On appeal from the Department of Law & Public Safety, Division of Consumer Affairs, State Board of Medical Examiners, Docket No. BDS 7297-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and Baxter.
Following a hearing before an administrative law judge ("ALJ"), the State Board of Medical Examiners ("the Board") suspended the medical license of appellant, Leonard Joachim, M.D., for a period of at least six months. The Board's discipline was based upon the ALJ's finding that appellant had improper sexual contact with a female patient in his office in 2003. In connection with the hearing's liability phase, the ALJ admitted, over appellant's objection, proof of sexual misconduct that he committed with a patient in 1992 and allegedly committed with a second patient that same year. The ALJ ruled that appellant's prior bad acts were admissible under N.J.R.E. 404(b) as proof of opportunity and motive.
Because the 1992 bad acts were improperly admitted under the cited exceptions to Rule 404(b), and because we cannot be confident that their prejudicial impact in this case--one which involves very substantial credibility issues--was inconsequential, we conditionally vacate appellant's suspension. The matter is accordingly remanded for a new hearing before the Office of Administrative Law ("OAL"), at which the prior bad acts shall be excluded from the liability proofs.
We summarize for purposes of our review the proofs. The Board's contentions revolve around appellant's interactions with an adult female patient, D.S. Appellant is a Board-certified New Jersey physician who practices internal medicine, with a specialty in pulmonary medicine. He has been licensed in this state since 1986. At the times relevant to this case, appellant worked for Sall/Myers Medical Associates ("Sall/Myers"),*fn1 treating patients at its offices in Paterson, Passaic, Irvington, and Newark. While at the Passaic office, appellant routinely used the same examining room there. He was forty-eight years old at the time of the events in question. D.S. is a married woman and an immigrant from Poland. Her native language is Polish. At the time she became a patient of appellant in 2003, D.S. was twenty-four years old.
On January 2, 2003, D.S. was injured in a motor vehicle accident. Her personal injury attorney, Kenneth Ryan, suggested that she seek treatment at the Sall/Myers office in Passaic. About two weeks later, on January 15, 2003, D.S. went to that office, where she was registered as a patient and was seen by appellant for the first time. She was examined by appellant again on March 7, 2003.
During these two initial visits, the dates of which are agreed upon by the parties, D.S. thought that appellant acted in a "normal" fashion. She was prescribed physical therapy, which she attended in the same building as appellant's Passaic office. During her follow-up visit on March 7, D.S. told appellant she was feeling nervous and had anxiety problems. Appellant referred her to a psychiatrist and also to a neurologist, but she was not prescribed anything by those two doctors.
Prior to her motor vehicle accident, D.S. had been employed cleaning supermarkets at night, but she lost that job because of her injuries. D.S. did not apply for disability or unemployment benefits. At the time of her initial visit at Sall/Myers in January 2003, she was out of work and in school learning English. In February 2003, D.S. started working at a tanning salon. She was employed there for approximately four months through May 2003.
The events of the third encounter between appellant and D.S. are hotly in dispute. Additionally, the details of that encounter have varied in D.S.'s ensuing descriptions of what happened. In essence, D.S. contends that appellant inappropriately caused her to touch him in a sexually gratifying manner during the course of her third visit to his office, and thereafter pursued her over the telephone and by driving past her residence.
D.S. first reported the alleged inappropriate encounter to the local police on April 5, 2003. She made that report at the urging of a friend, A.A. In that initial police report, D.S. stated that the incident with appellant in his office had occurred on March 14, 2003. She subsequently related the incident to her then-employer, Nicholas Nasarenko, and also to her attorney, Ryan.
