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Kaul v. Christie

United States District Court, D. New Jersey

February 22, 2019

CHRISTOPER J. CHRISTIE, et al., Defendants.


          KEVIN MCNULTY. U.S.D.J.

         Now before the Court are five motions to dismiss the Second Amended Complaint of Dr. Richard Arjun Kaul. Kaul brings fourteen causes of action against the 25 remaining defendants in this case. For the reasons set forth below, I grant the Omnibus Motion to Dismiss, and dismiss all federal claims with prejudice. The state law claims I dismiss on jurisdictional grounds, without prejudice. Two additional motions, one to further amend the Second Amended Complaint to add a defendant and the other for a default judgment against defendant Lewis Stein, Esq., are denied.

         Dr. Richard A. Kaul, originally trained as an anesthesiologist, performed procedures known as minimally invasive spine surgeries. In March 2014, the New Jersey State Board of Medical Examiners (the "Board") revoked his medical license, finding that his performance of spine surgeries on 11 patients without proper training and experience constituted gross and repeated malpractice, negligence, and incompetence. From Dr. Kaul's perspective, a network of politically connected neurosurgeons were threatened by and jealous of his success. With the assistance of a cabal of politicians, the judiciary, lawyers, hospitals, insurance companies, and media figures, they engineered the revocation of his license. Dr. Kaul broadly asserts that he brings this action against all 25 remaining defendants, and a number of John and Jane Doe defendants, to redress economic and reputational injuries caused by their "scheme to permanently eliminate [him] from the practice of medicine anywhere in the world." (2AC, vi).

         I. BACKGROUND[1]

         In this section, I review the decision revoking Dr. Raul's medical license that is the subject of the complaint (see Section I.A., infra); identify the parties (Section I.B); summarize the factual allegations (Section I.C); and review pertinent procedural history (Section I.D).

         A. Disciplinary Proceedings and Revocation of Medical License

         The heart of this complaint is an attack on the disciplinary proceedings that culminated in the revocation of Dr. Raul's license to practice medicine. Before delving into the allegations, I review those proceedings. This discussion is essentially adapted from my earlier opinion dismissing the First Amended Complaint. The decisions of the ALJ and the Board are cited

         (a) because the allegations here are unintelligible without this background and

         (b) for their existence and legal effect. (See n.1, supra.)

         On June 13, 2012, the AG initiated administrative disciplinary proceedings against Dr. Kaul.[2] The matter was referred to the Office of Administrative Law as a contested matter. ALJ Solomon presided over 23 days of hearings, running from April 9, 2013, to June 28, 2013. Drs. Kaufman and Przybylski testified on behalf of the Board. (ALJ Op. 1-44).

         ALJ Solomon issued his initial decision on December 31, 2013. Here are a few of his findings of fact:

2. [Dr. Raul's] education, training, internships, residencies and fellowships were insufficient to prepare him for surgeries of the spine, whether minimally invasive or open.
3. The CME courses he took were insufficient to provide such education and training. If hands-on training were offered, it was, in most instances, done on cadavers. In others, he was primarily an observer.
4. In addition to his lack of sufficient education and training in spinal surgeries, he did not receive sufficient monitoring by a trained overseer. For instance, he was on his own the first time he inserted a pedicle screw in a live patient, without the presence of any trained monitor.
5. Respondent's treatment included, but was not limited to, inserting pedicle screws into the spinal canal; failing to immediately remove a stimulator after the onset of infection, thereby risking paralysis; using OptiMesh [3] as an interbody structural device; and performing a staged fusion, as well as other acts as discussed above.
6. Some of his patient consents were unsigned. . . .
9. He used allograft bone in patients who were smokers.[4]
10. He failed to advise patients who were smokers of the risks associated with smoking and allograft bone.
11. He misrepresented his qualifications, not only on his website, but also in discussions with his patients.
12. None of his certifications were recognized by the American Board of Medical Specialties, with the exception of his board-certification in anesthesiology. Non-recognition included his certification by the American Board of Interventional Pain Management.

(ALJ Op. 80-81).

         These infractions, the ALJ found, went far beyond mere puffery or resume-fudging. To the contrary, over the course of 94 pages, ALJ Solomon detailed the physical and emotional harm Dr. Kaul inflicted on 11 patients.

