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Hirsch v. New Jersey State Board of Medical Examiners

Decided: December 20, 1991.

STUART A. HIRSCH, M.D.; THE MEDICAL SOCIETY OF NEW JERSEY; AND THE NEW JERSEY SOCIETY OF OSTEOPATHIC PHYSICIANS AND SURGEONS, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, DEFENDANT-RESPONDENT



On appeal from State Board of Medical Examiners.

Coleman, J.h., Bilder and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

This is an appeal from the decision of the New Jersey State Board of Medical Examiners (Board) requiring physicians and podiatrists, as part of their biennial license renewal application,

to answer certain questions which some licensees found to be objectionable. The pivotal issue raised in this appeal is whether a licensee can assert the Fifth Amendment right against compelled self-incrimination without risking suspension of his or her medical license.

I

The controlling facts are not disputed: On or about June 1, 1991, the Board mailed a biennial license renewal application form to each physician and podiatrist licensed to practice medicine in New Jersey. See N.J.S.A. 45:1-7 and N.J.S.A. 45:9-6.1. Plaintiff Hirsch, a medical doctor licensed to practice in New Jersey with offices in Bridgewater, objects to some of the questions propounded. Similarly, plaintiffs Medical Society of New Jersey and New Jersey Society of Osteopathic Physicians and Surgeons, which jointly represent approximately 10,500 physicians licensed in the State, objected to some of the questions. The Board considered the objections and modified many of the questions and subparts.

Still dissatisfied with the modified questions, plaintiffs filed a notice of appeal on June 26, 1991 and sought emergent relief from this court. On June 27, 1991 we granted a stay as to questions 8, 9(a), (b), (d), (e), (f) and (g). We also granted a stay as to 9(c) to the extent of the inclusion of the words "arrested, charged or." Following our June 27 order, the Board modified questions 8 and some parts of question 9. Pursuant to our stay, some licensees have not answered the questions propounded in the 1991 biennial application for license renewal. As to those who answered, we directed in the June 27 order that their answers remain confidential and that no action or investigation be undertaken based on the answers to the objectionable questions.

On this appeal, plaintiffs contend that: (1) "questions 8 and 9 impair the legitimate, protected interest of physicians, as well as the public at large," and (2) "the Board is seeking to use the

application [renewal] process as an investigatory dragnet in abuse of its authority."

The latest version of questions 8 and 9 was served by the Board on plaintiffs on July 12, 1991. Those questions read as follows:

Question 8:

a. Has your license to practice medicine been conditioned, curtailed, limited, suspended or revoked in any way by any state medical licensing agency?

b. Have your privileges to practice medicine at any HMO, hospital or health care facility been conditioned, curtailed, limited, suspended or revoked?

c. Has your right to participate in Medicaid or Medicare been conditioned, curtailed, limited, suspended or revoked in any way?

d. Has your federal or state registration to prescribe, dispense or administer controlled dangerous substances been conditioned, curtailed, limited, suspended or revoked in any way by either the federal Drug Enforcement Agency or any state drug enforcement agency?

Question 9:

a. i. Is any disciplinary action pending against you now by any state medical licensing agency?

ii. Is any action related to your conduct or patient care pending against you now at any HMO, hospital or health care facility?

iii. Is any action pending against you now by Medicaid or Medicare?

iv. Is there any action pending against you now by either the federal Drug Enforcement Agency or any state drug enforcement agency?

b. i. Have you ever been permitted to resign or surrender your license to practice medicine while under investigation or while disciplinary action was pending against ...


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