MICHAEL L. LANGAN
BOARD OF REGISTRATION IN MEDICINE.
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
Michael L. Langan, pro se.
F. Bertram, Assistant Attorney General, for the Board of
Registration of Medicine.
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.
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. As a result of these positive 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.
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.
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, §
See Hoffer v. Board of Registration in Med., 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
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. Langan now
appeals from that judgment.
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 (1990). In reviewing the board's
decision, we defer to its expertise. Sugarman, supra
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.
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. 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
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 secular support group if he
had so requested. Finally, and most ...