         Here is one example, patient T.Z.:

The next patient called by petitioner was T.Z., a forty-year-old woman. In the latter part of 2009, she began experiencing pain in her neck and back following an automobile accident. A neighbor, who had been a patient of respondent, recommended [Dr. Kaul]. T.Z. then checked respondent's website, where he represented that he was a board-certified minimally invasive spine specialist. T.Z. was under the clear impression that if she decided to treat with him, any surgery, if one were required, would be minimal, and nothing more ....
He told her that he was going to insert two screws and scrape a disc that appeared to be bulging, that the surgery would last approximately forty-five minutes, and would only involve a small incision, about one inch in length. The patient stated that it was her clear understanding was that this was going to be a minor procedure, nothing more, and that she would be discharged the same day, followed by a minimal recovery period of about a week or so. The patient stated that she made it very clear to respondent that she would not agree to anything more significant. Although she smoked a pack of cigarettes a day, she stated that respondent never mentioned anything about smoking or its risks associated with surgery.
On September 19, 2011, respondent performed a fusion at L3-L4 with the insertion of five screws. . . .
On the date of the surgery, she and her husband arrived at the surgical center early in the morning for what was thought to be a forty-five-minute procedure. Instead, she left the surgery center around 5:00 or 6:00 p.m. Her husband told her that she was in surgery for about six to seven hours. The ride home was excruciating-she was in extreme pain and felt nauseous. . . . Upon arriving home, she could not walk because the pain was so intense. Her husband called his father and together they placed her in a plastic chair and lifted her up the ten to twelve steps into her home. Once she was inside, she was placed in a recliner. . . .
On December 24, 2011, T.Z. was taken to Pocono Hospital, where she was admitted, because she had severe difficulty walking. The pain and numbness to the inside of her legs and buttocks was worsening. . . . [W]hile at Pocono Hospital, she was informed that the entire disc had been removed. She also learned that five screws, instead of two, had been inserted.
From Pocono Hospital, she was transferred by ambulance to Lehigh Valley Hospital .... It was then that she learned that respondent was not an orthopedist, as she had initially thought, but an anesthesiologist.
On October 14, 2011, after noticing oozing from one of the incisions left by respondent, she consulted Brian Morse, D.O., who performed nerve testing on her legs. They did not respond. He recommended that she see George Naseef, M.D., an orthopedic surgeon. She saw Dr. Naseef on November 17, 2011, complaining of difficulty in walking, leg numbness, her right ankle giving out (going off to the side), and loss of balance, particularly on non-flat surfaces . . . Dr. Naseef told her that two screws had penetrated the nerve in her spine and that she needed surgery. . . .
On January 30, 2012, Dr. Naseef performed a revision surgery at Morristown Memorial Hospital.
During these proceedings, T.Z. was asked to display the scars left by respondent. One scar was vertical at the midline of the low back, and measured approximately eight inches. There was also a horizontal scar to the left of the eight-inch scar, which measured about two inches. . . .
As the result of respondent's surgery, she had to use a walker for about six months for balance, which she began using immediately following the surgery. After six months, she used a cane daily, also for balance. For months, her husband had to escort her to the bathroom, where she used a specially raised toilet seat. This lasted for several months. In addition, her feet have become positioned outward. The inner sides of her legs remain numb and she continues to have back pain. She stated that no day is a good day. Her pain starts upon awakening and worsens as the day progresses.
It was noted by the undersigned that when she approached and left the witness stand, she used a cane and ambulated very slowly. She also brought a pillow to sit on and was sobbing throughout most of her testimony.
Her husband, M.Z., also testified. He accompanied T.Z. to her initial consultation with respondent. He specifically recalled respondent telling them that the procedure would last about forty-five minutes and would involve a three-quarter-inch incision. . . .
He stated that T.Z. is now essentially confined to a recliner. She does not even sleep in bed. . . .
Petitioner called George S. Naseef III, M.D., a board-certified orthopedic surgeon, to testify. Dr. Naseef. . . performed corrective surgery on T.Z. . . .
Dr. Naseef determined that the L-3 screws were not in proper line and the right S-1 screw was in the S-1 nerve root, not in the pedicle. Both L-3 screws and the right S-1 screw had perforated the bone and were in the nerve canal. . . .
During surgery on January 30, 2012, Dr. Naseef noted that the right and left L-3 screws were in the canal, and the right S-1 screw was grossly malpositioned and in the canal. . . . Once the right S-1 screw was removed, nerve function immediately returned to the patient's leg. ... He stated that of the five screws inserted, only one was positioned correctly.[5]

(ALJ Op. 53-57).

