Board of Registration in Medicine's summary suspension of doctor upheld after hearing based on evidence that doctor performed frequent and medically inadequate breast examinations of two patients.
Recommended Decision on Summary Suspension
On November 18, 2009, the Board of Registration in Medicine issued a statement of allegations against Dhirendra Mohan, M.D., alleging that he had conducted improper breast examinations of two female patients, Patients A and B.
On the same day, the Board, acting in accordance with 243 CMR 1.03(11)(a) summarily suspended Dr. Mohan's license to practice medicine because "the health, safety, and welfare of the public necessitates ... suspension." The Board relied on documents attached to a motion by complaint counsel seeking the doctor's suspension. The documents included (1) an affidavit of Board investigator Norma Jaynes describing her interviews with the two patients and the doctor and her review of the patients' medical records and a videotape of a breast examination the doctor performed on Patient A, (2) the videotape, and (3) an affidavit of Jasen W. Gunderson, M.D., who is Board certified in family medicine, concerning his review of the patients' medical records and the videotape.
Dr. Mohan thereafter filed an answer to the statement of allegations acknowledging that he performed breast examinations upon the patients, but denying improper conduct and objecting to the consideration of a videotape made of an office visit by Patient A because the tape was made without his knowledge. He also filed a motion to vacate the order of summary suspension in which he argued that (1) the Board lacked substantial evidence that he repeatedly conducted breast exams for his sexual gratification, (2) the breast exam captured on tape was performed at Patient A's request, (3) Patient B has retracted her allegations as evidenced by an affidavit he submitted, and (4) Dr. Gunderson's affidavit at best states an opinion that Dr. Mohan's breast examination of Patient A failed to live up to an unspecified standard of care, which is not the equivalent of misconduct warranting suspension.
I held a hearing on the summary suspension on December 18, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. Dr. Mohan subpoenaed Patient A to testify, presented testimony from the receptionist at his office, Joanne Jedziniak, and testified on his own behalf. Both parties submitted post-hearing briefs.
Based on the documentary record, the testimony, and reasonable inferences I draw from them, I make the following findings of fact:
1. Dhirendra Mohan was born on August 1, 1946. He graduated from K.G. Medical College, University of Lucknow, India in 1967. He received training there on conducting breast examinations.
2. He has been licensed to practice medicine in Massachusetts since 1976 under certificate number 39119. He is board certified in internal medicine and in cardiology. He has been in private practice for 30 years with no prior history of discipline. He has a private practice in Holyoke and has privileges at Holyoke Hospital. One third of his work involves consultation in cardiology.
3. Dr. Mohan became Patient A's primary care physician around February 2006 when she was in her late 20s. Patient A had a breast mass when she was in her early 20s that proved to be benign. Amongst the medical issues for which she saw Dr. Mohan was chronic back pain caused by her breast size. She had appointments with Dr. Mohan frequently (except during a period in 2007 when she was pregnant), sometimes as often as once per month, so that he could renew a monthly prescription for painkillers.
4. Dr. Mohan examined Patient A's breasts during each of her office visits, except when she was accompanied by someone else. He did not offer her a chaperone.
5. Proper procedure for breast examination includes offering the patient the opportunity to have a chaperone present, offering the patient a hospital gown, and using the fingertips to examine for lumps.
6. Dr. Mohan typically conducts a breast examination of a patient if she has a tumor, a history of breast cancer, or requests an exam. He uses the flat of the hand to examine all four quadrants of the breast and squeezes the nipples to see if there is a secretion. His patients typically wear their street clothes, although he sometimes offers them a hospital gown. He did not note conducting a breast exam in a patient's medical records unless he found something medically significant during the exam.
7. Patient A noticed that the breast exams she received from Dr. Mohan were different from ones she been given by other doctors, but did not think them inappropriate until a visit in late 2008, during which he tried to kiss her (and she avoided him).
8. Her subsequent and last visit to Dr. Mohan was videotaped. Dr. Mohan gave her a breast examination first while she was lying and then sitting on a table, and then sitting in a chair. Dr. Mohan acknowledged that he is the doctor shown on the tape.
9. Dr. Gunderson, who viewed the videotape opined:
An inappropriate and unprofessional breast examination was performed by Dr. Mohan on Patient A as noted in the video documentation. While there may be times where a patient's breast examination is conducted in two positions (supine and sitting), there is no need for a third position as noted in the chair. The touching of the patient's back and the repetitive manner in which the breasts are touched are completely inappropriate and not within the realm of medical examination.
. . .
A proper breast examination would have included the use of fingertips for fine palpation of small nodules. The gross groping with the entire hand would not be sensitive enough to detect breast pathology.
. . .
Repetitive breast examinations are never indicated. Examination of women's breasts at monthly or every other month intervals are never clinically indicated for routine examination.
10. Patient B was Dr. Mohan's patient for about two years. She suffered a compression fracture after being hit by a snowplow and saw Dr. Mohan every other month to obtain a prescription for oxycodone.
11. Patient B met with Board investigator Norma Jaynes on November 3, 2009. She told Jaynes that Dr. Mohan examined her breasts at every office visit and his examinations felt more like fondling.
12. On November 16, 2009, investigator Jaynes spoke to Patient B, three days after Jaynes spoke to Dr. Mohan. Patient B told Jaynes that she needed to get a prescription and her medical records from Dr. Mohan and that his touching of her was not so bad. She told Jaynes she wanted nothing more to do with this matter.
13. In an affidavit dated December 11, 2009, Patient B stated that "Dr. Mohan has never touched me inappropriately or spoken to me in a lewd or inappropriate manner."
