dr. Akbarian that she felt the doctor was a predator who was "up to no good." She referred to Dr. Abbey as "Julian" because she did not know his last name. (Tr. II, pp. 13, 80-81; Tr. III, p. 103).

73. When Patient B found out that Ms. Allen had reported Dr. Abbey to MWH, she was extremely upset and unhappy; she did not want Ms. Allen to report him. (Tr. II, pp. 82-84).

74. Patient B ended her relationship with Dr. Abbey in early July 2004. Patient B felt dirty about the relationship and also felt bad that she and Dr. Abbey were doing drugs in front of Dr. Abbey's children. She also felt that Dr. Abbey was acting strangely. (Tr. I, pp. 91, 93).

CONCLUSION AND RECOMMENDATION

The Board has met its burden of proving by a preponderance of the evidence that Dr. Abbey (1) fraudulently procured the renewal of his certificate of registration; (2) practiced medicine while his ability to do so was impaired by drugs; (3) violated G.L. c. 94C; (4) committed boundary violations with Patient A; and (5) committed boundary violations and sexual misconduct with Patient B. The Board did not meet its burden of proof regarding its claim that Dr. Abbey committed sexual misconduct with Patient A.

Fraudulent Procurement of Renewal Certificate

In Massachusetts, a physician must renew his certificate of registration every two years. See G.L. c. 112, § 2. A physician who fraudulently procures his certificate of registration, including the renewal of his certificate, is subject to discipline by the Board. Id. See also 243 CMR 1.03(5)(a)(1). "[F]raudulent intent may be shown by proof that a party knowingly made a false statement and that the subject of that statement was susceptible of actual knowledge. No further proof of actual intent to deceive is required." Fisch v. Board of Registration in Med., 437 Mass. 128, 139, 769 N.E.2d 1221, 1230 (2002) (citation omitted).

On December 4, 2003, Dr. Abbey submitted to the Board a Physician Registration Renewal Application. Question 17 on the application asked, "Have you been charged with any criminal offense?" The relevant time period for the question was November 21, 2001 to November 21, 2003. See Exhibit 7. Dr. Abbey answered "No" to Question 17. This answer was false because, on October 25, 2002, Dr. Abbey had been charged with one count of assault and battery. Moreover, Dr. Abbey knew that he had been charged with assault and battery in October of 2002. Therefore, Dr. Abbey fraudulently procured the 2003 renewal of his certificate of registration. Fisch, 437 Mass. at 139, 769 N.E.2d at 1230.

I did not find credible Dr. Abbey's testimony that he was not sure that he had been charged with assault and battery. After observing his demeanor and listening to him testify, I do not believe Dr. Abbey was being truthful when he stated he was unclear about whether or not he had been charged with a crime in 2002. Moreover, Dr. Abbey gave other testimony that demonstrated he was well aware that he had been charged with assault and battery in 2002. He testified, for example, that he had been charged with a crime in connection with an altercation with his wife; that he had gone to court with his attorney in connection with the criminal charge; that he felt he was the victim of a "false arrest;" and that the charge ultimately was dismissed. See Tr. III, pp. 36-38.

Finally, the fact that the charge was dismissed did not mean that Dr. Abbey could answer Question 17 in the negative. Question 17 asked whether Dr. Abbey had been charged with a crime; it did not ask whether he had been convicted of one.

Practicing Medicine While Impaired by Drugs

The Board has the authority to discipline a physician who has practiced medicine "while the ability to practice is impaired by alcohol, drugs, physical disability or mental incapacity." G.L. c. 112, § 5(d). See also 243 CMR 1.03(5)(a)(4). After carefully weighing all of the evidence, I conclude that, between January and June 2004, Dr. Abbey practiced medicine while his ability to do so was impaired by drugs.

For most of his tenure in the Emergency Department, Dr. Abbey was held in high esteem by his co-workers. He treated patients appropriately and efficiently. He was professional and personable with hospital staff. One doctor described him as the "gold standard" for night physicians in the Emergency Department.

Dr. Abbey began using cocaine in 2002. As his relationship with his wife deteriorated, his cocaine use increased. By the spring of 2004, he was using cocaine almost every day.

Beginning in January 2004, moreover, co-workers began noticing changes in Dr. Abbey's behavior. He wrote incorrect prescriptions, failed to record prescriptions in patient medical records and, on at least two occasions, ordered inappropriate medical treatments. He vacillated between hyperactivity and extreme sleepiness. He was disorganized and his handwriting sometimes was illegible. In the middle of a conversation, he would lose eye contact and start mumbling. He fell asleep in the Bubble, which was very unlike him. Except for a brief period of improvement in the very beginning of June 2004, this behavior continued until Hallmark Health suspended Dr. Abbey's privileges at MWH on June 24, 2004.

