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In the Matter of the Suspension Or Revocation of the License of Alan G. Wasserman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 1, 2012

IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF ALAN G. WASSERMAN, M.D. LICENSE NO. MA03065200 TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY.

On appeal from the State Board of Medical Examiners, Division of Consumer Affairs.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 13, 2011

Before Judges Fuentes, Ashrafi and Nugent.

Alan G. Wasserman, a radiologist, appeals from a final decision of the State Board of Medical Examiners (Board) finding that he committed repeated acts of negligence in violation of N.J.S.A. 45:1-21(d), suspending his license for six months with three months served actively, and imposing penalties, fees and costs totaling $35,000. We affirm.

The Attorney General filed a three-count administrative complaint with the Board against appellant. Count one alleged appellant was grossly and repeatedly negligent in performing and interpreting a series of magnetic resonance imaging (MRI) studies involving nine patients from 2000 to 2006, and two additional patients whose MRI studies appellant was not able to produce, in violation of the relevant statutory and regulatory standards governing the practice of medicine in the area of screening and diagnostic testing.*fn1 Count two charged appellant with operating an MRI facility for over four years without obtaining the required licensure from the State Department of Health and Senior Services (DHSS).*fn2 Count three alleged appellant failed to cooperate in a Board investigation.*fn3

Upon joinder of issue, the Board referred the matter to the Office of Administrative Law where the case was tried over a period of four non-sequential days before an Administrative Law Judge (ALJ). In his Initial Decision, the ALJ found that "over a period of more than five years, [appellant] aided in the production and evaluation of MRI films that were of insufficient quality to lead to trustworthy, reliable medical conclusions."

The ALJ found evidence of negligence in the MRI studies of three specifically identified patients, and deficiencies in the studies of four other patients. The ALJ recommended dismissal of count two because the acts complained of fell within the purview of the DHSS and count three for lack of evidence. As to sanctions, the ALJ recommended a six-month suspension of appellant's license to practice medicine, with three months actively served, a $10,000 penalty, and $25,000 in costs.

After both sides filed exceptions and a final hearing, the Board issued its decision affirming and adopting the findings made by the ALJ as to counts one and three. As to count one, the Board specifically found that "over a period of years" appellant had "'interpreted MRI results that were of such poor quality that they either could not be competently confirmed, or that there could have been conditions that existed that would not have been revealed by the images' and that this conduct constitutes repeated acts of negligence."

As to count two, the Board found insufficient basis to conclude appellant intentionally violated the relevant regulations governing the operation of an MRI facility. The Board rejected, however, the ALJ's conclusion that because these facilities are licensed by the DHSS, the Board lacked the authority to impose sanctions upon appellant for "professional misconduct." Finally, the Board adopted the sanctions recommended by the ALJ.*fn4

Appellant argues the Board's decision to suspend his license was arbitrary and capricious and lacks support in the record. In lieu of reciting at length the salient facts of this appeal, we incorporate by reference the detailed findings made by the ALJ and adopted by the Board in its final decision.

Judicial review of an administrative agency's final decision is limited. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007). A court will not reverse an agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record. Ibid.

"Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Worthington v. Fauver, 88 N.J. 183, 204-05 (1982) (quoting Bayshore Sewerage Co. v. Dep't of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd o.b., 131 N.J. Super. 37 (App. Div. 1974)). The test, therefore, is one of rational basis. Ibid.

In this light, we discern no basis to interfere with the Board's decision and affirm substantially for the reasons expressed in its final decision filed on October 18, 2010.

Affirmed.


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