On appeal from the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lyons and Waugh.
Santusht Perera, M.D. appeals from a decision of the New Jersey Board of Medical Examiners (Board) imposing a two-year period of license suspension,*fn1 and a civil penalty of $30,000. In reaching its decision, the Board refused to adopt all of the findings of fact and conclusions contained in the decision of the Administrative Law Judge (ALJ) who had initially heard the matter as a contested case. The Board also did not adopt the ALJ's recommended penalty and refused to grant an adjournment of Dr. Perera's mitigation hearing. Because we find the Board's decisions are not arbitrary, capricious, or unreasonable, and that they are adequately supported by the record, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. In November 1999, R.F., a sixty-year old male, experienced an episode of hemotysis, i.e., coughing up blood. A similar incident occurred in April 2000, prompting R.F. to seek treatment from George Ciechanowski, M.D., a pulmonologist. Dr. Ciechanowski performed several diagnostic tests on R.F. A computed tomography (CT) scan performed on April 27, 2000, showed a three-centimeter mass on R.F.'s left lung and an area of "increased density," approximately one and one-half centimeters in size, on R.F.'s right lung. A subsequent positron emission tomography (PET) scan revealed that the mass on the right lung was not cancerous.*fn2
After performing a bronchoscopy,*fn3 Dr. Ciechanowski determined that the larger mass on the left lung was a non-cancerous carcinoid.*fn4 This carcinoid was the cause of R.F.'s hemotysis. The bronchoscopy further revealed that R.F.'s right lung was free from any lesions.
Dr. Ciechanowski concluded that the carcinoid was a life-threatening condition because it bled substantially. If the carcinoid erupted again, R.F.'s airways could have flooded with blood, causing a "drowning type of death, asphyxiation basically." Based on these findings, Dr. Ciechanowski referred R.F. to Dr. Perera, a thoracic surgeon, to evaluate the possibility of a surgical remedy for the carcinoid.
During a phone conversation between Dr. Ciechanowski and Dr. Perera, Dr. Ciechanowski expressed his concern about the carcinoid in R.F.'s left lung. He told Dr. Perera that he put the carcinoid "on the front burner" while the "increased density" on the right lung revealed by the initial CT scan should be put "on the back burner," especially considering the negative results from the PET scan.
Dr. Perera first examined R.F. on August 29, 2000, and scheduled his surgery for September 5, 2000. Dr. Perera did not order a second CT scan prior to the surgery, despite the fact that R.F.'s last scan had been taken four months earlier, on April 27, 2000. When Dr. Perera performed the surgery, he mistakenly removed the lower and middle lobes of R.F.'s right lung, leaving the left lung containing the carcinoid untouched.
It is clear from R.F.'s medical records that Dr. Perera intended to remove the carcinoid, but, beginning with his initial evaluation of R.F., he mistakenly believed that the carcinoid was in the right lung. For example, the consent form R.F. signed during his August 29, 2000, examination recites that the purpose of the planned surgery was to treat a "right lung carcinoid." Dr. Perera's physician order, prepared on August 30, 2000, and the pre-operative physical examination, completed by Dr. Perera the day of R.F.'s surgery, both stated that R.F.'s planned procedure was to address a "carcinoid" on the "right" lung. Even immediately after surgery, Dr. Perera made a brief operative note again misstating that the location of the tumor was in the right lung. Moreover, Dr. Perera never discussed with R.F. that the operation would be on his right lung.
During Dr. Perera's hearing before the ALJ, he testified that he was aware of the carcinoid in the left lung, but decided to perform exploratory surgery on the small density in R.F.'s right lung, explaining that he was concerned that the density could be cancerous. He further justified not operating on the carcinoid because R.F. had not had any bleeding since April.
After the surgery, Dr. Perera testified that he informed R.F. that his right lung had been operated on in an attempt to find and remove cancer. However, R.F. testified during a deposition*fn5 that Dr. Perera did not explain the results of the surgery to him until after he questioned why his right side hurt and was bandaged. When he asked for an explanation, Dr. Perera informed him that he had found a tumor on his right lung that was hemorrhaging and he removed the portions of his right lung to save R.F.'s life. R.F. believed Dr. Perera until he obtained his medical records and discovered that that there had been no tumor in his right lung.
In a further attempt to hide his negligence, Dr. Perera also altered R.F.'s medical records. During R.F.'s initial examination by Dr. Perera of August 29, 2000, Dr. Perera prepared a report that described his understanding of R.F.'s condition. When the report was acquired in the course of the investigation into Dr. Perera's care, the Attorney General submitted the document to a forensic document examiner, who determined that two different inks were used to compose the document. The report is re-created below, with the words set forth as they appear on the actual document. One type of ink, however, is represented in bold and italic typeface and the other type of ink is represented in regular typeface, consistent with the expert's analysis:
Patient with biopsy left lower lobe Patient seen currently without symptoms needs right lower lobectomy for carcinoid? / carcinoma?
Discussed with patient / Dr. Ciechanowski for admission next week.
At the hearing, the Attorney General argued that the words written in the ink represented in bold, italic typeface form a single coherent sentence, which, he argued, shows what Dr. Perera actually ...