Dr. Abbey presents two defenses. First, Dr. Abbey attributes his sleepiness and erratic behavior to marital and family difficulties. He testified, for example, that he frequently had to drive to Salem, New Hampshire for court hearings and to pick up his children for visitation. Having observed his demeanor while he testified, I did not find this testimony credible. Moreover, Dr. Abbey admitted to Board investigators that he was using cocaine nearly every day in the spring of 2004 and that his drug use caused him to "crash" and to fall asleep at work.

Dr. Abbey also argues that he never harmed any patients, and that no patients under his care ever received inappropriate medical treatment. It is irrelevant whether Dr. Abbey's drug use resulted in harm to his patients. Chapter 112 of the Massachusetts General Laws prohibits doctors from practicing medicine while impaired by drugs. Under the statute, the Board is not required to wait until a physician's drug use leads to patient harm. See G.L. c. 112, § 5(d).

In any event, patients did suffer. As discussed below, Dr. Abbey's drug use negatively impacted his treatment of Patient A and Patient B. Another patient had to wait six hours for treatment. Moreover, Dr. Abbey is fortunate that more patients were not hurt. But for a nurse's intervention, for example, Dr. Abbey would have given a GI cocktail to a young girl. GI cocktails generally are not given to children. In addition, Dr. Abbey ordered cocktail to include ten milligrams of Valium. Valium is not used in GI cocktails and it is not appropriate to give ten milligrams of Valium to a child.

In sum, the Board has met its burden of proving that Dr. Abbey practiced medicine "while the ability to practice [was] impaired by … drugs …." G.L. c. 112, § 5(d). See also 243 CMR 1.03(5)(a)(4).

Violation of G.L. c. 94C, § 9(d)

Chapter 94C of the Massachusetts General Laws provides as follows:
Every physician … shall, in the course of a professional practice, keep and maintain records … which shall contain the names and quantities of any controlled substances in Schedule I, II or III received by such practitioner; the name and address of the patient to whom such controlled substance is administered or dispensed; the name, dosage and strength per dosage unit of such controlled substance; and the date of such administration or dispensing. G.L. c. 94C, § 9(d).

On June 20, 2004, Dr. Abbey wrote Patient A a prescription for Percocet, which is a Schedule II controlled substance. Dr. Abbey did not record the prescription in Patient A's medical records. He therefore violated G.L. c. 94C, § 9(d).

In its closing brief, the Board argues that Dr. Abbey's failure to record prescriptions in patient medical records also violated 243 CMR 2.07(13)(a) and the Board's Prescribing Policies and Guidelines. The Board did not include these charges in its Statement of Allegations. As a result, the charges are not properly before me.

Boundary Violations and Sexual Misconduct

In Massachusetts, physicians may be disciplined for "misconduct in the practice of medicine." 243 CMR 1.03(5)(a)(18). Massachusetts law also prohibits doctors from engaging in conduct which places into "question the physician's competence to practice medicine," including gross misconduct in the practice of medicine. G.L. c. 112, § 5(c); 243 CMR 1.03(5)(a)(3). Committing boundary violations with a patient may constitute misconduct and/or gross misconduct in the practice of medicine. See, e.g., Board of Registration in Med. v. Edward Chapman, M.D., RM-01-566 (DALA dec. 4/23/02; Fin. Dec. & Order 7/18/03) (misconduct); Board of Registration in Med. v. Nancy Belle Collet, M.D., RM-98-795 (DALA dec. 12/24/98; Final Dec. & Order 2/17/99) (gross misconduct). Similarly, having a sexual relationship with a patient may rise to the level of misconduct and/or gross misconduct in the practice of medicine. See, e.g., Weinberg v. Board of Registration in Med., 443 Mass. 679, 686, 824 N.E.2d 38, 44 (2005) (misconduct); Ramirez v. Board of Registration in Med., 441 Mass. 479, 484-85, 806 N.E.2d 410, 414 (2004) (gross misconduct).

