Sunday, June 21, 2009

Reciprocal Discipline For Nurses

The full Massachusetts Supreme Judicial Court rejected as premature a nurse's objections in a reciprocal discipline licensing proceeding. The opinion:

In a reciprocal discipline proceeding, the Board of Registration in Nursing (board) indefinitely suspended Penelope Lankheim's license to practice as a registered nurse in Massachusetts. That proceeding was based on Lankheim's voluntary relinquishment of her license after disciplinary proceedings in the State of Florida. Lankheim sought judicial review in the county court...[a] single justice of this court ruled that the board was authorized to impose reciprocal discipline based on Lankheim's voluntary relinquishment of her Florida license. However, he remanded for "reconsideration of the question of sanction without regard to the vigor with which Lankheim opposed the existence of discipline in Florida." Lankheim appealed to the full court.

The board has moved to dismiss the appeal on the ground that the single justice's decision was interlocutory. It is well established that, in an action seeking judicial review of an administrative agency's decision, no appeal lies from a decision of the trial court remanding the matter to the agency for further proceedings where "the administrative tribunal has choices to make about the result, in nuance and fundamental conclusion." "An order of remand ... is ... not final, particularly when the operative verb in the order has been 'reconsider.' " Lankheim argues that the order of remand is final and appealable because the board's discretion is limited in that it may no longer consider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: a judicial order remanding a matter to an administrative agency may be deemed an appealable judgment when "the administrative body [is] given no discretion, being ordered to decide the matter in controversy in a manner specified by the court." The single justice's order of remand did not direct the board to impose a particular sanction on Lankheim. The order merely removed one factor from the board's consideration and left the board with ample discretion to evaluate the remaining facts and circumstances in the case. Accordingly, Lankheim may not appeal from the single justice's order remanding the matter to the board for reconsideration of the appropriate sanction, as it was not a final judgment. (citations omitted)

The case is Lankheim v. Board of Registration in Nursing, decided June 19. (Mike Frisch)

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Comments

What a bunch of mumbo jumbo

Posted by: Peary Brown | Jun 6, 2014 8:37:59 AM

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