April 3, 2009
IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF SANTUSHT PERERA, M.D. LICENSE NO. MA06664200 TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY, APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
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 wrote on August 29, 2000. That report would have read:
Patient seen needs right lower lobectomy for carcinoid Discussed with patient for admission next week.
The Attorney General argued that Dr. Perera wrote additional words in different ink in order to make the document comport with his version of events, namely, that he did not see the carcinoid as a threat to R.F.'s health and justifiably operated on his right lung instead.
However, while the forensic document examiner did state that the document was composed with two different inks, he refused to opine as to whether the entries were made at different times. Dr. Perera did not deny that he used different pens to author the document, but explained that it was his common practice to have "pens scattered all over the place" in the examining rooms, often leading to him using different pens on the same chart as he took notes throughout an exam.
At Dr. Perera's hearing, the ALJ rejected Dr. Perera's testimony that he knew the location of the carcinoid but made a conscious decision to perform exploratory surgery on the right lung. The ALJ found that the medical records clearly indicated that the plan had always been to remove the carcinoid in the left lung that had caused the hemotysis, and that no records referenced a plan to conduct exploratory surgery.
The ALJ also found that Dr. Perera should have obtained a second CT scan prior to R.F.'s surgery, and his failure to do so constituted "a monumental breach of the standard of care." He noted that "obtaining a repeat CT scan before doing exploratory surgery is standard routine procedure, it is not rocket science, and... Dr. Perera should have known better." (internal quotations omitted). The ALJ found this was a critical, "unjustifiable lapse of sound medical judgment."
In assessing Dr. Perera's veracity concerning his statements about the surgery, the ALJ accepted R.F.'s testimony that Dr. Perera did not volunteer that he had operated on the right lung until R.F. questioned him. The ALJ further found that Dr. Perera had lied to R.F. and told him that he had found a hemorrhaging tumor in his right lung.
Regarding R.F.'s medical records, the ALJ determined that he could not find that Dr. Perera had altered the documents because the forensic document expert could not opine that the two different inks were applied to the paper on different dates. The ALJ accepted Dr. Perera's explanation that he used different pens simply because there were several available in the examining room and, over the course of taking notes, he must have used more than one.
Based on these determinations, the ALJ issued his Initial Decision on April 14, 2008, recommending that Dr. Perera's medical license be suspended for two months, that he pay $10,000 in civil penalties and that he reimburse the State for its costs and fees. Both the Attorney General and Dr. Perera filed exceptions to the decision, and the Board set May 21, 2008, as the date to consider those exceptions. In a letter to their attorneys dated May 12, 2008, the Board explicitly informed the parties that, should it determine that the Attorney General established a basis for disciplinary sanction, the Board would then immediately move to the penalty phase of the hearing. The notice made clear that the Board would accept documentary evidence and testimony on the issue of mitigation at that time.
On May 21, 2008, the Board proceeded with the case as scheduled. Dr. Perera did not personally attend the hearing, but his attorney was present. The Board agreed with the ALJ on all findings of fact except for Dr. Perera's alteration of R.F.'s medical records. The Board found that there was adequate evidence to support a finding that Dr. Perera did, in fact, alter R.F.'s medical records and further found that Dr. Perera's conduct warranted sanction.
The Board then turned to the issue of penalty. Dr. Perera's attorney immediately requested an adjournment, stating that "[w]e were unable to assemble the available witnesses that we want to call on this issue." When questioned why he was unable to do so, despite having been given notice, Dr. Perera's attorney responded that:
When [the Board's] decision came down... we were prepared to accept it. An exception was made to it, and we responded to it. But the time frame where that came about just left me with insufficient time to make the arrangements to get the people... here.
He further stated "I'm pretty sure that I could have arranged to get somebody here, but to me, that is not an operable [sic] way in which to proceed." The Board declined to adjourn the proceedings, and so Dr. Perera did not present any evidence in mitigation, though his attorney did argue in support of a lenient penalty.