The Board of Registration in Medicine may summarily suspend a doctor's license, pending a hearing on a statement of allegations, if there is reasonable cause or sufficient evidence to establish that the doctor poses an immediate threat to the public health, safety and welfare. Board of Registration in Medicine v. Giraud, Recommended Decision on Summary Suspension (DALA 7/14/95). The Board has met that standard here.
The evidence shows that Dr. Mohan performed repeated, medically unnecessary breast exams on at least two of his patients. This was more than simply a failure of the doctor to employ proper breast examination technique. He routinely failed to offer a chaperone or a hospital gown. The technique he used, as he described it, using the flat of the hand, was not consistent with the proper technique, as described by Dr. Gunderson, that uses fingertips because only they are sensitive enough to detect lumps. Nor was there any medical need for him to examine Patient A's breasts while she was sitting in a chair, as shown on the videotape, when he had already examined her breasts while she was both lying and then sitting on a table. Moreover, he examined Patient A's and B's breasts frequently - on a monthly or bimonthly basis - without any apparent medical necessity and without documenting the results of the examinations. The frequent performance of medically useless breast exams is an adequate ground for summary suspension.
I recognize that Patient B has declined to cooperate further with the Board's efforts to discipline Dr. Mohan and has submitted an affidavit in which she states that "Dr. Mohan has never touched me inappropriately." Her affidavit does not undermine her earlier statements to investigator Jaynes that Dr. Mohan examined her breasts during each of her bimonthly office visits to him. The record contains no evident reason why Dr. Mohan would have performed breast exams routinely on a woman who was coming to see him to obtain medication for pain associated with an accident.
I decline to suppress the videotape. The Massachusetts wiretapping statute makes it a crime for private persons to intercept and record a communication without the permission of all parties to the communication. M.G.L. c. 272, § 99. The statute is criminal in nature and its application to administrative proceedings is not readily apparent. Nonetheless, whatever rules ought to apply in administrative proceedings are not likely to be more restrictive than those applying in criminal cases. In criminal cases, a recording made in violation of the wiretapping statute is not subject to suppression if it was made by a private person not at the behest of the police. See Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862, 864 (1990) and Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 763 N.E.2d 547, 552-553 (2002)(phone conversations made by private citizen before he contacted police admitted at trial, but those made after he contacted police and told them of his recordings suppressed). This is because "[e]xclusionary rules generally are intended to deter future police conduct in violation of constitutional or statutory rights," hence "[n]o deterrent purpose would be served by suppressing . . . intercepted conversations" in which the police were not involved. Santoro, 548 N.E.2d at 864. Here, the videotape was made by a private individual and not at the behest of the government, and thus it is not subject to suppression.
Patient A declined at the hearing to answer whether she had made the recording on the ground that her answer might tend to incriminate her. Dr. Mohan objected that her refusal to answer questions about her role in taping the examination limited his ability to mount a defense, and thus her testimony should either be excluded or an inference should be made that her testimony is biased against him.
Patient A's refusal to answer questions about the making of the videotape did not prevent Dr. Mohan from presenting a defense. The tape is relevant to this proceeding because it shows Dr. Mohan's breast examination technique. Dr. Mohan's defense of his actions on the tape does not turn on knowing who made the tape.
To the extent any negative inference should be drawn from Patient A's testimony, it is that she made the tape. Because the tape shows only two people in the examination room and because the record shows that Patient A provided the tape to the Board, I am willing to make that inference. That does not of itself show that Patient A is biased against Dr. Mohan.
Dr. Mohan also argued that Patient A is biased because she has now sued him. I have taken this argument into account, but do not find that it undermines her testimony as to either the manner in which Dr. Mohan conducted breast examinations or the number of breast examinations he performed.
Dr. Mohan also pointed out that the Board did not have the benefit of listening to as well as seeing the tape. He claims that now that he has had many nearly inaudible audio portions of the tape professionally enhanced, the recovered portions of the conversation between him and Patient A exonerate him because they show that Patient A requested a breast exam. The Board disagrees with this rendering of the audio portion of the tape. For now, I need not decide who has the correct version of the conversation because even if Patient A asked for a breast examination, that does not explain the nature of the examination that Dr. Mohan provided, the one that Dr. Gunderson considered "inappropriate and unprofessional."
Finally, I note that Dr. Mohan is correct that, if a person has begun to testify on a potentially incriminating subject, she has waived the privilege as to subsequent questions on related facts, Commonwealth v. King, 462 Mass. 252, 763 N.E.2d 1071, 1078 (2002), and can be ordered to testify, Commonwealth v. Penta, 32 Mass. App. Ct. 36, 586 N.E.2d 996, 1002 (1992). Compare Commonwealth v. Dias, 451 Mass. 463, 886 N.E.2d 713, 722 (2008)(witness did not waive privilege against self-incrimination by speaking with police) and United States v. Feldman, 83 F.3d 9,14 (1st Cir. 1996)(voluntary preparation of written account effectively waived Fifth Amendment protections). I do not decide whether waiver applies to the present situation in which Patient A provided the videotape to the Board because, to the extent Dr. Mohan wishes to compel testimony from Patient A at any subsequent hearing on the statement of allegations, he must seek a court order.
I recommend that the Order of Temporary Suspension issued on November 18, 2009 be sustained pending the outcome of a final hearing on the merits of the statement of allegations.
DIVISION OF ADMINISTRATIVE LAW APPEALS,
James P. Rooney
Dated: February 26, 2010