In its Statement of Allegations, the Board alleges that Dr. Abbey committed boundary violations and sexual misconduct with two patients, Patients A and B. The Board further alleges that Dr. Abbey's conduct constitutes both "misconduct in the practice of medicine" and "gross misconduct in the practice of medicine." I conclude that Dr. Abbey committed boundary violations with Patient A, but that the Board did not prove any sexual misconduct. I further conclude that Dr. Abbey committed both sexual misconduct and boundary violations with Patient B. Finally, I conclude that Dr. Abbey's conduct rises to the level of both misconduct and gross misconduct in the practice of medicine.

Patient A

The evidence in this case establishes that Dr. Abbey committed serious boundary violations with respect to Patient A. In June 2004, Patient A was a thirty-three year old woman with a history of substance abuse and mental illness. After treating her in the Emergency Department at MWH, Dr. Abbey gave Patient A his personal cell phone number. When Patient A telephoned him from a drug rehabilitation facility, he invited her to stay with him at his townhouse in Saugus. He told her he wanted her to live with him and that he would "detox" her himself.

After Patient A left Bournewood Hospital, she stayed with Dr. Abbey at his townhouse from approximately June 18, 2004 to June 21, 2004. While she was staying with him, Dr. Abbey told her that he wanted her to move in with him and that he would get a larger apartment so her children could live with them. He also promised to help her get cosmetic surgery to repair a previous injury to her nose. On at least one occasion when Dr. Abbey was at home, Patient A was walking around the townhouse wearing nothing but a t-shirt and thong underwear.

In addition, Patient A and Dr. Abbey smoked crack cocaine and took other drugs together. He wrote her prescriptions for Xanax and Percocet so they could continue doing drugs. When the cocaine ran out and Patient A refused to sell her Percocet to buy more cocaine, Dr. Abbey kicked Patient A out of his home.

As the Board has stated previously, "[a] physician's professional relationship is compromised when he fails to maintain proper objectivity and distance from his patients .... A physician must take all steps necessary to avoid crossing the boundaries which separate reasonable and appropriate professional conduct from unacceptable personal relations." Board of Registration in Med. v. Robert Ferrell, M.D., No. 89-23-TR (BRM Final Dec. & Order 7/18/90). Dr. Abbey crossed professional boundaries when he initiated a personal relationship with Patient A; invited her to stay with him in his home; and made personal promises, including promising to "detox" her and to get reconstructive surgery for her nose. He committed further boundary violations when he supplied Patient A with cocaine, smoked crack cocaine and took other drugs with her, and wrote her prescriptions for Xanax and Percocet so the two of them could continue doing drugs.

In Hellman v. Board of Registration in Medicine, 404 Mass. 800, 537 N.E.2d 150 (1989), the Supreme Judicial Court ("SJC") defined the word "misconduct" as follows:

"Misconduct," in general, is improper conduct or wrong behavior, but as used in speech and in law it implies that the conduct complained of was willed and intentional. It is more than that conduct which comes about by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or lack of concern for one's conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor. 404 Mass. at 804, 537 N.E.2d at 152 (internal quotations and citation omitted). The boundary violations described above fall within the meaning of "misconduct in the practice of medicine." Id. See also Board of Registration in Med. v. Edward Chapman, M.D., RM-01-566 (DALA dec. 4/23/02; Fin. Dec. & Order 7/18/03).

Dr. Abbey's conduct also rises to the level of gross misconduct in the practice of medicine. See, e.g., Hellman, 404 Mass. at 804, 537 N.E.2d at 152 ("gross misconduct" refers to conduct that is "flagrant and extreme…. It is an act or omission respecting legal duty of an aggravated character…. It is a heedless and palpable violation of legal duty respecting the rights of others") (citations omitted). Dr. Abbey's behavior is especially egregious because he knew from her medical records that Patient A suffered from substance abuse and mental illness. See, e.g., Board of Registration in Med. v. Nancy Belle Collet, M.D., RM-98-795 (DALA dec. 12/24/98; Final Dec. & Order 2/17/99) (by "drinking with Patient A, an alcoholic and drug addict [and by] encouraging Patients A and B to become romantically involved," the respondent committed gross misconduct in the practice of medicine).

Patient B

The Board has established both that Dr. Abbey committed boundary violations and sexual misconduct with respect to Patient B. In June 2004, Patient B was a twenty-nine year old woman with a history of substance abuse and mental illness. On June 10, 2004, Patient B came into the Emergency Department at MWH because she thought she was having a nervous breakdown; she was acting irrationally and had thoughts of hurting herself. While treating Patient B that evening, Dr. Abbey flirted with her, told her she had a "hot body," commented on her breasts, and gave her his personal cell phone number.