On June 5, 2008, the Board issued its Final Order. Upon review of the ALJ's decision, the Board accepted all the ALJ's findings, except with regard to Dr. Perera's alteration of R.F.'s medical records. The Board found it was "abundantly clear" that the portions of the report written with one type of ink, presumably on August 29, 2000, "must have been written by Dr. Perera first (presumably at the time of his initial examination of R.F.)" and the remainder of the report, consisting of words written with the other type of ink, were added some time later. The Board found that "[i]t is thus the case that the notes written [presumably on August 29, 2000, in one type of ink] logically appear to have been entered at one time, as all five lines start at approximately the same left side margin and appear to be relatively evenly spaced." Following this line or reasoning, the Board found that "one would not expect the notes [written in the other type of ink] to have been written at the time of R.F.'s examination, as those entries lack consistency in spacing and do not all begin on the left margin of the page (only one of the four lines in fact begins at the left margin)." Importantly, the Board also noted that, in two instances, the entries are preceded with slash marks "that only make sense when they are read in conjunction with and as additions to" the notes made in the ink presumably used on August 29, 2000.
The Board also found that the ALJ failed to consider the "drastically altered" meaning of the medical report as amended. After noting that the words written in the "first" type of ink were entirely consistent with the ALJ's finding that Dr. Perera mistook the location of the carcinoid from his very first examination of R.F., the Board stated that the alleged alteration differed from the original note in four significant respects:
First, the note suggests to the reader that Dr. Perera was aware of the findings that had been made following a biopsy of R.F.'s left lower lobe, which in turn inferentially suggests that Dr. Perera purposefully and intentionally planned to operate on R.F.'s right lobe. Second, the note includes a reference to the fact that R.F. is currently "without symptoms," which again would be a fact which would be significant to explain Dr. Perera's election not to remove the left sided carcinoid and instead focus on an unknown density on the right side. Third, the note suggests to the reader that Dr. Perera's purpose for operating on the right side was to remove either a carcimona or a carcinoid thus inferring that Dr. Perera was aware of a right sided mass, but not aware whether or not it was cancerous or benign.
Finally the amended note suggests to the reader that Dr. Perera discussed his plans with the referring pulmonologist, Dr. Ciechanowski.
Based on this, the Board declined to adopt the ALJ's conclusion concerning Dr. Perera and his alteration of the medical records. As such, the Board found the ALJ's recommended penalties inadequate, and increased Dr. Perera's license suspension to two years, with the first six months to be served as a period of active license suspension and increased his civil penalty to $30,000.
Dr. Perera then sought a stay of the Board's Final Order so that he could present witnesses at a mitigation hearing. The Board granted an initial stay on June 6, 2008, and re-opened the matter on June 11, 2008, at which point Dr. Perera appeared and requested an opportunity to present witnesses on the issue of his penalty.
The Board questioned Dr. Perera about his absence on May 21, 2008, the date set for the mitigation hearing. Dr. Perera acknowledged that he knew there was a possibility that the Board would not accept the ALJ's decision and would hold a mitigation hearing on that date. Dr. Perera also testified that his attorney told him he would need to be present at a mitigation hearing and that he would have to present witnesses at that time. Dr. Perera explained that, despite having this information, he did not attend the hearing because he was "hoping that the Board would implement that ruling that the [ALJ] had given." He stated, "I did not expect the Board to overrule that judge's decision, and I'm sorry I took a chance. [...] And that is exactly why I wasn't here." Dr. Perera further admitted that he had not spoken to any of his witnesses, despite having given his attorney a list of individuals that would be available, because he "didn't want to drag them in and bring them down for this kind of unpleasant activity without it being real clear as to whether the Board was going to go into a mitigation phase." The Board concluded that, given the facts adduced, it would not now afford Dr. Perera a mitigation hearing and vacated the June 5, 2008, stay on its order. This appeal ensued.
On appeal, Dr. Perera does not contest the Board's finding that he was grossly negligent, that he should have performed a CT scan, or that he attempted to obscure the truth from R.F. when questioned by him about the surgery. Dr. Perera only contests the Board's finding that he altered R.F.'s medical records and the Board's refusal to adjourn the mitigation hearing. He presents the following arguments for our consideration:
THE NEW JERSEY BOARD OF MEDICAL EXAMINERS ACTED UNREASONABLY, ARBITRARILY AND CAPRICIOUSLY BY REJECTING CERTAIN FINDINGS OF FACT AND CONCLUSIONS OF LAW MADE BY A.L.J. SPRINGER.
THE NEW JERSEY BOARD OF MEDICAL EXAMINERS FAILED TO PROVIDE DUE PROCESS OF LAW BY FAILING TO CONDUCT A PROPER MITIGATION HEARING.
