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Tufo v. J.N.

Decided: November 17, 1993.

ROBERT J. DEL TUFO, ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
J.N., M.D. AND B.C., M.D., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Essex County.

King, Havey and Ariel A. Rodriguez. The opinion of the court was delivered by Havey, J.A.D.

Havey

The central question raised by this appeal is whether, during an investigation of a physician-licensee conducted by the Attorney General on behalf of the Board of Medical Examiners (Board), the Board's medical director may directly question the licensee. The Law Division Judge held that since the Board may investigate a licensee only through the Attorney General, any questioning of the licensee must be undertaken by the Deputy Attorney General (DAG) who is conducting the hearing. We reverse. We hold that the medical director has the implied power to question a licensee during such an investigation under narrowly circumscribed circumstances.

Defendants J.N. and B.C., medical doctors,*fn1 are employed by Princeton BioCenter P.A., which treats residents at Earth House, a boarding home in Somerset. Earth House offers residential treatment to persons suffering from schizophrenia and other mental illnesses, consisting of exercise, diet, nutrient supplementation and behavior modification. Princeton BioCenter provides medical care termed "orthomolecular," an integral part of the Earth House program, defined as "metabolic and nutritional interaction."

Following a preliminary inquiry during which the director of Earth House was questioned, the Attorney General determined that the medical care rendered by physicians at Princeton BioCenter required further scrutiny. Accordingly, pursuant to the Uniform Enforcement Act (UEA), N.J.S.A. 45:1-18b, the Attorney General initiated a formal investigation. The DAG in charge of the inquiry subpoenaed defendants for the purpose of their appearance at the office of the Attorney General to give testimony under oath. Present during the hearing were two Deputy Attorneys General, the Board's medical director, William I. Weiss, M.D., defendants, their attorney and an attorney for Princeton

BioCenter. During the course of the hearing DAG Lewis requested the assistance of Dr. Weiss in questioning Drs. J.N. and B.C. The DAG requested that Dr. Weiss be permitted to ask questions directly of the physicians concerning the tests performed at Princeton BioCenter for allergies, nutrient deficiencies and other problems, as they related to specific patients. She insisted that the medical director, as her consultant, be permitted to question "in [these] areas where I am not an expert." Defendants' attorney objected, noting that Dr. Weiss was not an attorney and thus his active participation in the questioning would constitute the unauthorized practice of law. Counsel also argued that Dr. Weiss was not a voting member of the Board, and had not been authorized by the Board to question the defendants.

Pursuant to N.J.S.A. 45:1-19, the Attorney General initiated a summary proceeding in the Law Division to compel Drs. J.N. and B.C. to answer the questions put to them by Dr. Weiss. The Law Division Judge dismissed the Attorney General's complaint in its entirety, reasoning that under the UEA, the Board has no independent power to investigate a licensed physician. N.J.S.A. 45:1-18b provides that when it appears any licensee is engaged in an unlawful practice "the board or the director [of the Division of Consumer Affairs] through the Attorney General, or the Attorney General acting independently" may, as part of an investigation, examine any person under oath in connection with the suspected unlawful practice. The Law Division Judge reasoned that since there was no comma in the pertinent language of N.J.S.A. 45:1-18 separating "the board" from "or the director," the Legislature intended that the Board be permitted to investigate only through the Attorney General. Consequently, he concluded, the medical director, as a representative of the Board, had no independent power to interrogate the licensees.

The Attorney General first asks us to address the broad holding pronounced by the Law Division Judge that the Board, as well as all other licensing boards, have no independent power to conduct an investigation of a licensee without the participation of the

Attorney General. While we may question the correctness of the Judge's holding, we need not address the issue, since this is not a case where the Board is conducting an independent investigation of a physician; it is an investigation initiated by the Attorney General on behalf of the Board.

Consequently, the narrow issue is whether, during an investigation conducted by the Attorney General, the DAG may delegate to the medical director the right to ask a licensee specific questions requiring medical expertise. That question is answered by reference not only to the UEA, but also to pertinent provisions of the Medical Practice Act (MPA), N.J.S.A. 45:9-1 to -27, and the legislative purposes of both statutes. The statutes must also be read in pari materia, since they overlap in their purpose, namely, defining the methods of investigating and conducting disciplinary proceedings involving professional licensees. See Miller v. Passaic Valley Water Comm'n., 259 N.J. Super. 1, 12, 611 A.2d 128 (App.Div.), certif. denied, 130 N.J. 601, 617 A.2d 1222 (1992).

The MPA creates the Board of Medical Examiners, N.J.S.A. 45:9-1, whose overall task is to regulate the practice of medicine and allied professions. Brodie v. New Jersey Bd. of Med. Examiners, 177 N.J. Super. 523, 529, 427 A.2d 104 (App.Div.), certif. denied, 87 N.J. 386, 434 A.2d 1068 (1981). To that end, the MPA grants comprehensive supervisory powers to the Board, including subpoena power to compel attendance at Board hearings, and to seek penalties for failure to appear or to give testimony. N.J.S.A. 45:9-2. It also has broad rule-making powers to ...


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