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State Board of Medical Examiners v. Weiner

Decided: July 5, 1961.

STATE BOARD OF MEDICAL EXAMINERS, AND ROSCOE P. KANDLE, STATE COMMISSIONER OF HEALTH, COMPLAINANTS-RESPONDENTS,
v.
ALBERT L. WEINER, RESPONDENT-APPELLANT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.

Freund

This is an appeal by Albert L. Weiner, pursuant to R.R. 4:88-8, contesting the action of the State Board of Medical Examiners (Board) in temporarily suspending his license to practice medicine and surgery pending the outcome of a manslaughter indictment returned against him by the Grand Jury of Camden County. The appeal presents substantial challenges to the nature and extent of the professed statutory suspension and revocation authority of the Board.

The history of this litigation was developed in part in our decision holding that Dr. Weiner possessed the right to appeal, as from a final order, reported in 67 N.J. Super. 199 (App. Div. 1961), but further exposition is warranted in view of the unusual circumstances surrounding the initial suspension and the later continuation thereof, the latter event comprising the major subject of this appeal.

Following a significant outbreak of alleged serum hepatitis (resulting in nine deaths) among patients treated and administered parenteral injections by Dr. Weiner, the State Commissioner of Health -- by notice of October 25, 1960 -- ordered the osteopath, "in the interest of protection of public health based upon evidence of an unusual incidence of mortality due to an infectious or other toxic agent," to cease "the administration and use of parenteral and other drugs and materials until further notice." Dr. Weiner immediately complied with this order, which, with a slight modification to permit injections of gamma globulin, has remained in effect to the present time.

Shortly thereafter, Dr. Weiner was notified by the Deputy Attorney General, counsel to the State Board of Medical Examiners, to appear before the Board's Committee on Illegal Practice in Princeton, N.J. on November 16, 1960, for the purpose of "inquir[ing] into certain alleged practices in the treatment of certain of your patients." Dr. Weiner appeared at the meeting, a transcript of which is included in the record before us. He was represented by

counsel, who were equipped with an investigator and a "medical consultant." Six members of the Committee, ten members of the Board (plus several of their secretaries), and the Board's Chief Administrative Officer were present. The proceeding was conducted by the aforementioned counsel to the Board.

At the outset, Dr. Weiner was informed that any statements made could later be used against him, but was requested to cooperate in a "very informal" proceeding in order that the Board might receive a full picture of the factual details relating to certain known incidents in his recent practice. He was informed that

"* * * at this point, there is no formal charge against you insofar as this Board is concerned. This is merely an inquiry. We're attempting to get from you an explanation of what this is all about, so that the Board can make its own determination, if any future course of action is necessary."

When asked by Dr. Weiner's attorney to identify the statutory basis for the proceeding and to detail any charges contemplated against his client, the Board's counsel referred momentarily to N.J.S.A. 45:9-16, mentioned the possibility of "a criminal charge of homicide," and proclaimed that "if the Board at any time feels that any practitioner licensed by the Board is not practicing in a manner which is consistent with the standards which this Board observes, it can call the license in at any time and suspend and revoke it, if it feels it is in the best interest of the general health and welfare." He then further indicated the Board's position with respect to the proceeding:

"* * * We are extending a courtesy to Doctor Weiner respecting his rights and his position to the Nth degree. * * * You can refuse to answer, you can demand to leave this room and to take your client with you, but I am advising you now that if you take such action Doctor Weiner will leave this room without his license, because there are 13 deaths already involved here. The only thing this Committee wants to know at this time is, what is

causing these deaths. We want to get to the bottom of it, and I would appreciate your cooperation and your client's cooperation in telling us his story."

Dr Weiner's recital, interspersed by questions and comments from the Board and Committee members and from counsel, was essentially a summary of the recent events in his practice, his reaction to them, and the preventative measures he had taken. He related that he was licensed to practice in New Jersey and had so practiced since 1943. Since 1955, he had been certified in psychiatry by the American Osteopathic Board of Neuropsychiatrists. His practice was exclusively neuropsychiatric, and he operated mainly on the basis of referrals from other physicians and from several hospitals in New Jersey and Pennsylvania with which he was associated. In addition to his hospital connections, he attended clinics one afternoon a week, and, on another afternoon, taught psychiatry and neurology at the Philadelphia College of Osteopathy. His sole office was located in Erlton, Delaware Township, Camden County, and his hours were by appointment in the mornings and evenings, five days a week. The duration of each appointment depended on the type of treatment involved, and varied from 10 minutes to 45 or 50 minutes. He was aided in his practice by two nurses.

