Lynch, Milmed and Antell.
These consolidated appeals and two others*fn1 were initially from October 6, 1975 decisions of the State Board of Medical Examiners that each of the hospitals involved "must cease and desist forthwith from performing major operations without a qualified physician licensed to practice medicine and surgery in the State of New Jersey, assisting in these operations."
The Board's decision had been reached following appearances before it by physicians and representatives of nine hospitals*fn2 to discuss and explain State Health Department inspection reports that major surgical procedures were being performed in ten hospitals*fn3 in the State with no first assistant surgeon in attendance or with a registered nurse, licensed practical nurse, O.R. technician, medical student, or unlicensed foreign medical school graduate acting as first assistant surgeon. On January 8, 1976 a proposed Board rule concerning certain requirements during major surgery was published in the New Jersey Register. Appellants applied to this court for an injunction to enjoin Board
promulgation of the proposed rule. That motion was denied. In response to numerous objections the Board withdrew the proposed rule and proposed instead a substantially revised rule on the subject. The revised rule was approved by the Medical Society of New Jersey and the New Jersey Hospital Association, and thereafter, on August 19, 1976, it was adopted by the Board and is now N.J.A.C. 13:35-7.1. Appellants then moved before us for an order permitting review of the Board's new rule and directing the Board to supplement the record on appeal to include the documents received by the Board in response to its published notices of proposed rule-making. We granted the motion.
At oral argument on these appeals counsel stipulated that the October 6, 1975 "cease and desist" decision of the State Board of Medical Examiners is no longer in effect, having been superseded by the now governing rule, N.J.A.C. 13:35-7.1. In the circumstances it appears that the October 6, 1975 administrative action of the Board no longer has any impact upon the hospitals involved and that there is no justiciable controversy between the hospitals and the Board in regard to that action. The appeals from the October 6, 1975 decision of the Board have thus become moot and are, accordingly, dismissed. We now proceed to a determination of the validity of the new rule, as embodied in N.J.A.C. 13:35-7.1.
Appellants now contend that (a) "[t]he Board has no statutory power to promulgate the rule in question"; (b) "[t]he rule is void for vagueness"; (c) "[t]he rule is invalid because it is inconsistent with the provisions of the Medical Practice Act", and (d) "[t]he rule is void as patently arbitrary, capricious and unreasonable, substantively and procedurally." We find no merit in any of these contentions.
N.J.A.C. 13:35-7.1 reads as follows:
(a) Major surgical procedures are those with a hazard to the life, health, or welfare of a patient.
(b) In accordance with the provisions of the Medical Practice Act, N.J.S.A. 45:9-1 et seq. , any major surgical procedure shall only be perfomed by a duly qualified surgeon with a duly qualified assisting physician, or a duly qualified surgical resident in a training program approved by the Educational Council of the American Medical Association or the American Osteopathic Association, except in matters of dire emergency. It shall be the responsibility of each medical staff to promulgate appropriate rules and regulations in this regard and the medical staff and hospital board of trustees shall assure compliance by the individual physicians.
(c) A duly qualified surgeon, duly qualified assistant physician, and duly qualified resident shall be determined by the hospital credentials committee in conjunction with the chairman or chief of the appropriate department or division consistent with the requirements of the Medical Practice Act, N.J.S.A. 45:9-1 et seq. It shall be the responsibility of each medical staff to promulgate appropriate rules and regulations in this ...