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In re Blum

Denied: February 24, 1970.

IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF GEORGE BLUM TO PRACTICE CHIROPRACTIC IN THE STATE OF NEW JERSEY


Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.

Collester

This is an appeal by George Blum, a chiropractor, from a final decision of the State Board of Medical Examiners (Board) which revoked his license to practice chiropractic within the State.

Appellant was charged with violation of N.J.S.A. 45:9-16(d) which provides that the Board may revoke a license to practice chiropractic upon proof that the holder of the license has advertised fraudulently. At the hearing before the Board, the State introduced in evidence 24 advertisements which the appellant had placed in New Brunswick newspapers between October 1, 1967 and April 9, 1968. Each advertisement contained the appellant's name, photograph, address, office hours, telephone number and an article allegedly dealing with the practice of chiropractic.

One of the advertisements bore the heading, "High blood pressure -- and its correction," and stated that "Chiropractic is a normal procedure to adopt to reduce this high blood pressure naturally and being reduced naturally, it stays reduced." Dr. Martino, a chiropractor, testified that the statement was "gross misinformation * * * too gross to be accurate * * * not academically correct * * * not clinically correct." Dr. Cianciulli, also a chiropractor, characterized it as being "physiologically incorrect."

Another advertisement headed, "Do you need drugs with your adjustments?" read: "Any drug you are required to use for any reason should be reported to your chiropractor and he will give specific instructions as to continuance of such a drug." Both Dr. Martino and Dr. Cianciulli indicated that the statement was a misrepresentation. Dr. Martino said a chiropractor is not trained in the use of drugs and not qualified to advise as to such use. Dr. Cianciulli testified that drug therapy is the practice of medicine which chiropractors are not qualified to practice and that the statement was misleading.

Sylvia Swidler, an inspector of the Division of Professional Boards, testified that she went to the appellant's office and told him she was suffering from several ailments (all of which were fictitious). She asked for the free consultation promised in one of his advertisements. She testified he did not provide her with a "free consultation" but said he could not tell or do anything for her unless he took an X-ray of her spine. He charged her $20 for the X-ray. On her second visit he said her problems stemmed from pressures on the spine; that she required 18 weeks of treatment, three times a week, for a test period and that total correction would take 2 1/2 years. He gave her a brochure indicating that maximum correction would result with her cooperation and showing a tombstone reading, "Rest in Peace," for failure to cooperate.

The Board found as a fact that 16 of the advertisements contained statements which were false, deceitful, and in

some instances injurious to the public. It adjudged appellant guilty of advertising fraudulently in violation of the statute and revoked his license to practice chiropractic.

Appellant raises three grounds of appeal. He contends: (1) he was denied his due process right to a hearing before an impartial tribunal; (2) the Board failed to prove or make a specific finding of fact that he made the misrepresentations with a fraudulent intent, and (3) the Board had no authority to charge or find him guilty because the advertisements contained statements which were allegedly derogatory of the medical profession.

Appellant's argument that he was denied a due process right to a hearing before an impartial tribunal is based on the claim that N.J.S.A. 45:9-16 permits a merger of the functions of investigator, prosecutor and judge in the State Board of Medical Examiners. There are two answers to this argument. First, even if the contention were true, it is not a violation of due process. See State Board of Medical Examiners v. Kempkes , 10 N.J. Misc. 838 (Sup. Ct. 1932), and concurring opinion of Judge (now Justice) Brennan in In re Larsen , 17 N.J. Super. 564, 575 (App. Div. 1952). Secondly, the facts do not support appellant's argument that there was a merger of such functions. Here the investigation was made by an inspector of the Division of Professional Boards of the Department of Law and Public Safety, the prosecution was conducted by a deputy attorney general, who is not subject to the Board in any respect, and the case was heard and determined by the Board.

We also find no merit to appellant's second point. While the violation of N.J.S.A. 45:9-16(d) requires proof that the proscribed fraudulent advertising was intentionally false, calculated to mislead or deceive the public (cf. Abelson's Inc. v. N.J. State Board of Optometrists , 5 N.J. 412, 422 (1950)), such proof may be discovered, as other mental states are, in the evidence of the accused's conduct in the surrounding ...


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