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In re Demarco

Decided: June 2, 1980.


On certification to the Superior Court, Appellate Division.

For reversal and reinstatement in part -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford and Handler. For affirmance -- Justices Schreiber and Pollock. The opinion of the Court was delivered by Wilentz, C.J. Schreiber, J., dissenting. Justice Pollock joins in this dissent.


The sole issue before us is whether a statute which penalizes offenses by physicians was intended to result in a penalty totaling $200 for all offenses, no matter how many or how different, before a first conviction is obtained, or $200 for each such offense. Put differently, the sole issue is whether N.J.S.A. 45:9-22 authorizes the State Board of Medical Examiners (the Board) to impose multiple penalties upon an initial finding of multiple violations. We hold that it does.

The primary charge against respondent was that he caused 92 cases of hepatitis among his patients by using improperly sterilized needles and syringes. The Assistant Commissioner of Health described this as the largest outbreak of hepatitis ever associated with a single physician's practice in the entire world.

The needles and syringes were used to inject the patients with Procaine PVP (PVP), a drug developed and patented by DeMarco. He prescribed and administered PVP for a variety of diseases, conditions and ailments, including vascular problems, strokes, heart diseases, arthritis, multiple sclerosis, lupus, slipped disc, gangrene, depression, Parkinson's disease, kidney problems, psoriasis, tic douleureux, diabetes, dermatitis, failing vision, ulcers, bullet wounds, headaches and menopause. He also administered it prophylactically, apparently as a general health measure. He had sought approval of the drug from the United States Food and Drug Administration (FDA), but the FDA rescinded the temporary authorization it had granted DeMarco to test PVP in 1965, because of concern over the drug's reported carcinogenic qualities. Nevertheless DeMarco continued to use the drug. His practice became almost exclusively one of administering intramuscular injections of PVP. Almost invariably, he would prescribe ten daily injections to be followed by an indeterminate course of bi-weekly injections.

In 1968, the Board ordered him to cease and desist the use of PVP, describing it as "a potentially dangerous drug that may be

medically and scientifically unsafe." The Board did not enforce this order, however, and DeMarco continued his injections. He used non-disposable, resterilized needles and syringes. Although most present-day doctors prefer to avoid potential sterilization problems by using disposable needles and syringes (at a unit cost of three or four cents), proper sterilization of reusable needles and syringes is easily possible. An investigator for the Board testified, however, to seeing brownish incrustations on DeMarco's needles and syringes. He also noted that the tray used to hold this equipment was too large to fit in DeMarco's autoclave (a sterilizing device), that the autoclave was not regularly tested for efficacious sterilization, that the needles and syringes were left lying about unwrapped after having been autoclaved, and that needles and syringes tested after sterilization showed bacterial growth indicating contamination. DeMarco used the same syringe and even the same needle on numbers of patients without sterilization between uses. To give an injection, at the period surrounding the hepatitis outbreak, he would fill a syringe from a large bottle of Procaine PVP through a tube and needle which remained attached to the bottle. Upon removing the filled syringe, he would attach a needle and inject the patient. He was not, as one of his patients testified, "a man for washing his hands." Thus, infection could have been transmitted by contamination of the bottle of Procaine PVP from the used syringe, or could have been passed from one patient to another on an unsterilized or improperly sterilized syringe or needle.

In July 1976, a number of cases of hepatitis among DeMarco's patients were reported by other physicians to the New Jersey Department of Health. Although all physicians are required to make such reports, DeMarco never reported a case of hepatitis and in fact told at least one patient that PVP would take care of his hepatitis. As a result of the spate of hepatitis reports, the Board obtained an order from the Commissioner of Health that DeMarco cease and desist using needles and syringes for any

purpose and make his equipment, inventory and records available for inspection. On August 26, 1976, the Board suspended DeMarco's license to practice medicine and surgery in New Jersey pending a hearing.*fn1

The hearing was on a complaint seeking penalties and revocation of DeMarco's license. It began in March 1977 and spanned several months. The hearing examiner concluded that DeMarco was guilty of gross malpractice and gross neglect in the practice of medicine which had endangered the health and lives of patients, in violation of N.J.S.A. 45:9-16, and had been causally associated with the deaths of two of his patients.

The hearing officer recommended that DeMarco's license be revoked*fn2 but that no civil monetary penalties be imposed. On January 13, 1978, the Board, finding that DeMarco had caused the 92 reported cases of hepatitis among his patients by using improperly sterilized needles and syringes, permanently revoked DeMarco's license and imposed a penalty of $20,200. This penalty reflected $200 penalties for each of the 92 cases of

hepatitis, totaling $18,400, and $1,800 reflecting other counts in the complaint against DeMarco.*fn3 On DeMarco's appeal the Appellate Division affirmed the permanent license revocation, but reduced the penalty from $20,200 to $200. Since the present proceedings were the first ever initiated against DeMarco, the court concluded that such amount was the maximum that could be imposed under the "first offense" language of N.J.S.A. 45:9-22, which provides:

Any person . . . 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. . . .

We denied DeMarco's petition for certification, in which he sought review of the license revocation, but granted the Board's petition in order to review the Appellate Division's modification of the penalty imposed. 81 N.J. 355 (1979). For the reasons stated herein, we reverse and reinstate the penalty imposed by the Board of Medical Examiners.

Our construction of the statute is based on the clear legislative intent to deter and punish physicians who would risk the health and lives of patients through gross malpractice. To construe it so as to impose a total penalty of $200 for 92 life-threatening violations would be to drain it of all strength.

That the Legislature has a deep interest in the regulation of that profession which protects life and health is obvious, as is its similar interest in insuring compliance with the regulatory statute through various deterrent provisions. The statutory framework reflects this intent through both regulatory and disciplinary provisions, including the power given to the Board to revoke a physician's license. See, e.g., N.J.S.A. 45:9-1 through -3; 45:9-16, -22, -23, -26 and -27.4. This power to revoke is

complemented by the power to impose penalties for any violation of the chapter, and there is no indication, nor any reason to believe, that penalties were intended to be any less important as a deterrent than the possibility of revocation.

The statutory provisions concerning penalties begin with N.J.S.A. 45:9-22. That section subjects a physician who violates " any of the provisions" of the chapter to a penalty of $200 "for the first offense." If after conviction, he is again convicted of "another violation" of the chapter or of continuing the first violation for which he was previously convicted, the penalty becomes $500. N.J.S.A. 45:9-26. If there is still "another violation," or if he continues the original violation, the penalty is $1,000. Id. The legislative language is perfectly suited to the situation of a physician who violates the act on three separate occasions over a period of time. Once convicted of his first violation and fined $200, the physician is on notice that his next violation will result in a stiffer penalty ($500) and that each violation thereafter will bring an even heavier fine ($1,000). The statutory scheme, in this typical situation, will achieve both punishment and deterrence: the repeating offender is punished more harshly with each offense and the non-offender deterred by knowledge that any offense will lead to an increase in potential penal liability.

This language, however, is less apt where multiple violations, whether related or not, occur before the first conviction. The $500 penalty (N.J.S.A. 45:9-26) is authorized when there has been a prior conviction. The language is as follows:

In case a person shall, after conviction of any violation of this chapter or any supplement thereto, be again convicted of another violation thereof . . . such offender shall be liable to a penalty of $500 . . ..

That the $500 penalty is inapplicable to any violation not preceded by a conviction is so clear as to admit of no other construction. Respondent, ...

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