We begin our consideration of the these arguments by restating applicable legal principles. In In re Herrmann, 192 N.J. 19 (2007), our Supreme Court restated the well-recognized principles of judicial review of administrative actions. The Court said:
The scope of [judicial review of an administrative agency] is limited. See In re Carter, 191 N.J. 474, 482 (2007). An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. See Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Three channels of inquiry inform the appellate review function:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell, supra, 39 N.J. at 562).]
When an agency's decision meets those criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field. See In re License Issued to Zahl, 186 N.J. 341, 353 (2006); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Deference controls even if the court would have reached a different result in the first instance. See In re Taylor, 158 N.J. 644, 657 (1999).
That deferential standard applies to the review of disciplinary sanctions as well. See Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975); see generally 37 New Jersey Practice, Administrative Law and Practice, § 328, at 333-34 (Steven L. Lefelt) (1988) (hereinafter Lefelt). A reviewing court should alter a sanction imposed by an administrative agency only "when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency." In re Polk, 90 N.J. 550, 578 (1982); see also Lefelt, supra, at 334 (stating same and that "[a]fter reviewing the statutory authorization and the record, if the court concludes that the sanction is not illegal or unreasonable, the sanction will be affirmed"). In light of the deference owed to such determinations, when reviewing administrative sanctions, "the test... is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Polk, supra, 90 N.J. at 578 (citing Pell v. Bd. of Educ., 34 N.Y.2d 222, 233 (1974)). The threshold of "shocking" the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result.
[In re Herrmann, supra, 192 N.J. at 28-29.]
Mindful of these principles, we turn to review the arguments raised by Dr. Perera.
Dr. Perera first argues that the Board did not afford the ALJ proper deference when it rejected the finding that there was inadequate evidence to find he altered R.F.'s medical records. This argument is unfounded. An agency head is free to "adopt, reject or modify" an ALJ's recommended decision. N.J.S.A. 52:14B-10(c); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). An ALJ is given special deference by an agency and a reviewing court only regarding credibility determinations made based on live testimony. Clowes, supra, 109 N.J. at 587. In all other respects, an agency is within its discretion to amend an ALJ's initial decision, so long as the agency gives due consideration to the ALJ's findings, bases its decision on substantial evidence in the record and indicates how it weighed that evidence. New Jersey Dep't of Pub. Advocate v. New Jersey Bd. of Pub. Utilities, 189 N.J. Super. 491, 501 (App. Div. 1983); 37 New Jersey Practice, Administrative Law and Practice, § 6.16, 2008 Pocket Part at 57 (Steven L. Lefelt, et. al., 2d ed. 2000).
In this case, the ALJ reached his determination regarding Dr. Perera's modification of R.F.'s records because he relied on the State's forensic document expert, who could not opine that the two different inks used to write the report were applied to the paper on different dates. While the ALJ also considered Dr. Perera's testimony that he often used different pens when writing his reports, it is clear that in coming to his conclusion he relied primarily on the expert's unwillingness to offer such an opinion. Upon review, the Board found that the ALJ's reliance on the expert's inability to opine as to when the two inks were used was an error, because the expert's opinion "was limited to identifying portions of the record written in different inks." The Board found that the issue of when Dr. Perera used the two inks "was not for the expert, but rather for the trier of fact," and the ALJ should have made that determination. Because the ALJ's finding was based on the expert's refusal to give an opinion, rather than a credibility assessment of Dr. Perera, the Board was not obligated to give the ALJ's finding any deference, nor are we.
In rejecting the ALJ's finding, the Board thoroughly set forth the evidence supporting a finding that Dr. Perera had, in fact, altered the records. The Board noted that the document was written in two different inks. Notably, the ink supposedly used when Dr. Perera originally drafted the document created a complete, comprehensible thought. However, the second type of ink did not make sense in isolation and changed the meaning of the document drastically.
Moreover, the words written in the second type of ink were inserted into the existing text in such a way that it appeared they were added later. For example, they were not lined up with the margins and were preceded by slash marks that did not make sense without the words written in the other type of ink. In further support of its findings, the Board noted that the ALJ found Dr. Perera had lied to R.F. after his surgery when R.F. asked why bandages were on the right side of his body. The Board reasoned that altering R.F.'s medical records was consistent with Dr. Perera's other behavior.
