COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Board of Registration in Medicine,

Petitioner

v. Docket No. RM-07-143

Marc Freedman, M.D.,

Respondent

Appearance for Petitioner:

Karen Rolley, Esq.

Board of Registration in Medicine
560 Harrison Ave., Suite G-4
Boston, MA 02118

Appearance for Respondent:

David M. Gould, Esq.
Sean E. Capplis, Esq.

Flicksman & Conley, LLP
98 North Washington St., Suite 500
Boston, MA 02114

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

RECOMMENDED DECISION

On March 21, 2007, the Board of Registration in Medicine ("Board") issued a Statement of Allegations against Marc Freedman, M.D. alleging that he fraudulently obtained his license to practice medicine by providing false information to the Board (Ex. 1). On that same date, the Board referred the matter to the Division of Administrative Law Appeals. On April 6, 2007, Dr. Freedman filed an answer to the Statement of Allegations (Ex. 2).

On November 19, 2007, I held a hearing at the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted 13 exhibits at the hearing. Rose Foss, Anne Vacca and Dr. Freedman testified. There is a one-volume transcript of the hearing.

On November 29, 2007, the Respondent offered a copy of his schedule for November 3, 2003 and an affidavit of Attorney Mario Patalano. On December 6, 2007, the Board moved to keep the record open for the presentation of rebuttal evidence. No such evidence was received. The record closed on December 14, 2007 with the submission of post-hearing memoranda.

Post-hearing, I marked Dr. Freedman's schedule for November 3, 2003 as Ex. 14 and the affidavit of Attorney Patalano as Ex. 15.

Findings of Fact

(A T followed by a number refers to the transcript and page.)

1. Marc Freedman was born on January 23, 1958. He is a 1984 graduate of State University of Florida College of Medicine. He has been licensed to practice medicine in the Commonwealth of Massachusetts under registration number 71001 since 1989. He is board-certified in obstetrics and gynecology. He maintains a private practice in Burlington and has privileges at Winchester Hospital (Exs. 1 and 2).

2. During the year 2003, Dr. Freedman was going through a very difficult divorce and was trying to secure custody of his children. At least monthly during that year, Dr. Freedman was in Middlesex Probate Court dealing with issues relating to the divorce and custody (T-32 - 33, 45).

3. Up through December 2003, Dr. Freedman had never been called to the police station. He had never been fingerprinted (T-34).

4. On Saturday, June 14, 2003 at 10:00 a.m., Dr. Freedman went to pick up his children. They got into his car and then his wife, Karen Freedman, came out of the house yelling at him. She threw a video cassette containing the movie, "Liar, Liar" into the car. Dr. Freedman threw the box out of the car and drove off with his children (T-35).

5. Several hours later, a police officer responded to the home where Ms. Freedman said she wanted to get an emergency restraining order against her husband. She told the police officer that her husband had grabbed her by the throat and threatened to kill her. The officer secured an emergency restraining order (Ex. 13).

6. On July 1, 2003, there was a probable cause hearing before a Clerk Magistrate at Woburn District Court regarding an application for complaint filed by the Reading Police Department against Dr. Freedman for an assault and battery, as alleged by Ms. Freedman (Exs. 3 and 7).

7. Dr. Freedman was in South Carolina on vacation at the time but was represented by Attorney Mario Patalano, an attorney secured by Dr. Freedman's divorce attorney (Ex. 7 and T-35, 54).

8. The Clerk Magistrate found probable cause to issue a complaint against Dr. Freedman and scheduled an arraignment for September 8, 2003 (Exs. 3, 4 and 7).

9. Dr. Freedman was never served with a summons to appear for arraignment because he moved from his residence in Reading (Ex. 7).

10. Dr. Freedman did not understand at that time that a criminal complaint had been issued (T-36).

11. On September 4, 2003, Attorney Patalano filed an appearance on behalf of Dr. Freedman. The appearance states, "I've discussed this matter with my client and will inform him of the next scheduled proceeding" (Ex. 6).

12. Dr. Freedman was not present at the September 8, 2003 arraignment (Ex. 7 and T-36).

13. On November 3, 2003, Attorney Patalano appeared in Woburn District Court to represent Dr. Freedman at a pre-trial conference on the criminal complaint (Ex. 15).

14. Dr. Freedman was not present in court on that day (Ex. 14).

15. Physicians in Massachusetts are required to renew their licenses with the Board every two years. The Board sends out the renewal application accompanied by instructions (T-16).

16. The renewal application contains the following language, underlined and in bold print:

Questions 14 through 22 refer to the period since you signed your last renewal application. Check either YES or NO to each question. Provide details on Form R for all YES answers…
Refer to Instructions for additional information and definitions.
ALL questions must be answered. Do not answer NA or the form will be incomplete and delay your renewal (Ex. 8).

17. The instructions accompanying the renewal state, for question 17: "Being 'charged with a criminal offense' includes being arrested, arraigned or indicted, even if the charges against you were subsequently dropped, dismissed or otherwise discharged…" (Ex. 9).

