On appeal from the State Board of Medical Examiners.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino, and J. N. Harris.
We review the imposition of sanctions against a physician by the State Board of Medical Examiners (Board). Finding the Board's grant of a motion for summary decision inappropriate, we reverse and remand for a full contested proceeding.
Dr. Gangaram Ragi, M.D., a dermatologist, stands accused of sexual misconduct by twelve patients, and falsification of two applications for renewal of hospital privileges.*fn1 He became the subject of at least two Bergen County indictments relating to the patients' accusations.*fn2 With the consent of the Bergen County Prosecutor's Office (the Prosecutor), in order to resolve the indictments, Dr. Ragi was permitted entry into a pretrial intervention program (PTI) without making an admission of guilt as to any of the charges in the indictments.*fn3
Within four months of Dr. Ragi's admission to PTI, the Attorney General filed this disciplinary action. It rests upon a twelve-count complaint, asserting professional misconduct in violation of several statutes and Board regulations. Dr. Ragi responded to the Attorney General's allegations with an answer that denied all aspects of the claimed misconduct and asserted affirmative defenses.
Bypassing a reference to the Office of Administrative Law (OAL), the Attorney General moved for summary decision pursuant to N.J.A.C. 1:1-12.5, less than three weeks after receiving Dr. Ragi's answer. Following an exchange of briefs and certifications--but without a realistic opportunity for any discovery--and after oral argument, the Board granted the Attorney General's motion. Briskly moving into a penalty phase that was organized ahead of time (with notice given to Dr. Ragi), the Board immediately imposed a sanction of one year's active suspension, plus two years of "stayed suspension," together with certain conditions. The Board's decision was stayed by this court, pending our complete review.
From our vantage point, fully cognizant of our obligation to accord substantial deference to the actions of the Board, we discern that genuine issues of material fact were indeed in dispute at the time the motion for summary decision was wrongly decided. Accordingly, the Board was precluded from deciding the matter in the truncated fashion that it employed. We reverse and remand for further proceedings.
Dr. Ragi has been a practicing dermatologist in Teaneck since 1991, and before that in Scarsdale, New York. He holds medical licenses in New Jersey, New York, and Florida and had been certified by the American Board of Internal Medicine and the American Board of Dermatology. He specializes in Mohs Micrographic Surgery, a treatment for skin cancer for which he was certified by the American Board of Mohs Micrographic Surgery & Cutaneous Oncology.
In 2003, two of Dr. Ragi's female patients brought their grievances to the Prosecutor, alleging that Dr. Ragi had inappropriately touched them in a sexual manner during medical examinations at his office. An indictment resulted from these accusations in 2003, to which Dr. Ragi entered a plea of not guilty.
This 2003 indictment, along with the witnesses' statements, related investigative materials, and patient records were submitted to the Board for its consideration. After a review of these data, the Board entered an Interim Order--with Dr. Ragi's acquiescence and consent--on June 11, 2003, requiring an independent practice monitor (IPM) to be present in the examination room any time Dr. Ragi interacted with a female patient. The IPM, to be selected by the Board at Dr. Ragi's expense, was ordered to report all questionable conduct by Dr. Ragi to the Board.
On August 1, 2003, Dr. Ragi completed an application for staff reappointment at the Hackensack University Medical Center (HUMC). On that application, Dr. Ragi indicated that his "hospital privileges, duties, staff membership, professional licensures, DEA or NJCDS numbers" had not been "suspended, withheld, denied, reduced, revoked, modified, or not renewed" by "any . . . State agency or office." Additionally, he incorrectly indicated on the same application that there had not been "any disciplinary action or investigation by any State licensing board" or "any criminal proceedings against" him since his initial or last reappointment.
Almost five months later, on December 23, 2003, while completing a separate yet similar reappointment application for the Jacobi Medical Center/North Central Bronx Hospital (Jacobi Hospital) in New York, Dr. Ragi inaccurately stated that his medical license had never been "denied, revoked, suspended, relinquished, withdrawn, reduced, limited, placed on probation, not renewed, or currently pending/under investigation in this [New York] or any other state[.]" He did answer affirmatively on this application that he had been "investigated" by a "government agency or . . . been charged with a violation of federal, state or local law[.]" However, the attachment that Dr. Ragi later supplied to explain this affirmative answer described inapposite civil litigation in New Jersey involving alleged "improper performance of surgery" that was settled in the Law Division by his insurance carrier.*fn4
In the autumn of 2004, while the 2003 indictment was still pending and as the Board's Interim Order remained in place, Dr. Ragi approached the Board and asked it "to replace the Interim Order with another arrangement by which the public interest will continue to be protected while Dr. Ragi contests the criminal allegations contained in the [i]ndictment." This resulted in the Board's adoption, again with Dr. Ragi's consent, of the Second Interim Consent Order, dated November 15, 2004, whereby Dr. Ragi was prohibited from engag[ing] in the practice of medicine with regard to any female patient. For purposes of this Order, the practice of medicine shall include but not be limited to providing any medical diagnosis, treatment or any medical service, prescription, device or medication to any female patient.
This order also expressly reserved the "right and prerogative" of the Board to revise and review this Second Interim Consent Order if it later discovered that Dr. Ragi "enter[ed] into a Pretrial Intervention Program pursuant to N.J.S.A. 2C:43-12 et seq. as the result of any charge or accusation contained in the [i]ndictment."
On March 7, 2005, an order (2005 PTI Order) related to the 2003 indictment was entered--with the consent of an assistant prosecutor appended--approving Dr. Ragi's first admission into PTI. The order deliberately made no mention of Dr. Ragi's culpability for the alleged sexual misconduct charges. Nevertheless, the order contained the following conditions directly related to those allegations:
2) Not to engage in medical practice with any female patients ever.
3) PTI officers to conduct random office visits for compliance.
One year later, on March 16, 2006, the Board entered a Final Consent Order reprimanding Dr. Ragi "for violating N.J.S.A. 45:1-21(e) [professional misconduct as may be determined by the Board] and N.J.A.C. 13:35-6.3 [sexual misconduct]."*fn5 The order continued Dr. Ragi's prohibition on engaging in the practice of medicine with regard to any female patients.
Meanwhile, back in January 2006, another of Dr. Ragi's former female patients reported to the Prosecutor that in 2001, she had been inappropriately touched during an office visit while still a patient, the same time period as the other previous complaints. After she learned from her mother--also a former patient of Dr. Ragi--that he was apparently no longer seeing female patients, this former patient immediately went to the Internet. I googled Dr. Ragi and what immediately came up, the first hit was the first - - the second inter[im] order that was put into place or looks like it was put into place by ...