BILL v. BOARD OF REGISTRATION OF CHIROPRACTORS, 394 Mass. 779 (1985)

477 N.E.2d 589

Supreme Judicial Court of Massachusetts. Suffolk.December 4, 1984.
May 9, 1985.

Present: HENNESSEY, C.J., LIACOS, LYNCH, O’CONNOR, JJ.

Chiropractor. Board of Registration of Chiropractors.

A decision of the Board of Registration of Chiropractors to suspend the license of a chiropractor who had advertised a “Laser” face-lift and had treated a patient responding to the advertisement with a laser instrument was supported by substantial evidence. [780-782] A suspension of a chiropractor’s license for eighteen months as a result of his advertising a “Laser” face-lift and using a laser instrument on a patient was not unreasonable or excessive. [782-783]

CIVIL ACTION commenced in the Superior Court Department on June 26, 1984.

Upon transfer to the Supreme Judicial Court for the county of Suffolk, the case was heard by Abrams, J.

J. Owen Todd for the plaintiff.

Kathleen M. Bowers, Assistant Attorney General, for the defendant.

LIACOS, J.

Frank R. Bill, a chiropractor, appeals from a decision of a single justice of this court, holding that certain conclusions of the Board of Registration of Chiropractors (board) which underlay the board’s decision to suspend the plaintiff’s license to practice chiropractic were supported by substantial evidence.[1]

Page 780

See G.L.c. 112, § 64. The plaintiff argues that the single justice erred, and that the board’s decision to suspend him for eighteen months and to prohibit the operation of his office under his name during that time was unreasonable and excessive. We hold that the board’s decision was supported by substantial evidence and thus that the single justice did not err. We conclude further that the sanctions imposed by the board were neither unreasonable nor excessive.

1. Substantial evidence. The board made the following findings: Edward Howard visited the plaintiff’s office in response to an advertisement for a “Laser” face-lift. Howard received a laser treatment with a wand-like instrument. He did not sign any patient consent forms, and he was not given protective eyewear. Counsel for the plaintiff stipulated that the laser instrument was on the plaintiff’s premises and was not registered at that time. The board found that the plaintiff attempted to use a procedure which he thought was “supportive to the chiropractic adjustment” without following usual and customary history and examination procedures to indicate the propriety of chiropractic therapy; that the use of laser instruments is not recognized as a usual and customary supportive procedure in chiropractic; and that the plaintiff attempted to treat for a condition not within the scope of chiropractic care. The board concluded that the plaintiff’s use of the laser device was beyond the scope of chiropractic as defined in G.L.c. 112, § 89;[2]

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that such use violated G.L.c. 112, § 61;[3] that the plaintiff’s advertisement of the laser device was misleading and deceptive because use of the laser device was outside the scope of his practice; that his use of the laser device without apparent approval of Federal and State authorities constituted negligence; and that he violated 233 Code Mass. Regs. §§ 4.05[4] and 4.09[5] (1983).

An examination of the record discloses substantial evidence — “such evidence as a reasonable mind might accept as adequate to support a conclusion” — to support the board’s findings and conclusions. G.L.c. 30A, § 1 (6), as amended through St. 1979, c. 795, § 3. See Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 304 (1981). Howard’s testimony reveals that he responded to the plaintiff’s advertisement

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for a laser face-lift and that at the plaintiff’s office he received treatment — albeit two minutes’ worth — with the laser device. An unidentified woman employee in the plaintiff’s office administered the treatment. She took a “wand-like” instrument connected by a cord to a machine and pressed the tip of it against a wrinkle on Howard’s face. Alexander C. Politis, a chiropractor called as an expert witness by the prosecution, testified that this laser face-lift technique “had nothing to do with chiropractic.” Stuart L. Neivert, a chiropractor called by the plaintiff, testified that he did not use the laser face-lift technique, and that he did not know any chiropractor in Massachusetts (other than the plaintiff) who uses the procedure. Considerable oral testimony and documentary evidence established that the laser face-lift procedure is not offered as a course at chiropractic colleges. An official from the Massachusetts Department of Public Health (department) testified that the plaintiff’s laser machine was not registered when an inspection occurred, and that the plaintiff’s facilities were not in compliance with other requirements of the department. A Federal official from the Food and Drug Administration testified that the plaintiff’s laser device was not labeled “for investigational use only,” as Federal law required. Shortly after the State investigation, the plaintiff came into compliance with State requirements; shortly after the Federal investigation, the plaintiff stopped using the device. From the foregoing evidence and other evidence in the record, we conclude that the board’s findings and conclusions are supported by substantial evidence.[6]

2. Sanctions. The plaintiff has not persuaded us that the sanctions imposed by the board are “unreasonable and excessive” as he alleges. He has not indicated to us the existence of “the most extraordinary of circumstances”; without such a showing we do not interfere with the board’s “exercise of its

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sound discretion.” Levy v. Board of Registration Discipline in Medicine, 378 Mass. 519, 528-529 (1979). We note that, on remand, the board reduced the length of the suspension by one-half, even though it stated, on remand, that “the major weight of infraction laid with the Howard complaint.”

The single justice made no error. See Gurry v. Board of Pub. Accountancy, ante 118, 129 (1985). Furthermore, the board’s sanctions are not unreasonable or excessive. The case is remanded to the single justice for entry of a judgment affirming the board’s revised sanction of a suspension from practice for eighteen months and a prohibition of the operation of the plaintiff’s office under his name during the suspension.

So ordered.

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