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Brayshaw v. Gelber

Decided: April 6, 1989.

DAVID D. BRAYSHAW, PLAINTIFF-RESPONDENT,
v.
JOAN D. GELBER, DEFENDANT-APPELLANT



On Appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Michels, Muir, Jr., and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

We granted leave to defendant Joan D. Gelber, a Deputy Attorney General of the State of New Jersey, to appeal from an order of the Law Division that denied her motion for summary judgment in this defamation action instituted by plaintiff David D. Brayshaw.

A brief review of the background and chronology of events giving rise to this appeal is helpful to an understanding of its resolution. This action arises out of an administrative proceeding to revoke the medical license of plaintiff's wife, Dr. Nora Brayshaw. Defendant is the Deputy Attorney General assigned to prosecute the case against Dr. Brayshaw for the New Jersey Board of Medical Examiners (Board). Dr. Brayshaw is a psychiatrist licensed by the Board and her practice is based at The Biopsychiatry Center in Watchung, New Jersey. A significant portion of her practice involves the treatment of psychiatric disorders, such as panic, depression and Premenstrual Syndrome (PMS), with thyroid replacement therapy. Under this therapy, Dr. Brayshaw prescribes a thyroid supplement such as Synthroid, a synthetic thyroid hormone. Dr. Brayshaw's decision to treat patients with a thyroid hormone is founded upon her belief that the patient's psychiatric problems are medical or biological in origin. Specifically, Dr. Brayshaw believes that

many of her patients suffer from various thyroid disorders such as hypothyroidism, a diminished production of thyroid hormone leading to thyroid deficiency.

Plaintiff, an attorney admitted to practice in New York and California, participated in the analysis and observation of Dr. Brayshaw's patients and coauthored several medical articles relating to the thyroid replacement therapy. Plaintiff is also the president of DNB Laboratories, Inc. (DNB), a New Jersey corporation that is wholly owned by the Brayshaws.

As of February 1987, the Board had received complaints about Dr. Brayshaw from a former patient and also from several physicians who had treated individuals previously under the care of Dr. Brayshaw. These complaints were referred to the Enforcement Bureau of the Division of Consumer Affairs which began an investigation into whether Dr. Brayshaw had "prescribed thyroid hormone without medical justification and/or in inordinate amounts and/or without proper follow-up" care. The investigation, under defendant's supervision, revealed that Dr. Brayshaw had maintained certain patients on the thyroid hormone in spite of indications of thyroid toxicity.

In early May 1987, Dr. Brayshaw substantially complied with a subpoena ordering her to produce records for 25 patients who the investigation indicated may have received improper treatment. A second subpoena was served on Dr. Brayshaw on May 4, 1987. This subpoena ordered production of the medical records of 34 PMS patients referred to in a letter in the May 1987, issue of Women's Sports and Fitness. The magazine article, in pertinent part, read as follows:

[D]octors Nora and David Brayshaw of the Biopsychiatry Center in Watchung, New Jersey, reported that thyroid supplements had cured an entire group of 34 PMS patients. The treatment program arose out of earlier research in which the Brayshaws studied the thyroid functions of 66 women. Fifty-one of the 54 women who had reported premenstrual problems were found to have some sort of thyroid dysfunction, while the 12 women who were symptom-free had no thyroid abnormalities.

In response to the second subpoena Dr. Brayshaw indicated that the 34 patients were selected anonymously from a group of

100 patients listed on a computer disc that subsequently had been "overwritten with new patient information." Dr. Brayshaw stated that she maintained medical records on all of her patients, but was "not able to ascertain which patient records [were] required by the subpoena" due to the nature of the patient selection method used for the study. Consequently, Dr. Brayshaw was unable to comply with the subpoena.

On August 11, 1987, Dr. Brayshaw voluntarily appeared with counsel and plaintiff for a sworn statement regarding the matters under investigation by the Board. During the course of this meeting Dr. Brayshaw testified that after she determines that a patient requires thyroid function testing, she informs the patient that there are "only a few [laboratories] that can do some of the testing," and she recommends that the patient have the testing done at DNB.