         Assessing the evidence in the record, [6] ALJ Solomon concluded that the Attorney General "prove[d] [] well beyond a preponderance of the credible evidence" that Dr. Kaul "never should have performed any spinal surgeries, whether they were called minimally invasive or open, given his lack of education and training." "[T]hat he performed such surgeries, without the requisite education and training, and in disregard for the safety of several patients who testified on behalf of petitioner, . . . warrant[s] nothing less than the revocation of his medical license." (ALJ Op. 93).

         On March 12, 2014, the Board adopted ALJ Solomon's opinion and order in its entirety. It then considered the appropriate penalty for Dr. Kaul's conduct. Observing that Dr. Kaul, rather than acknowledging wrongdoing or demonstrating contrition, had instead lobbed "broad allegations of altered court transcripts, interference with legal evidence and political influence," the Board struggled to "find any mitigating factors in this matter."[7] Indeed, the Board found Dr. Kaul's lack of remorse "disturbing."[8] (Board Order 22-23, 25)

         The Board also considered that this was not Dr. Kaul's first offense. About ten years earlier, the Board had suspended Dr. Kaul's medical license based on his failure to disclose in various credentialing applications that he had been convicted of manslaughter based on the death of one of his patients in England.[9] Despite his failure to be forthright, the Board was lenient. The tragic incident in England, it reasoned, appeared to be no more than a regrettable mistake, the repetition of which could be avoided with the exercise of due care. It therefore "eschewed a more stringent penalty with the hope and expectation that respondent will resolve to practice with the vigilance that he has promised." Under the circumstances, the Board found a two-year suspension to be a sufficient sanction. But "[f]uture transgressions," it warned, would "not be deserving of leniency." (Board Order 23-24).

         Against that backdrop-Dr. Kaul's lack of remorse, his intent to continue to perform spine surgeries, and his failure to "turn over a new leaf to practice medicine responsibly"-the Board adopted the ALJ's recommendation to revoke Dr. Kaul's license, effective February 12, 2014. It further imposed the statutory maximum fine of $20, 000 for each of the 15 counts of malpractice and misconduct charged, as well as attorneys' fees and costs. All told, the Board imposed $475, 422.32 in civil penalties, fees, and costs. (Board Order 28-29).

         Dr. Kaul did not appeal the Board's final decision to the New Jersey Superior Court, Appellate Division. Instead, he filed this action alleging that there was a conspiracy against him involving the Governor, various state officials, the ALJ, the Board of Medical Examiners, various doctors, a lawyer, a bank, a professional association, hospitals, insurance carriers, and the media.

         B. The Parties

         1. Dr. Kaul

         Dr. Kaul was formerly licensed to practice medicine in the State of New Jersey. (2AC ¶ 1). When this cause of action accrued, Dr. Kaul was a "resident of the State of New York." [Id.].

         2. Defendants

         Defendant Allstate New Jersey Insurance Company ("Allstate") is the New Jersey subsidiary of Allstate Insurance Company. (2AC ¶3).

         Defendant, TD Bank, N.A., is a Canadian bank with a United States headquarters located in Cherry Hill, New Jersey. (2AC ¶ 5). Divyesh Kothari, ("Kothari," and, collectively with TD Bank, N.A., the "TD Bank Defendants") is the Vice-President of TD Bank, N.A. (Id. ¶ 22).

         Defendant Lindy Washburn ("Washburn") is an individual located in Woodland Park, New Jersey. (2AC ¶ 19). Defendant Fourth Edition Inc. f/k/a North Jersey Media Group Inc. ("Fourth Edition," and, collectively with Washburn, the "Newspaper Defendants") employs Washburn as a journalist. (Id.). Fourth Edition, which publishes The Record of Bergen County, is a corporation located in Woodland Park, New Jersey. (Id. ¶ 20).