On May 7, 2003, D.S. returned to the police station and brought a formal complaint against appellant. In this second account, D.S. stated that the office visit with appellant in which the inappropriate conduct occurred was either on March 23 or March 24, 2003. She described the events as follows:
I came there for my visit. [A] nurse took me to an examining room and gave me the gown and I put the gown [on], then the nurse left and [appellant] come in. He say I got to take my bra off, I leave my underwear. Then he tell me to lay down. I lay down and he check my breasts, my stomach, my back with his hands. Then he say he wants to check my blood pressure. When I looked down, he put the things for blood pressure on my right arm, and he say my blood pressure is high. He tell me he want to check it on the other hand, and he tell me to lay on the other side and he put the things for blood pressure on my arm. Then he pushed my hand to his penis, and I felt he penis is hard. After the exam was over, he asked me if I can give him directions to my home so he can check me at my house. I don't want to give him the direction, he gave me some prescription, some medication. When the visit is done, he come to me and kiss me in my mouth and hug me.
D.S. told the police that appellant thereafter called her twice and drove by her house:
The doctor called me one day like 3:15 PM, and asked me if he can come to my home to check me.*fn2 First, he asked me how I feel and I say I'm alright. Then he say he wants to come and check me at my home. I say I'm going for therapy today, and I say how late will you be in your office, and he say till 6:00. So I leave my home at 5:25 and I see the doctor driving in front of my home. Then I got message from him like five minutes after I see him. He said Hi D it's Dr. Joachim. Please call me back. Then I'm going to therapy, and I told another doctor, Dr. Mike and Dr. JC that I see Dr. Joachim in front of my home. I asked them if Dr. Joachim worked today, and they say he worked, but the morning hours.
D.S. stated to the police that these calls, and appellant's unexpected appearance by her house, took place on a Friday in April 2003.*fn3 She described the car that drove by her house that day as "a regular car" with "[four] doors" and "[d]ark blue or black" in color.
As a result of D.S.'s reports to the police, the Passaic County Prosecutor's Office convened a grand jury investigation into the matter. However, D.S. did not appear to testify, and the grand jury issued a "no bill." D.S. did not bring a civil action against appellant. However, her allegations of misconduct came to the attention of the Board and the Attorney General.
Subsequently, on June 30, 2003, the Attorney General filed with the Board an administrative complaint and an order to show cause against appellant, seeking to suspend his medical license immediately because of his alleged improper conduct with D.S. Appellant vigorously denied the allegations of wrongdoing. Following negotiations with appellant and his counsel, the Attorney General entered into an interim consent agreement, permitting appellant to continue to practice on the condition that he only see female patients in the presence of a female chaperone approved by the Board. The contested matter was then referred to the OAL for a hearing before an ALJ.
During the course of discovery before the OAL hearings, appellant served upon the Attorney General a request for additional information. That request produced a written response by the Attorney General in December 2004 amplifying, and, to some extent, modifying, D.S.'s factual allegations. The source of this additional information, as stipulated by the Attorney General, was D.S., who had been interviewed by a Deputy Attorney General prosecuting this matter. In particular, the Attorney General noted that D.S. had come to the Sall/Myers office on her third visit for the purpose of documenting bruises. D.S. later testified at trial that the bruises had been inflicted upon her by her then-boyfriend.*fn4 D.S. testified that she had not told the police about this incident because she was still "in love" with her boyfriend at that time and did not want to get him in trouble.
Additionally, the Attorney General's discovery response asserted that D.S. had been "instructed [on the day of appellant's alleged improper touching] by a female employee of Sall/Myers to remove all of her clothing, including her bra but not her underwear, and put on a gown." According to the discovery response, this procedure contrasted with the two prior visits, in which staff had instructed D.S. to remove her clothing and put on a gown, but leave both her bra and underwear on.
The matter was tried before the ALJ over the course of four intermittent hearing dates in October 2005 and June 2006. At trial, D.S. offered the following version of the facts, which varied in several respects from her earlier accounts.
D.S. testified at trial that the improper touching occurred at the Sall/Myers office on March 26, 2003.*fn5 She stated that she came in for physical therapy that day. She had bruises on her body in various places. After the physical therapy session ended, D.S. allegedly told a nurse that the bruises had been inflicted by her then-boyfriend. The nurse asked D.S. to put on a gown over her bra and underwear, and then took photographs of the bruises. After the pictures were taken, appellant allegedly entered the room and closed the door to examine her. He instructed D.S. to take off her bra.*fn6 He then examined her entire body, including allegedly touching her breasts under the gown without wearing any gloves. Appellant then checked her blood pressure on one of her arms. Finding that the pressure was a bit high, he decided to check it on her other arm.