Almost immediately after Patient B left McLean's, moreover, Dr. Abbey invited her to his townhouse. She visited him, at his invitation, several times between mid-June and early July 2004. While there, she and Dr. Abbey smoked crack cocaine and took Valium; he supplied both drugs. On several occasions when she was visiting him, the two kissed and engaged in oral sex. She and Dr. Abbey also spent time with his children, shopping, going to the park and going to the pool.

Dr. Abbey committed boundary violations when he flirted with Patient B, gave her his cell phone number and entered into a personal, social relationship with her. He committed further boundary violations when he supplied her with cocaine and Valium, and when he did the drugs with her. Finally, he crossed professional boundaries by kissing her and engaging in oral sex with her. Dr. Abbey's conduct constitutes both misconduct and gross misconduct in the practice of medicine. See, e.g., Board of Registration in Med. v. Edward Chapman, M.D., RM-01-566 (DALA dec. 4/23/02; Fin. Dec. & Order 7/18/03) (misconduct); Board of Registration in Med. v. Nancy Belle Collet, M.D., RM-98-795 (DALA dec. 12/24/98; Final Dec. & Order 2/17/99).

Finally, the Board has established that Dr. Abbey committed sexual misconduct with Patient B. Specifically, he kissed Patient B and engaged in oral sex with her on several occasions. This conduct rises to the level of both misconduct and gross misconduct in the practice of medicine. See, e.g., Hellman, 404 Mass. at 804, 537 N.E.2d at 152; Weinberg, 443 Mass. at 686, 824 N.E.2d at 44; Ramirez, 441 Mass. at 484-85, 806 N.E.2d at 414.

Lack of Good Moral Character and Conduct that Undermines Public Confidence

In Levy v. Board of Registration and Discipline in Medicine, 378 Mass. 519, 932 N.E.2d 1036 (1979), the SJC has recognized that the practice of medicine, because of [its] peculiar relation to the public, require[s] that those holding licenses must have the important qualification of good character....[and] the public has the right to expect the highest degree of integrity from members of the medical profession. 378 Mass. at 528, 932 N.E.2d at 1042 (citations omitted). The Board may discipline doctors who lack good moral character or who undermine the public confidence in the integrity of the medical profession. Id.; Raymond v. Board of Registration in Med., 387 Mass. 708, 443 N.E.2d 391 (1982).

In this case, Dr. Abbey preyed upon Patients A and B, two women who needed his professional help. Dr. Abbey knew that Patient A was struggling with serious drug addictions, yet he encouraged her to leave the substance abuse treatment facility she was in. Once she left the facility, moreover, he invited Patient A to live with him and then he supplied her with drugs. Patient B appeared at the Emergency Department in a manic state with suicidal ideations; he responded by flirting with her, commenting on her breasts and giving her his phone number. Almost immediately after she was released from McLean's, moreover, Dr. Abbey entered into a social relationship with her, which included doing drugs and engaging in sexual conduct. In short, Dr. Abbey's behavior towards Patients A and B demonstrates a lack of good moral character and undermines the public confidence in the integrity of the medical profession. Levy, 378 Mass. at 528, 932 N.E.2d at 1036; Raymond, 387 Mass. at 708, 443 N.E.2d at 391.

In its closing brief, the Board also argues that Dr. Abbey demonstrated a lack of good moral character in two other ways. First, the Board contends that Dr. Abbey wrote prescriptions for patients who had not registered in the Emergency Department and that he did not record those prescriptions in the patients' medical records. These claims were not in the Statement of Allegations. The closest allegation in the Statement of Allegation reads:

The Respondent had two prescription pads. One is the hospital pad that is preprinted with his name, hospital, address and DEA number. The other is his personal prescription pad with his home address, personal cell number and DEA number, which he used to prescribe for friends and family. Statement of Allegations at ¶ 31.

This is not sufficient to put Dr. Abbey on notice that the Board intended to discipline him for writing prescriptions for patients who were not registered in the Emergency Department and for failing to record those prescriptions in the patients' medical records. Consequently, this claim is not properly before me.

Second, the Board contends that when the Board interviewed Dr. Abbey and when he testified at DALA, he was untruthful and repeatedly changed his "story." As with the previous claim, these charges were not in the Board's Statement of Allegations and therefore they are not properly a part of this proceeding.

Based on the foregoing, I recommend that the Board impose appropriate discipline on Dr. Abbey.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Natalie S. Monroe
Administrative Magistrate

Date: 3/7/08


This information is provided by the Division of Administrative Law Appeals .