On appeal from a Final Order of the State Board of Medical Examiners.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Bischoff, P.J.A.D.
[194 NJSuper Page 240] Appellant Donald R. Cole, M.D. appeals from the final order of the Board of Medical Examiners revoking his license to practice medicine and surgery in New Jersey.
On March 3, 1983 a complaint was filed with the Board of Medical Examiners (Board) charging that the license of Donald R. Cole to practice medicine in New York was revoked by the Commissioner of Education in that State because he had been found "guilty of the fraudulent practice of medicine, and negligence and incompetence in the practice of medicine in the treatment of seven cancer patients; and wilfully or grossly negligent failure to comply with federal and state law in the administration of unapproved drugs, and failure to keep accurate records of two of these cancer patients." The complaint charged this revocation was for reasons consistent with N.J.S.A. 45:1-21 and, as such, constituted grounds for disciplinary action against appellant pursuant to N.J.S.A. 45:1-21(g). The complaint sought an order suspending or revoking the license of Dr. Donald R. Cole.
Appellant filed an answer to the complaint admitting his license to practice medicine and surgery had been revoked in New York but denied the violation of any of the laws of the State of New Jersey.
A hearing was held on the complaint before the Board on April 13, 1983, at which time evidence of the New York revocation was received. The Board ruled the New York order of revocation was sufficient on its face to establish grounds for sanction under N.J.S.A. 45:1-21(g) and that such New York action was based on conduct which was grounds for sanction in New Jersey under N.J.S.A. 45:9-16(h), (i), N.J.S.A. 45:9-6 and N.J.S.A. 45:1-21(b) through (e). The hearing continued with respect to a determination of the penalty to be levied. At this hearing appellant testified and he produced the testimony of two physicians as character witnesses, as well as five of his current patients. After consideration of the record in executive session, the Board announced the revocation of Dr. Cole's license to practice medicine and surgery in New Jersey.
On this appeal Dr. Cole argues that N.J.S.A. 45:1-21, the statute relied upon by the Board, is inapplicable since N.J.S.A.
45:1-15 et seq. became effective on July 13, 1978 while the objectionable conduct which was the basis for the New York revocation occurred between 1976 and 1978. He argues that the proper statute for the Board's proceeding would be N.J.S.A. 45:9-16.
N.J.S.A. 45:9-16, in pertinent part, reads:
45:9-16. Refusal to grant, suspension or revocation of license, or registration of certificate or diploma; grounds; procedure; relicense.
The board may refuse to grant or may suspend or revoke a license or the registration of a certificate or diploma to practice medicine and surgery or chiropractic filed in the office of any county clerk in this State under any act of the Legislature, upon proof to the satisfaction of the board that the holder of such license . . . (h) has been guilty of gross malpractice or gross neglect in the practice of medicine which has endangered the health or life of any person, . . .
That statute pertains to a situation where a physician licensed in New Jersey is charged with conduct sufficient to warrant revocation of his license irrespective of similar action taken in a sister state. Proceedings under that statute require a de novo hearing at which the State must establish by a preponderance of the evidence the charges against the physician. In re Matter of Polk, 90 N.J. 550, 560 ...