Following Dr. Brayshaw's testimony, plaintiff testified as to the workings of DNB. According to plaintiff, DNB is a corporation set up solely to do testing for Dr. Brayshaw's patients. DNB, however, has no laboratory facilities and does no laboratory testing of its own. Instead, DNB employs nurses to draw the blood samples at Medi-Center facilities in Wayne. Thereafter, the samples are sent to various independent laboratories where the actual testing is done and the results are sent to DNB and "re-typed" on a DNB lab report form.

According to Dr. Brayshaw, the test results are transferred from the independent laboratory report form to the DNB form because the DNB form is easier to understand and allows for the inclusion of different or additional information such as a different test result normal range than the one provided by the independent laboratory. Presumably, the test result normal range is included on the lab form so the patient may see whether their test result falls within the "normal range" of results.

The patients pay one fee to DNB at the time the blood samples are taken. This fee is higher than the fee charged to

DNB by the independent laboratories. According to plaintiff, this increased fee is necessary because DNB must pay for the nurses and the Medi-Center facilities as well as the actual blood testing done by the independent laboratories.

On or about September 2, 1987, the Board served Dr. Brayshaw with a verified complaint seeking the temporary suspension of her medical license. The complaint charged generally that: (1) Dr. Brayshaw fails to maintain records of fees charged to patients; (2) Dr. Brayshaw fails to disclose her ownership interest in DNB to her patients; (3) DNB is an unlicensed laboratory and a "sham entity" that bills patients for services rendered by independent laboratories; (4) Dr. Brayshaw merely recopies test results from the independent laboratories onto DNB stationery and changes the normal reference ranges and explanatory material provided by the independent laboratories; (5) DNB charges test fees that are "in excess of the fees actually charged" by the independent laboratories; (6) Dr. Brayshaw "has no data in a form recognized as consistent with accepted standards of scientific research" to substantiate claims that she has performed research correlating PMS and depression to hypothyroidism and that these conditions can be treated with a thyroid supplement; (7) Dr. Brayshaw fails to maintain proper patient records; (8) Dr. Brayshaw does not perform physical examinations or clinical evaluations of patients before ordering laboratory tests and prescribing medication; (9) Dr. Brayshaw prescribes excessive dosages of thyroid supplement and fails to adequately respond to patients complaining of symptoms of thyroid toxicity in spite of "an admonishment issued on or about July 10, 1985, by the State Board of Medical Examiners for failure to be available to patients attempting to reach her," and (10) Dr. Brayshaw was negligent or incompetent in her treatment of 26 patients. The complaint included supporting affidavits from 12 physicians regarding 22 of the 26 patients described in the complaint. A supplemental complaint setting forth similar charges with respect

to an additional 15 patients was filed on November 25, 1987.

On September 9, 1987, a hearing was held before the Board to determine whether Dr. Brayshaw should be "temporarily suspended because of alleged gross malpractice and fraud with regard to her prescribing dangerous dosages of thyroid hormone to 26 patients." Dr. Brayshaw and plaintiff were present at the hearing. Dr. Brayshaw was not represented by an attorney at the hearing, but she was informed that she had the right to legal representation. She indicated that she was on her own and was "satisfied" to proceed without representation by an attorney.

At the conclusion of the hearing, the Board made a preliminary finding that Dr. Brayshaw's license should be temporarily suspended because her continued practice presented "a clear and imminent danger" to the public health. Thereafter, the Board issued an order temporarily suspending Dr. Brayshaw's license to practice medicine. In this order, the Board reiterated its finding that Dr. Brayshaw's practice presented a "clear and imminent danger to the public health." Specifically, the Board noted its concern that Dr. Brayshaw was "initiating patients on potent endocrine therapies without adequate physical exam, without appropriate monitoring and without personally responding to patients who evidence symptoms of thyrotoxic states."

The order provided, however, that Dr. Brayshaw would be permitted to resume her practice if she presented a plan wherein she agreed: (1) to refrain from prescribing any thyroid medication; (2) to perform adequate physical examinations, with proper documentation, before recommending endocrine treatment; (3) to refrain from altering a therapeutic plan initiated by another physician without first consulting with that physician; (4) to make herself personally available to respond to patient complaints in a timely manner or provide "appropriate coverage," and (5) to "cease and desist in operating DNB

Laboratories and any other successor laboratory." Dr. Brayshaw did not institute ...


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