Dr. Weiner's therapy consisted mainly of analysis and electric shock, in connection with which he would administer several kinds of drugs, including sodium surital, sodium amobarbital, atropine, methapyraline, hormones, vitamin B, and methan phetamine. In cases of narcoanalysis, the amount of drug injected was determined by the level at which the patient was able to start talking freely. He estimated that he had four to five dozen needles and syringes in the office. He purchased his medication (referring particularly to the sodium surital at this point) through one of the hospitals with which he was connected, in large quantities of five-gram vials. Since the vials were designed for multiple use, the contents would be reconstituted, in the

original vial, with 200 cc's of physiological saline. The drug would then be ready for use, each vial usually yielding about ten separate injections. Dr. Weiner said that he administered all intravenous injections personally but that intramuscular injections, such as pre-shock administrations of atropine and methapyraline, or vitamin and hormone injections, might be given by the nurses. He estimated that he administered an average of two to three dozen injections a day and the nurses another 20 or so. He maintained that patients would never, on an office visit, receive injections from his nurses without also seeing him.

Dr. Weiner's normal sterilization procedures consisted of depositing used needles and syringes in a container of commercial detergent, purely for cleansing purposes, for an hour or more, and, when a collection of used instruments had accumulated in the cleanser, placing them all in a hot air sterilizer (he also had a boiling water sterilizer in his office, which had not been in use since 1958) equipped with a laboratory timer. Since the sterilization procedures were usually carried out by his nurses, Dr. Weiner had no firsthand knowledge of their methods; but he said that their instructions were to run the sterilizer continually at a temperature of 375 degrees Fahrenheit and to set the timer, for each batch of instruments, for at least 15 minutes.

Dr. Weiner recalled that he had first encountered difficulty in his practice when a teen-age boy under narcoanalytic treatment came down with an attack of severe abdominal pain three days after his last injection, on July 14, 1960, and was admitted to Metropolitan Hospital for medical examination, which was inconclusive. The boy died on the following day, July 18. As the family refused to permit an autopsy, the case was referred to the County Coroner for a post-mortem; "phosphorous poisoning" was listed as the cause of death. Several deaths followed shortly thereafter (although it appears from Dr. Weiner's testimony that he was unaware of the one which occurred on July 28, 1960, and knew only of the death of Townsend L. Harris

on July 31, 1960). Following the last mentioned demise, the question arose as to possible toxicity of nardil (which the patient had been taking); Dr. Weiner and the attending physician called a physician at one of the pharmaceutical houses, but the inquiry apparently produced no results. On September 7, 1960 another death took place, with findings of "hepatic destruction"; however, a tissue analysis by a pathologist was inconclusive for either viral or toxic hepatitis. Another death occurred on September 15, 1960, the patient succumbing while on vacation in Illinois.

Following the sixth fatality (although, according to Dr. Weiner, it was only the fourth that he had learned about at that time), one George Lauer, who died on September 24, 1960 at the Delaware Valley Hospital, in Bristol, Pa., and an autopsy report of "hepatic necrosis," Dr. Weiner took steps to review his office procedures and techniques. He discussed the situation with Dr. Bond, the internist at Delaware Valley, and it was agreed that Dr. Weiner should review his sterilization procedures. One suggestion, which he immediately followed, was to substitute an autoclave (a steam-pressure device) for the hot air sterilizer he had been using. He also replaced all of his injection instruments with disposable needles, and he caused tissue specimens to be sent for examination to the Jefferson Medical College of Philadelphia and to the New Jersey State Police Laboratory. Dr. Weiner also called Dr. Ferren, the Township Health Officer (and a member of the State Board), who questioned him about his sterilization techniques. When Dr. Weiner assured him that he was careful in that respect, Dr. Ferren replied that that was all that was necessary and remarked, reassuringly, that several cases of infectious hepatitis had been encountered that year in the area.