         Defendant Dr. Robert Heary ("Dr. Heary") is the director of the Neurological Institute of the New Jersey Spine Center and Neurosurgical Intensive Care Unit in Newark, New Jersey. (2AC ¶ 9). Dr. Heary is also an attending at Hackensack University Medical Center ("Hackensack UMC"). (Id.).

         Defendant Dr. William Mitchell ("Dr. Mitchell) is an attending neurosurgeon at JFK Medical Center in Edison, New Jersey. (2AC ¶ 11).

         Defendant Lewis Stein, Esq. ("Stein") is a medical malpractice attorney based in Morris County, New Jersey. (2AC ¶ 2).

         Defendant Dr. Gregory Przyblski ("Dr. Przyblski") is the director of neurosurgery at the New Jersey Neuroscience Institute at JFK Medical Center in Edison, New Jersey. (2AC ¶ 10).

         Defendant Dr. Marc Cohen ("Dr. Cohen") is an orthopedic spine surgeon with a medical office in Morristown, New Jersey. (2AC ¶ 14).

         Defendant the American Society of Interventional Pain Physicians ("ASIPP") is a professional medical society with a business address in Paducah, Kentucky. (2AC ¶ 15).

         Defendant Dr. Andrew Kaufman ("Dr. Kaufman") is an individual with a business located in Newark, New Jersey. He is a senior member of ASIPP. (2AC ¶ 18).

         Defendant Dr. Peter Staats ("Dr. Staats") was the 2015 president of ASIPP and is the editor of Pain Medicine News. (2AC at 13).

         Defendant Hackensack UMC is a "900-bed private hospital located seven miles west of New York City" (in New Jersey). (2AC ¶ 8).

         Defendant Robert Garrett ("Garrett") is an individual located in Hackensack, New Jersey. (2AC ¶ 23). He is the president of Hackensack UMC. (Id.).

         Defendant Thomas Peterson ("Dr. Peterson") is a neurosurgeon. (2AC ¶ 12). Dr. Peterson engages in healthcare business with Hackensack UMC. (Id.).

         Defendant the Congress of Neurological Surgeons ("CNS") is a professional medical society with a business address in Washington, D.C. (2AC ¶ 16). Doctors Heary, Przybylski, Mitchell and Person are members of CNS. Id.).

         Defendant Christopher Wolfla ("Dr. Wolfla") is a neurosurgeon in Washington, D.C. (2AC ¶ 17). Dr. Wolfla is the Chairman of Professional Conduct Committee at CNS. (Id.).

         Defendant Atlantic Health System ("AHS") is a private healthcare company with headquarters in Morristown, New Jersey. (2AC ¶ 6). Doctors Cohen, Heary, and Kaufman engage in healthcare business with AHS. (Id.).

         Defendant James Gonzalez ("Gonzalez") is an individual located in Newark, New Jersey. (2AC ¶ 21). Gonzalez was the president of Rutgers University Hospital. (Id.).

         Defendant University Hospital was the teaching hospital for the University of Medicine and Dentistry of New Jersey, the state-run health sciences institution for New Jersey. (2AC ¶ 7). I take judicial notice of the fact that University Hospital is now part of Rutgers, The State University. 18A:65-94(f) ("whenever, in any . . .judicial . . . proceeding . . . reference is made to the University of Medicine and Dentistry of New Jersey . . . the same shall mean and refer to Rutgers, The State University."). Doctors Heary and Kaufman engage in healthcare business with University Hospital. (Id.).

         Defendants Government Employees Insurance Company, GEICO Indemnity, GEICO General Insurance Company, and GEICO Casualty (collectively, "GEICO"), provide auto insurance in New Jersey. (2AC ¶ 4).

         Defendants John Roe 1-50, John Doe 1-50, ABC Corp. 1-50 and/or XYZ P.C. 1-50 are as yet unidentified individuals and companies who have assisted the named defendants in the commission of their alleged crimes. (2AC ¶¶ 23, 24).