According to D.S., while appellant was taking her blood pressure, "[h]e pushed [her] hand to his penis." Moving her hand away, D.S. noticed that appellant's penis was hard. Appellant told her to get dressed. He then asked for directions to her house. She refused to give them. As she was leaving, appellant allegedly "hugged [her] and kissed [her] mouth." With respect to her bra, D.S. testified at trial that she was "sure it was [appellant] who [told her] to take the bra [off]."
Afterwards, D.S. left the room in what she described as a state of "shock." She only mentioned to the nurses that appellant had asked for directions to her house, which they agreed she did not need to give. They gave her the Polaroid pictures, which each had the date March 26 handwritten on the bottom. D.S. testified that she was never seen by another doctor at Sall/Myers after that incident, but she briefly returned to the office for physical therapy.
With respect to appellant's attempts to contact her outside of the office, D.S. testified that she left work at the tanning salon at around 3:00 p.m. on Friday, April 4, 2003. She then got a call from appellant around 3:15 p.m. when she arrived home. Appellant stated that he "would like to come and check [her] at [her] house." D.S. responded that she would be at the office later for physical therapy anyway, and that he could check her then. Appellant replied that he would be working there until 6:00 p.m.
Upon getting into her car to drive to physical therapy at around 5:00 p.m., D.S. "saw next to [her] car[,] in front of [her,] [appellant] in another car." His car "was next to [her] car on the other side of the road." D.S. recalled that the car was either dark blue or black and was moving. She noted that, as she was leaving her parking spot, appellant's car was heading in the other direction. The street lights were already on.
D.S. testified that appellant then left a voice mail message on her cell phone and requested that she call him back. She did not do so. Instead, she proceeded to her physical therapy appointment at Sall/Myers. While at that session, D.S. allegedly verified from the physical therapy staff that appellant was not then on duty, but rather that he had seen patients earlier that morning. D.S. did not return again to Sall/Myers.
As to the discrepancies in the dates for the improper touching she had provided to the police, D.S. explained at trial that it was not until she had looked at the date notations on the Polaroid photographs that she realized that March 26, 2003 was the correct date. D.S. contended that she had discarded the photographs "a couple of months" before the trial. D.S. also acknowledged that the prosecuting Deputy Attorney General had requested to see the photographs before trial but the photos were never shown to her.
In his own testimony, appellant emphatically denied any improper conduct with D.S. in his office and likewise denied ever driving to her home. He testified that he first met D.S. on January 15, 2003, and treated her in Sall/Myers's Passaic office. As was the routine, D.S. was wearing street clothes on that first appointment and also when she returned a second time. Appellant stated that he regularly used room number 3 at the Passaic facility because it is closest to the secretary's desk. The door is routinely closed during examinations. After the examination is completed and the patient leaves, appellant customarily returns to the exam room to dictate his notes for the patient's chart. Appellant recalled that, based upon his examination of D.S., he had written notes stating that D.S. could return to school by February 3 and to work by February 10.
According to appellant, the last day on which he saw D.S. was Wednesday, April 2, 2003. That April 2 date is consistent with appellant's dictated report on D.S.'s chart. As appellant recalled it, on that last visit, D.S. was in the examination room when appellant walked in with Luz Marrero, the Passaic office manager. D.S. was wearing a gown, with the back open. With some reluctance, D.S. told him that her boyfriend had beat her up a few days earlier. Appellant then examined her, finding bruises on her face, neck, shoulder, hips, and lower extremities. Appellant insisted that he never touched her breasts, buttocks, pubic area, nor did he expose any of these areas. He also contends that he did not take her blood pressure or vital signs that day.
After examining D.S., appellant contends that he left the examination room with Marrero. Soon thereafter, he returned to the room to dictate. At that point, D.S. was alone in the room, and getting dressed. According to appellant, the door was then open. Appellant waited for her to finish dressing so that he could dictate. This ...