Within a week or ten days thereafter, Dr. Weiner called the State Board of Health, and was referred to Dr. Dougherty. He told Dr. Dougherty that there had been several deaths of patients referred to him, and he requested a review of his steriliation techniques and suggestions for

improvements. Dr. Dougherty suggested that Dr. Weiner increase his time for autoclave sterilization; in addition, he offered to make an epidemiological study of Dr. Weiner's patients. Dr. Weiner testified that he hesitated to assent to this offer, because many of his patients had extremely nervous conditions and he did not want to further upset them. Apparently the study was not made at that time.

On October 24, 1960, by which time the total number of deaths had risen to nine, Dr. Weiner was visited at his office by Dr. Dougherty, who told him that an investigation was under way and instructed him to put aside all medication and to procure new drugs and new medication. Dr. Weiner immediately followed these instructions, and early the next morning he proceeded to purchase new medication; later that morning, however, he received the order from Commissioner Kandle prohibiting further injections.

By the time of the Princeton hearing, four more deaths had occurred, involving patients of Dr. Weiner. (The eventual totals for the period, January 1, 1960 to March 18, 1961, when the last death occurred, included 41 alleged cases of serum hepatitis, 15 of them resulting in death; several of the latter, however, occurred out of the State. There were 26 reported deaths in New Jersey in 1960 due to all types of hepatitis, though there is, of course, the possibility of incidence of undiagnosed deaths from this cause.) Dr. Weiner was asked, in his view, what had caused this situation. He responded:

"* * * In every case, starting with the first case which had no obvious connection with this type of condition. I have had consulting physicians, I have made each case either a coroner's case, where the family would not cooperate, or done a post-mortem; I have had or have countenanced ancillary studies in other institutions, and I cannot -- I honestly cannot -- arrive at a conclusion."

Dr. Weiner added that he was fully satisfied in his own mind that his sterilizer was being operated and had been operated properly. He denied any awareness or even suspicion

that his injections may have been connected in any way with the deaths until that of Lauer. He noted that drug jaundice was not altogether unusual in his practice, and that he encountered perhaps two to three cases a month upon administration of any of the thorazine group of medications, which he would immediately withdraw upon perceiving the jaundice.

As no further questions or comments were forthcoming, the Princeton proceeding was brought to a close at this point. By letter dated the following day, the secretary of the Board informed Dr. Weiner that pursuant to the decision of the Board at a meeting at Princeton on November 16, 1960, his license to practice medicine "is temporarily suspended, effective immediately, until the conclusion of the Board's investigation into certain alleged practices in the treatment of certain of your patients." The Board's ruling was stated to be based upon "the opinion that to continue the privilege of license to practice medicine in New Jersey to a doctor where the morbidity and mortality has reached the proportion which appears to be occurring in your practice is not in the public interest."

The next round of procedural skirmishes between Dr. Weiner and the Board was set forth extensively in our disposition of his motion for leave to appeal (67 N.J. Super. 199). The significant point is that the court recognized a right of appeal without leave as of April 20, 1961, and that notice of appeal was filed on April 27, 1961 (later amended to include the subsequent action of the Board, on May 11, 1961, outlined infra). By order of May 3, 1961, this court accelerated the hearing date of Dr. Weiner's appeal "because of the nature of the subject matter," and indicated appropriate filing dates for briefs and appendices.

On May 1, 1961 the Grand Jury of Camden County returned a 15-count manslaughter indictment against Dr. Weiner, each count pertaining to one of the deaths allegedly related to his practice. Trial on this indictment, originally scheduled for early June 1961 has, we are informed, been

postponed until the fall, pending resolution of preliminary defense motions.

On May 11, 1961 the Board adopted a resolution noting that: (1) its investigation "into certain alleged practices in the treatment of certain of the patients" of Dr. Weiner had been completed; and (2) an indictment was presently pending in the Camden County Court charging Dr. Weiner with the manslaughter of 15 persons. The resolution thereupon recited, by unanimous vote of the members purportedly present (see III (C) hereinafter), that "the temporary suspension of Dr. Albert L. Weiner's license to practice medicine in the State of New Jersey is hereby continued pending the final disposition of the aforesaid criminal proceedings in the Camden County Court, and upon such final disposition the temporary suspension shall continue until the State Board of Medical Examiners at its next meeting takes appropriate action with respect to such final disposition."

