On appeal from New Jersey State Board of Medical Examiners.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Holston, Jr.
This is an appeal from a final decision of the Board of Medical Examiners revoking appellant's license to practice medicine and surgery based on findings that he solicited a loan from an infirm patient, harassed the patient and her brother to pressure her to change her account of his attempt to borrow money, and failed to document medical treatment he rendered to the patient when he solicited the loan and attempted to pressure her to change her account of that solicitation.
Before the conduct that has now resulted in revocation of appellant's medical license, the Board suspended appellant's license in 1997 for a minimum of five years for borrowing nearly one million dollars from approximately one hundred patients, less than 15% of which was paid back despite an order by the Board for full restitution. Both the conduct that resulted in the prior suspension and the solicitation of a loan and other professional misconduct that have now resulted in revocation of his license were due to appellant's need for money arising out of his addiction to gambling. One of the primary conditions the Board imposed upon the reinstatement of appellant's license was that he would not under any circumstances "engage in any financial transaction whatsoever" with any present or former patient.
After an evidentiary hearing, an Administrative Law Judge (ALJ) found that appellant solicited a $10,000 loan from a patient who came to him for medical treatment, that this solicitation violated the Board's prior orders prohibiting appellant from engaging in any financial transactions with patients, that appellant had failed to prepare and maintain true patient records, and that appellant had "approached [the patient] at her home on numerous occasions in attempts to persuade her from further reporting the incident and/or giving statements or testimony that would further hurt or endanger his position." Nevertheless, the ALJ concluded that a two-year suspension of appellant's license would be a sufficient sanction for this professional misconduct.
The Board of Medical Examiners accepted most of the ALJ's recommended factual findings. The only finding with which the Board disagreed related to the harm to the elderly patient resulting from appellant's professional misconduct. In finding that the ALJ's finding did not reflect the full magnitude of that harm, the Board stated:
[Appellant] abused and capitalized on his position as her doctor to exploit [the patient]. He harassed her even while taking her blood pressure at home in response to a fear as her treating physician that she had a heart condition and would have a stroke. Despite being aware of her condition and previous diagnosis of cancer he persisted in repeatedly violating her privacy by attempting to intrude on her at home. All the while she testified she stayed in her house as he banged on her door and peered in her window, and [appellant's] conduct did not cease even after his attorney told him to stop and her brother came to her rescue until the police intervened.
Although the Board agreed with most of the ALJ's recommended factual findings, it concluded that in view of appellant's prior suspension for similar professional misconduct, his failure to address adequately the gambling addiction that gave rise to that misconduct, and his violation of the prior Board order prohibiting him from engaging in any financial transactions with patients, the appropriate sanction was revocation of his medical license. In reaching this conclusion, the Board stated:
[O]ver many years [appellant] took advantage of unsuspecting patients by borrowing close to one million dollars to support a gambling addiction and did not make it a high priority when he had extra funds to significantly reduce his debt to the patients he took money from. He then relapsed into gambling and once more attempted to take advantage of a vulnerable patient. . . .
[Appellant's] behavior in his repeated exploitation of vulnerable patients is so reprehensible, and his failure to make it his mission to significantly reduce the amount of financial restitution while enjoying a comfortable lifestyle so inexcusable that his behavior impacts adversely on the reputation of the entire New Jersey medical profession. [Appellant's] conduct was so egregious as to be the antithesis of "do no harm." He harmed a frightened elderly infirm patient. . . . We find that [appellant's] secreting information about his addiction from his family, colleagues, and sponsors demonstrates the public cannot be protected if he practices medicine. His attempt to again violate the trust of his patients, and his selfish campaign to badger an elderly woman into recanting her complaint, coupled with his return to gambling, is deserving of the most severe sanction. Trust must be the foundation of the physician patient relationship. [Appellant] has repeatedly and callously violated that trust.
Therefore, we find that no measure short of revocation of license adequate to address [appellant's] actions. The Board, in its prior discipline of [appellant] had balanced the safety of the public with the goal of restitution to the nearly 100 patients he exploited. Hence prior Orders have allowed [appellant] to practice with what we felt were adequate safeguards in place so that [appellant] could repay those he defrauded with his income as a physician. However, [appellant] has demonstrated that no safeguards-not a monitor, not therapy, not ...