On October 26, 2017, the Petitioner, Board of Registration in Medicine (BRM), issued a Statement of Allegations ordering the Respondent, Debra Little, M.D., to show cause why she should not be disciplined on the bases that: she failed to follow the standard of care in several respects when treating Patient A and she made one or more false statements and accused Patient A of making “grossly false and inaccurate allegations” in a written response to the BRM. The BRM referred the matter to the Division of Administrative Law Appeals (DALA).
The Respondent’s Answer was filed on December 7, 2017. She denied the allegations pertaining to her failing to follow the standard of care when treating Patient A. She denied the allegation that she made one or more false statements in her written response to the BRM. She admitted that she made one false statement to the BRM. She noted that she corrected the one false statement. The Respondent also raised an affirmative defense to the Statement of Allegations. She contended that the Statement of Allegations is null and void because the discussion leading up to the vote was led by the BRM Chair and the Chair participated in the vote in violation of the BRM’s Conflict of Interest Policy (Policy 2017-01).
A pre-hearing conference was held on January 3, 3018. The Respondent, through counsel, indicated her intention to file a Motion for Summary Decision on the basis of the affirmative defense. It was agreed that the initial discovery in the appeal would pertain exclusively to documents and other evidence related to the affirmative defense. A discovery schedule was established.
The parties exchanged voluntary, reciprocal discovery, then reached an impasse. On March 30, 2018, the Respondent filed a Motion for an Order Compelling Discovery pursuant to 801 CMR 1.01(8)(i). The Respondent’s requests were as follows and were limited so as to extend only to documents relevant to her affirmative defense:
Request No. 4
All Board minutes, draft minutes and minute-taker and paralegal notes pertaining to Docket No. 13-99, and all documents provided to the Board (other than documents provided to the Board by the Respondent) in connection with such meetings.
Request No. 7
All communications between the Board’s Executive Director and any Board members regarding Docket No. 13-99, including, but not limited to, the subject of recusal.
Request No. 8
All communications between the Board’s Executive Director and any Board employees regarding Docket No. 13-99.
Request No. 15
Documents indicating the dates and amounts of any contributions from Board Chair Dr. Candace Lipidus (sic) Sloane (Dr. Sloane), her immediate family, or entities substantially controlled by Dr. Sloane or her immediate family, for the benefit of Boston Children’s Hospital or its affiliated entities, for the period starting one year prior to Dr. Sloane’s appointment to the Board, to the present.
Request No. 16
Documents relevant to Dr. Sloane’s or her immediate family members’ appointment to any position (full time, part time, adjunct, honorary or any of their substantial equivalents) at Children’s Hospital or its affiliated entities, for the period starting one year prior to Dr. Sloane’s appointment to the board, to the present.
Request No. 17
To the extent not provided in response to Request Nos. 16 or 17 (sic), documents pertaining to Dr. Sloane’s (or her immediate family members’ or entities’ substantially controlled by Dr. Sloane or her immediate family members) “financial, professional or personal Interests” at or otherwise pertaining to Boston Children’s Hospital or its affiliated entities.
The Petitioner contends that the documents sought by the Respondent consist of work product and are protected by the attorney client privilege. The Petitioner further contends that the actual Petitioner in this case is not the Board of Registration in Medicine in its entirety, but rather, the Board’s disciplinary unit.
I denied the Respondent’s Request Nos. 15-17 during the May 18, 2018 motion hearing. These particular discovery requests pertain to documents that are not within the custody and control of the Board or any of its subdivisions. Should the Respondent wish to pursue her request to access documents pertaining to Dr. Sloane’s financial or professional relationship to Children’s Hospital, she must seek other legal means.
I am granting the Respondent’s Requests 4, 7 and 8. Any facts pertaining to communications and documents that were central to the Board’s action in Docket No. 13-99 are essential to the Respondent’s affirmative defense. In rendering this ruling, I am concluding that the Board of Registration in Medicine is a party in this case. It is the agency that initiated this legal proceeding against the Respondent. The Standard Adjudicatory Rules support this interpretation.
Complaint Counsel protested that if the Board was answerable to these discovery requests, he would be compelled to have ex-parte communications with the Board Chair. This is not so. He is free to approach the Board’s General Counsel with the discovery requests.
G.L. c. 112, § 5 provides in pertinent part:
…The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connections with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board’s regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation by issuing an order to show cause, by dismissing a complaint or by taking other final action nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations. (Emphasis added.)
The Board of Registration in Medicine is the custodian of the documents that are the subjects of Respondent’s Requests 4, 7 and 8. To this point, the Board has not proven with specificity that any exemption or privilege applies. Cf. General Electric Company v. Department of Environmental Protection, SJC-07920, slip opinion, p. 10 (June 24, 1999).
The Respondent’s Motion to Compel Production of the documents, notes and communications delineated in her requests 4, 7 and 8 is ALLOWED. The Board is ordered to produce these discovery materials on or before July 31, 2018.
Division of Administrative Law Appeals,
DATED: July 13, 2018