On appeal from the State Board of Medical Examiners.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.
[182 NJSuper Page 457] Respondent Mario E. Jascalevich, a physician, appeals from an order of the New Jersey Board of Medical Examiners (Board) revoking his license to practice medicine and surgery in this State. We affirm.
These proceedings were commenced by a complaint brought against respondent by the Board charging him with various acts alleged to constitute fraud in the practice of medicine, gross malpractice or gross neglect endangering the health and life of named patients and professional incompetence. See N.J.S.A. 45:9-6, 45:9-16(h), 45:9-16(i). Although the original and supplemental complaints were in 13 counts, only 7 were pursued. The first six of these counts related to Dr. Jascalevich's management of his patient, Julio E. Echeverria. The last, count XIII, related to his record-keeping responsibilities in respect of another patient, Themis Revis. Thirty-three hearing days were devoted to these proceedings by the specially designated hearing officer who thereafter filed an exhaustive statement of factual findings and recommendations.
The hearing officer's ultimate factual finding was that Dr. Jascalevich had deviated from applicable standards of professional practice and conduct. It was his conclusion, however, that these deviations amounted only to ordinary negligence and did not constitute gross malpractice, neglect or incompetence. It was, therefore, his recommendation to the Board that there was no adequate basis for the suspension or revocation of Dr. Jascalevich's license. The Board, in its review of the massive hearing record, generally accepted the hearing officer's basic findings of fact. It rejected, however, his characterization of respondent's conduct as ordinary negligence and determined that the acts he had been found to have committed constituted gross malpractice, negligence and incompetence within the statutory intendment. It also found him to lack the good moral character requisite for the practice of medicine. Accordingly, it ordered the revocation of his license.
The parties do not generally challenge the hearing officer's extensive basic findings. It is in any event clear that they are not only supported by sufficient credible evidence in the record as a whole but also that they are expressed with consummate clarity and completeness. We, accordingly, rely on them to the same extent as did the Board and respondent.
Before considering the substance of these findings and respondent's appellate challenges to the proceedings, there is a preliminary matter we must address. The hearing officer was of the view that these disciplinary proceedings against a physician were subject to a clear-and-convincing standard of proof. His factual findings, therefore, accorded with that standard. The Board, although it noted its disagreement as to the appropriate proof standard and its belief that a preponderance standard generally applied, nevertheless concluded that the distinction in standards was not here relevant since, in accepting the hearing officer's factual findings, it was also thereby necessarily accepting the proof standard pursuant to which those findings were made. This observation under the circumstances here is fair and accurate. We are, therefore, satisfied that Dr. Jascalevich did receive the benefit of that higher standard of proof which, following the conclusion of the proceedings here, was held by us to be required in physician disciplinary proceedings. In re Polk License Revocation , 178 N.J. Super. 191 (App.Div.1981). Dr. Jascalevich's argument to the contrary is, therefore, without merit.
With respect to the substantive findings, we consider first the charges relating to the patient Echeverria. Dr. Jascalevich removed Echeverria's gall bladder on July 26, 1974, in an apparently routine and unexceptionable operation performed at Christ Hospital in Jersey City. Echeverria did not, however, recuperate well and within several days of the surgery had developed such symptoms as weakness, pain, fever and large amounts of bile draining through the surgical wound. Accordingly, respondent performed a second surgical procedure on August 2, 1974, in which he drained the excess bile from the abdominal cavity. Both the pre- and post-operative diagnosis was subhepatic abscess. In his report of the second operation, which Dr. Jascalevich did not dictate until August 16, 1974, he noted various observations not made during the course of the first operation, including "several lymph nodes palpable in the area of the pancreas" and a "mass in the pancreatic region
which was considered to be too hazardous to biopsy." He concluded that "carcinoma in this patient cannot be ruled out on the basis of these findings." Dr. Jascalevich discharged Echeverria from the hospital on August 12. Three days later, on August 15, Echeverria visited Dr. Jascalevich in his office because of the continuing excessive drainage. Dr. Jascalevich aspirated the wound. After so doing he showed Echeverria a piece of tissue which purportedly came from the wound and which he then purportedly sent to the pathology department of the hospital for analysis and report. The pathology report was dated August 16 and its results telephoned that day to Dr. Jascalevich. According to the report, the Echeverria sample was "fibrodipose tissue showing infiltrating, hornifying, well differentiated squamous cell carcinoma." Dr. Jascalevich never, however, treated Echeverria for cancer nor referred him to an oncologist.