As stated above, an agency is within its discretion to amend the ALJ's initial decision and has the authority to reject the findings and recommendations of the ALJ. N.J.S.A. 52:14B-10(c); Clowes, supra, 109 N.J. at 587. An agency must simply give due consideration to the ALJ's findings, base its decision on substantial evidence in the record, and indicate how it weighed that evidence. New Jersey Dep't of Pub. Advocate, supra, 189 N.J. Super. at 501. Here, the Board thoroughly considered the ALJ's finding concerning Dr. Perera's alteration of R.F.'s medical records. Upon review, it found that the ALJ abdicated his fact-finding responsibility by basing his determination on the document expert's refusal to give an opinion as to when Dr. Perera used the two inks. The Board, in a well reasoned Final Order, went on to enumerate the evidence in support of its finding that Dr. Perera had, in fact, altered R.F.'s records. The Board's decision in this case is clearly supported by "substantial evidence" in the record. We, therefore, owe the Board deference and will not reverse its decision.
Dr. Perera also argues that his due process rights were violated when the Board refused to adjourn his mitigation hearing, thus preventing him from testifying and presenting his witnesses. This argument is likewise unfounded.
An occupational license is a property right and, therefore, Dr. Perera's due process rights were implicated when the Board suspended his license. In re Polk License Revocation, 90 N.J. 550, 562-63 (1982). The minimal requirements of due process of law include reasonable notice of the nature of the proceedings and a fair opportunity to be heard therein. Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 220 (App. Div. 2000). Also, N.J.S.A. 45:9-19.16a states that, when the Board decides to suspend a physician's license, it "shall provide the physician with an opportunity to submit relevant evidence in mitigation or, for good cause shown, an opportunity for oral argument only as to the discipline imposed by this State."
In this case, the State contends that Dr. Perera waived his right to a mitigation hearing by failing to be present. Waiver is defined as the intentional relinquishment of a known right. Beneficial Fin. Co. of Jersey City v. Norton, 76 N.J. Super. 577, 581 (App. Div. 1962). It must be evidenced by a "clear, unequivocal and decisive act from which an intention to relinquish the right can be based." Country Chevrolet v. N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983). A party's right to waive a constitutional right has long been recognized. LaManna v. Proformance Ins. Co., 184 N.J. 214, 225 (2005); State v. Vigilante, 194 N.J. Super. 560, 563 (Law Div. 1983).
In this case, due process and the applicable statute required the Board to give Dr. Perera an opportunity to be heard before it imposed penalties and suspended his license. He had a full hearing regarding his culpability and was then given his statutorily guaranteed opportunity to present mitigating factors regarding his penalty. Dr. Perera received written notice that, on May 21, 2008, he would have an opportunity to be heard in mitigation and to present witnesses. He failed to utilize this opportunity, though he admitted he had proper notice and understood his presence was required. Despite this knowledge, Dr. Perera chose not to participate in the hearing because he was "hoping" the Board would accept the ALJ's decision. When questioned by the Board concerning his absence, he admitted that he "took a chance" by deciding not to be present. Moreover, Dr. Perera, knowing that he would have the opportunity to present witnesses, failed to inform any potential witnesses of the hearing because he "didn't want to drag them in... without it being real clear as to whether the Board was going to go into a mitigation phase." Thus, Dr. Perera not only chose not to personally attend the hearing, but he failed to prepare for it in any way. There was no inability to gather witnesses in the record. Rather there was simply no effort made to gather them.
"'[T]he intention to waive [a known right] need not be stated expressly but may be spelled out from a state of facts exhibiting full knowledge of the circumstances producing a right and continuing indifference to exercise of that right.'" Scibek v. Longette, 339 N.J. Super. 72, 83 (App. Div. 2001) (quoting Merchants Indem. Corp. v. Eggleston, 68 N.J. Super. 235, 254 (App. Div. 1961), aff'd, 37 N.J. 114 (1962)). By making a conscious decision not to personally participate in his hearing or to contact, prepare, or present witnesses, Dr. Perera exhibited such indifference and, therefore, waived his opportunity for a mitigation hearing. The Board did not abuse its discretion in refusing his attorney's request for an adjournment. We, therefore, affirm.