18. On December 20, 2003, Dr. Freedman responded to the questions on his renewal application and signed his name under the penalties of perjury. He checked off "no" to question 17, "Have you been charged with any criminal offense?" (Ex. 8).

19. When Dr. Freedman completed his renewal application, he did not know that there was a criminal matter pending against him (T-34).

20. Dr. Freedman filed his renewal application with the Board on January 2, 2004 (Ex. 8).

21. In February 2004, Dr. Freedman learned that there was a criminal charge pending against him as a result of the incident on June 14, 2003. He understood the charge was criminal as a result of being informed about a scheduled court hearing for March 1, 2004 (T-37 - 38).

22. Dr. Freedman was present in Woburn District Court on March 1, 2004 with Attorney Patalano. A trial date was set for June 23, 2004 (Ex. 11, T-38, 59).

23. Except for an appearance sometime in the past for a motor vehicle violation, Dr. Freedman had never before been in Woburn District Court (T-59).

24. On December 9, 2004, Dr Freedman signed a pre-trial probation order with the period of probation ending on June 5, 2005 (Ex. 12, T-56 - 57).

25. Ultimately, the criminal charges were dismissed (Ex. 7).

26. In August 2005, the Board received a consumer complaint against Dr. Freedman. Anne Vacca, an Investigator for the Board, was assigned to the case. As part of her investigation, she obtained documents from the Woburn District Court about the charge of assault and battery (T-25).

27. In September 2005, Ms. Vacca met with Dr. Freedman, Attorney David Gould representing Dr. Freedman, Board counsel Karen Rolley, and a second Board investigator. Dr. Freedman was asked a number of questions about his renewal application of December 20, 2003 (T-29).

28. Dr. Freedman told the Board staff that with the knowledge that he had at the time he filled out the December 2003 renewal application, he answered the questions truthfully (T-29).

29. Dr. Freedman told the Board staff that he never had any intention to deceive anybody when he answered question 17 "no" in his December 2003 renewal application (T-30).

30. Dr. Freedman also told the Board staff that he thought the assault and battery was a misdemeanor and that his divorce attorney had recommended that he secure other counsel for the assault and battery charge (T-26 - 27).

31. On January 9, 2006, Dr. Freedman filed his renewal application with the Board. He responded "yes" to question 17(a), "Have you ever been charged with any criminal offense during this time period?" He answered "no" to question 17(b), "Are there any criminal charges pending against you today?" He answered "yes" to question 17(c), "Have any criminal offenses/charges against you been resolved during this time period?" (Ex. 13).

32. On January 19, 2006, Rose Foss, the Director of Licensing at the Board, wrote to Dr. Freedman asking for copies of certain documents regarding the criminal proceeding (Ex. 13).

33. Dr. Freedman provided the requested information (Ex. 13 and T-22).

34. As a matter of routine, since there was an affirmative answer to question 17, Ms. Foss forwarded the information to the Board's enforcement division (T-18).

Conclusion and Recommendation

The Board of Registration in Medicine has not met its burden of showing that Dr. Freedman fraudulently procured his renewal registration when he filed his renewal application on January 2, 2004.

There is no dispute that Dr. Freedman incorrectly answered in the negative to question 17 that asked, "Have you been charged with any criminal offense?" The fact that Dr. Freedman made a mistake does not equate with fraud. The Board has not shown that he knowingly made a false statement.

Dr. Freedman testified credibly that when he completed his renewal application in December 2003, he was not aware that there was any criminal matter pending against him; he believed he had answered question 17 accurately. I had the opportunity to observe his demeanor and I believed him.

For the first date in criminal court, July 1, 2003, Dr. Freedman testified credibly that he was at his South Carolina home on vacation with his children. It is true that Attorney Patalano's first affidavit, Ex. 7, avers that Dr. Freedman was present at the Woburn District Court on July 1, 2003. This affidavit was apparently prepared at the beginning of November 2007, about four years after the date at issue, and I believe that Attorney Patalano was mistaken about Dr. Freedman's presence. On November 28, 2007, Attorney Patalano signed another affidavit, Ex. 15, stating that he had no memory of whether Dr. Freedman was present at the November 3, 2003 pre-trial conference.

It is also true that Attorney Patalano filed an appearance with the Woburn District Court on September 4, 2003 wherein he states, "I've discussed this matter with my client…" But it is certainly possible that Attorney Patalano discussed the matter with his client without Dr. Freedman understanding that he faced criminal charges.

The fact that in September 2005 Dr. Freedman told Board staff that he thought the matter was a misdemeanor also does not change the outcome of this case. A layperson can believe that something is a misdemeanor without knowing it to be criminal. Furthermore, by September 2005, Dr. Freedman had known for a year and a half that the matter was criminal and this knowledge may have influenced his discussions with the Board staff.

In her written closing argument, Board counsel characterized Dr. Freedman's testimony as being self-serving and contradictory and argued that he had faulty and/or selective memory. I had a very different impression of his testimony. I found him to be a highly credible witness with good recall, especially considering the difficult personal situation he was going through during 2003.

Based on the foregoing, I recommend that the Statement of Allegations be dismissed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 3/28/08


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