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In re Wolfe

Decided: June 7, 1978.

IN THE MATTER OF THE SUSPENSION AND REVOCATION OF THE LICENSE OF GERALD L. WOLFE, D.O., TO MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY


On appeal from the New Jersey State Board of Medical Examiners.

Lynch, Bischoff and Kole. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Appellant Gerald L. Wolfe, D.O., was charged with violating the Medical Practice Act, N.J.S.A. 45:9-1 et seq. , essentially because he illegally permitted his wife to practice medicine without a license. He appeals from the final decision and order of the State Board of Medical Examiners (Board) contending that the Board erred in revoking his license to practice medicine and surgery and imposing fines in the amount of approximately $46,300. Specifically, he claims that (1) the procedures followed by the Board violated his right to due process; (2) the fine imposed exceeded that allowed by statute, and (3) the penalty assessed was grossly disproportionate to the wrongs committed by him.

The proceedings before the Board did not violate present-day concepts of procedural or substantive due process. Despite the Board's apparent failure to adopt specific rules of practice regarding license revocation hearings, appellant was sufficiently advised by a number of statutes of the procedure which would be followed. Laba v. Newark Bd. of Ed. , 23 N.J. 364, 382 (1957). N.J.S.A. 45:9-16 requires service of a copy of a complaint and a hearing before the Board in person or by an attorney before a medical license can be revoked. N.J.S.A. 52:14B-9 sets out specific requirements of the notice of the charges against a licensee. It also requires a reasonable opportunity for all parties to be heard, provides for a transcript of oral proceedings, requires that findings of fact be based exclusively on the evidence and on matters officially noticed, and provides other safeguards. N.J.S.A. 52:14B-10 deals with the rules of evidence, the permissibility of judicial notice, the requirements for recommended reports and decisions and the prerequisites for a final decision.

Moreover, our reading of the record satisfies us that nothing occurred during this hearing which deprived appellant of due process. Withrow v. Larkin , 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975).

After a hearing the Board concluded that appellant was guilty of conduct in his practice of medicine and surgery which constituted a violation of the Medical Practice Act, N.J.S.A. 45:9-1 et seq. , sufficient to warrant revocation of his license to practice medicine and surgery. We find that determination of the Board supported by sufficient credible evidence in the record, and we will not disturb it. In re Suspension of Heller , 73 N.J. 292, 309 (1977).

We turn our attention to the monetary penalties imposed. The Board, by order of May 9, 1977, in addition to revoking the license of appellant to practice medicine and surgery, assessed a penalty of $46,300. The Committee that conducted the hearing stated the basis for its recommendation of the penalty in the following manner:

The Committee therefore recommends that in addition to revoking respondent's license to practice medicine and surgery in the State of New Jersey, the Board assess a penalty in the amount of $43,400.00 for employing his wife for a minimum of 434 days to practice medicine and surgery in violation of N.J.S.A. 45:9-16(g) ($100.00 per violation); $1,900.00 for fraudulently advertising in violation of N.J.S.A. 45:9-16(d) as amended by N.J.S.A. 45:9-16(j) ($200.00 per year of violation); $600.00 for violating the provisions of N.J.A.C. 13:35-4.1 in conjunction with N.J.S.A. 45:9-16(j) ($200.00 per year of violation); $200.00 for fraudulently billing Medicare for services not rendered or non-compensable, in violation of N.J.S.A. 45:9-6; and $200.00 for fraudulently billing Amalia Groper for services not rendered in violation of N.J.S.A. 45:9-6.

The reason for imposing the penalties appears, in part, in the findings of fact and conclusions of law of the committee of the Board:

Any person commencing or continuing the practice of medicine and/or surgery * * * in this State * * * or any person, company or association who shall employ for a stated salary or otherwise, or aid or assist any person not regularly licensed to practice medicine and/or surgery * * * in this State, to practice medicine and/or surgery * * * or who violates any of the provisions of this chapter or any supplement thereto, shall be liable to a penalty of two hundred dollars ($200.00), for the first offense.

This statute makes no provision for the imposition of penalties for second or subsequent offenses. While N.J.S.A. 45:9-26*fn1 does provide for additional penalties for subsequent convictions or for continuing the violations of which the offender was previously convicted, this section of the statute is not applicable here. Since these statutes (N.J.S.A. 45:9-22; N.J.S.A. ...


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