The Attorney General, appearing on behalf of the Board, moved before us, on May 15, 1961, to dismiss the appeal, or, in the alternative, for a stay of proceedings until final disposition of the criminal indictment. The reasons advanced were that the appeal had become moot because the May 11 suspension order had superseded the original order of November 16, 1960 and that, in any event, a determination of the appeal in favor of the licensee during the pendency of the criminal trial would prejudice the State's position in that proceeding. In denying these motions and ordering the appeal to proceed as scheduled, we remarked that, as to the first argument, the present appeal is not from the Board's original suspension as such, but rather from "the failure of [the Board] to terminate the suspension in the absence of preferment by it of charges against the licensee looking toward a statutory hearing after a reasonable time for completion of the investigation"; and as to the second contention, that possible prejudice of a criminal trial, the date of whose commencement was in some doubt, was here outweighed by the unfairness of continuing

to inflict upon the licensee the "irrevocable loss" attendant upon suspension without affording him a reasonably expeditious review of the "substantial legal questions" raised by his challenge to the Board's authority.

It should be noted that although Dr. Dougherty of the State Health Department, on March 23, 1961, made an affidavit in the early stage of this litigation to the effect that the deaths resulted from Dr. Weiner's "repeated and continued failure to use reasonable, standard and accepted medical practices in the treatment of his patients," the appellant has never been apprised by the State authorities of the basis of that conclusion, nor is it reflected anywhere in the present record. The Attorney General stated at oral argument that the investigation of the State has cleared the drugs used by Dr. Weiner of any causal connection with the outbreak of disease among Dr. Weiner's patients, and that the indictment is based solely upon the methods of administration of the drugs.

I.

Having conceded, by virtue of the Board's declaration that its investigation is completed, that the reason underlying the November 16, 1960 suspension order no longer exists, the Attorney General seeks to base the legal justification for continued deprivation of Dr. Weiner's license upon the Board's resolution of May 11, 1961. His argument, in a nutshell, is one of implied authority temporarily to suspend a license pending the outcome of a criminal indictment whose successful prosecution may afford the Board an express statutory basis for permanent revocation, to be found in N.J.S.A. 45:9-16, providing as follows:

"The board may refuse to grant or may suspend or revoke a license or the registration of a certificate or diploma to practice medicine and surgery or chiropractic filed in the office of any county clerk in this State under any act of the Legislature, upon proof to the satisfaction of the board that the holder of such license (a) has [68 NJSuper Page 480] been adjudicated insane, or (b) habitually uses intoxicants, or (c) has practiced criminal abortion, or been convicted of the crime of criminal abortion, or has been convicted of crime involving moral turpitude, or has pleaded nolo contendere, non vult contendere or non vult to an indictment, information, or complaint alleging the commission of the crime of criminal abortion or of crime involving moral turpitude, or (d) has advertised fraudulently, (e) becomes employed by any physician, surgeon, homeopath, eclectic, osteopath, chiropractor, or doctor who advertises fraudulently, or (f) shall have presented to the board any diploma, license or certificate that shall have been illegally obtained or shall have been signed or issued unlawfully or under fraudulent representations, or obtains or shall have obtained a license to practice in this State through fraud of any kind, or (g) has been guilty of employing unlicensed persons to perform work which, under this chapter (45:9-1, et seq.) can legally be done only by persons licensed to practice medicine and surgery or chiropractic in this State. The board shall refuse to grant or shall suspend or revoke any such license or the registration of any such certificate or diploma upon proof to the satisfaction of the board that the applicant for, or holder of, such license habitually uses drugs or has been convicted of a violation of or has pleaded nolo contendere, non vult contendere or non vult to an indictment, information or complaint alleging a violation of any Federal or State law relating to narcotic drugs. Before any license, or registration of a certificate or diploma to practice medicine or surgery or chiropractic filed in the office of any county clerk of this State under any act of the Legislature, shall be suspended or revoked, except in the case of convictions of criminal abortions or convictions of crime involving moral turpitude or plea of nolo contendere, non vult contendere or non vult to indictment, information, or complaint alleging commission of the crime of criminal abortion or crime involving moral turpitude, or convictions of violations of or pleas of nolo contendere, non vult contendere or non vult to an indictment, information or complaint alleging violations of any Federal or State law relating to narcotic drugs, the accused person shall be furnished with a copy of the complaint and be given a hearing before said board in person or by attorney, and any person whose license shall be suspended or revoked in ...


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