Apparently, and despite the cancer diagnosis, Echeverria made relatively good progress on routine antibiotic and other medication until early December 1974, when he was again admitted to Christ Hospital complaining of abdominal pain. Diagnostic tests failed to disclose evidence of any intrinsic biliary disease and, after conservative treatment with antibiotic medication, Echeverria improved sufficiently to be discharged in about a week. There was nothing in the report of this hospitalization suggesting that Echeverria was suffering from any form of cancer. In April 1975 Echeverria was admitted to Jersey City Medical Center again complaining of abdominal pain and jaundice. Dr. Jascalevich's admission note was "obstructive jaundice probably due to recurrence of carcinoma of bile duct diagnosed at time of admission to Christ Hospital." Shortly after the admission Dr. Jascalevich performed a third operation, this one a common duct bypass. Although Echeverria's recuperation from this operation was slow and difficult and his consequent hospitalization lasted three months, the bypass proved to be the solution of his biliary tract problems as they had evolved, and he ultimately made a good recovery. It was, by this time, clearly
demonstrated that he never did have any biliary tract cancer. This was apparently obvious when the bypass operation was performed in April and was, furthermore, confirmed the following May as a result of further diagnostic tests ordered by respondent's associate who had taken over Echeverria's case while respondent was on vacation and who had questioned the cancer diagnosis on a clinical basis. Dr. Jascalevich's operative report of the April 1975 surgery, was not, however, dictated until some six months later, in October 1975. The report stated, in part, that
Upon entering the abdomen a careful abdominal exploration was done. The patient was jaundiced, so we paid particular attention to the area of the duodenum and the pancreas and the common duct. Palpation of this area revealed tumor mass at the level of the junction of the common duct with the pancreas which was the possible neoplasm. Please note that this patient had a pathologic report, after cholecystectomy done at Christ Hospital about five months ago, showing histologically this patient's problem was carcinoma. Considering that this was probably an advanced growth, we decided then to do a by-pass of this common duct obstruction . . . this choledochoduodenostomy was performed without difficulty . . . .
The thrust of the Board's case against Dr. Jascalevich in respect of his management of Echeverria's case was that Dr. Jascalevich never believed that Echeverria had cancer; that he himself had fabricated the cancer indicia, and that he had failed, during the nine-month lapse between the gall bladder removal and the performance of the common-duct by-pass, to attempt any genuine diagnosis and effective treatment of Echeverria's continuing biliary tract problems, thereby endangering his life and health. The underlying implication was that the cancer diagnosis was invented by Dr. Jascalevich to explain the consequences of some mishap in the original operation, most likely an inadvertent nick of the common duct. Accordingly, the gravamen of count I of the complaint was that Dr. Jascalevich had knowingly misrepresented in the operative record of the second surgery that he had observed a mass in the pancreatic region. Count II charged him with submitting to the Christ Hospital pathology department a tissue sample which he knew was not Echeverria's but which he falsely represented to have come from
Echeverria's gall bladder bed. Count III was essentially the same as count II but named the other patient from whom respondent had allegedly taken the tissue sample which he represented to be Echeverria's. Count IV charged that in any event Dr. Jascalevich knew or should have known that the pathology report heretofore referred to could not have represented accurate findings concerning Echeverria. Count V charged Dr. Jascalevich with falsifying Echeverria's hospital records and with failing to provide Echeverria with an appropriate course of treatment. Finally, Count VI charged Dr. Jascalevich, in respect of the bypass surgery, with making a knowingly false preoperative diagnosis and a knowingly false post-operative record.
Despite the introduction of ample evidence tending to sustain the allegations of the first three counts, the hearing officer concluded that they had nevertheless not been proved by a clear and convincing standard. In effect, then, the hearing officer declined to find that any knowing or conscious action on Dr. Jascalevich's part produced that erroneous pathology report. What he did find, however, in sustaining the factual allegations of Count IV, was that whether or not Dr. Jascalevich was himself implicated in switching or misrepresenting tissue samples or in any other improper act resulting in the ultimate production of that report, nevertheless the contents of that report were at such odds with the known facts concerning Echeverria as to render it manifestly unlikely that the tissue which was the subject of the pathology report could have been tissue actually taken from Echeverria. The expert testimony was indeed overwhelming that, as applied to Echeverria, the pathology report was "bizarre" since carcinomas at the abdominal site from which the tissue purportedly came are typically adenocarcinomic in nature and ...