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In re Kim

October 28, 2008

IN THE MATTER OF THOMAS J. KIM, M.D. TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY.


On appeal from the New Jersey State Board of Medical Examiners.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: September 17, 2008

Before Judges Parrillo, Lihotz and Messano.

Petitioner Thomas J. Kim, M.D. (appellant) challenges the authority of the New Jersey State Board of Medical Examiners (Board) to issue a reprimand contemporaneously with the grant of a state medical license. The reprimand resulted from a prior interaction between appellant and a patient, which took place in California and had not been determined to be misconduct by our sister state. We conclude the Board's actions are within its statutory authority, and we affirm.

Appellant is a board certified obstetrician and gynecologist, nationally-recognized for his work in reproductive endocrinology and infertility. Appellant, who was a licensed physician in California, moved to New Jersey on May 3, 2007, and submitted a license application to the Board. In his application, appellant disclosed he had settled a malpractice action filed by a former client, J.B. Appellant was requested to appear before the Board's Credentials Committee (Committee) to discuss this issue and his prior employment.

Appellant responded to the Board's inquiry. He revealed J.B., who was a radiologist in Atlanta, Georgia, had contacted him as a colleague to discuss cryopreservation and other fertility procedures. Appellant and J.B. developed a friendship. At J.B.'s request, appellant began administering fertility treatments to her. The two became intimate and J.B. became pregnant. Thereafter, appellant ended the affair.

J.B. filed a complaint with the California Medical Board. Also, J.B. initiated a civil action alleging professional negligence, infliction of emotional distress, and assault and battery.*fn1 The matter was settled with no admission of wrongdoing at approximately the same time appellant moved to New Jersey.*fn2

Correspondence from the Medical Board of California regarding the status of its investigation advised appellant that an "accusation" would not be filed, therefore, the case was "closed." The Committee confirmed the California Board's decision "was not based upon any negotiated agreement by appellant to avoid action by that state." The Committee recommended "Dr. Kim be granted a [medical] license with the condition that he enter into a public order of reprimand for engaging in conduct[,] which constitutes a violation of the sexual misconduct regulations."

The Board approved the Committee's recommendation and informed appellant licensure would be granted conditioned on the execution of a consent order that included a public reprimand. Through counsel, appellant contested the Board's determination and requested the Board issue no reprimand or, in lieu thereof, issue a private letter agreement of admonishment. The Board denied this counteroffer and "reaffirmed it[]s prior position that a consent order of reprimand be offered to Dr. Kim."

Alternatively, the Board permitted appellant to withdraw his application without disciplinary consequences.

Appellant accepted and executed the proposed consent order of licensure. The order briefly recited the factual background of the professional conduct violation with J.B., then stated:

Upon review of Dr. Kim's application for licensure including his testimony before a Committee of the Board, the Board found it adequately protective of the public safety to grant Dr. Kim a plenary license with a reprimand for professional misconduct based on the prior intimate consensual relationship with a patient. In reaching this decision[,] the Board considered that this was an isolated ...


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