         C. Allegations of the Second Amended Complaint

         I have attempted to organize the allegations of the Second Amended Complaint into five categories: (1) the "New Jersey Neurosurgical Community"; (2) the Professional Societies; (3) the Carriers; (4) the OAL and Medical Board proceedings; and (5) other events and correspondence.[10]

         1. The "New Jersey Neurosurgical Community"

         Dr. Kaul identifies himself as a minimally invasive spine surgeon. (2AC ¶ 66). In August 1996, Dr. Kaul obtained his license to practice medicine and surgery in New Jersey. (Id. ¶ 67). In September 1996, he became board certified by the American Board of Anesthesiology. (Id.).

         From 2002 to 2012, Dr. Kaul performed 800 minimally invasive spine surgeries and 6, 000 spine procedures. (2AC ¶ 69). Beginning in 2002, he alleges, he developed an enviable reputation in the field of minimally invasive spine surgery and frequently taught his techniques to other physicians. (Id. ¶45).

         In 2004, Dr. Kaul became board certified by the American Academy of Minimally Invasive Medicine and Surgery. (2AC ¶ 75). This organization, I note, is distinct from the American Academy of Minimally Invasive Spinal Medicine and Surgery.[11] Dr. Kaul points out none of the defendants are board certified by this latter organization; neither, apparently, is he. (See Id. ¶¶ 75-76). From 2003 to 2012, Dr. Kaul was credentialed by at least six state surgical centers to perform minimally invasive spine surgery. (2AC ¶ 72). Dr. Kaul alleges that, between 2010 and 2012, unidentified persons published multiple articles about Dr. Kaul's work in minimally invasive spine surgery. (2AC ¶¶ 39, 47).

         In 2005, Dr. Kaul conducted the first outpatient lumbar spinal fusion ever performed at the Market Street Surgical Center in Saddle Brook, New Jersey. (2AC ¶¶ 37, 71). Dr. Kaul alleges that because this work was innovative it provoked hostility and envy within the New Jersey neurosurgical community. (See Id. ¶ 37). That same year, he alleges, unidentified neurosurgeons influenced the credentialing committee at Meadowlands Hospital to deny Dr. Kaul clinical privileges. (2AC ¶ 38). Dr. Kaul came to learn through conversations with spine device representatives, patients, and physicians that his professional and commercial success had caused immense jealousy in the "medical community." (2AC ¶¶ 39, 41).

         In 2005, Dr. Przybylski began performing minimally invasive spine surgeries. (2AC ¶ 74).

         In 2008, Dr. Heary allegedly made defamatory comments to Frances Kuren, one of Dr. Kaul's patients. (2AC ¶ 41).

         In 2010, Dr. Kaufman allegedly made defamatory comments to another of Dr. Kaul's patients, Corey Johnson. (2AC ¶ 41). In 2012, Dr. Kaufman also allegedly made defamatory comments to another of Dr. Kaul's patients, John Zerbini. (Id.). Mr. Zerbini later testified on behalf of the State in the 2012-2013 disciplinary proceedings against Dr. Kaul, discussed supra (See id. ¶ 46).

         On March 3, 2011, Dr. Kaul opened the NJSR Surgical Center, a Medicare certified, AAAHC (Accreditation Association for Ambulatory Health Care) accredited facility in Pompton Lakes, New Jersey. (2AC ¶ 40). The NJSR Surgical Center is the facility at which Dr. Kaul performed interventional spinal procedures and outpatient minimally invasive fusions and discectomies. (Id.).

         NJSR allegedly received favorable publicity. In 2011, The Record (a newspaper serving Bergen County and Northern New Jersey) reported that NJSR Surgical Center had a zero percent post-operative infection rate. (Id. ¶ 39). In August 2011, Channel 12 News produced a segment on Dr. Kaul's work, which allegedly prompted unidentified members of the "New Jersey neurosurgical community" to tell non-party Robert McGann that this "was the last straw." (2AC ¶ 47).

         From March 2011 to April 2012, Dr. Kaul's practice grew 300% (from some unspecified baseline). (2AC ¶ 43). Dr. Kaul summarizes his own skills thus:

[Dr. Kaul] performed cases on an outpatient basis, that[, ] although termed 'complex' by neurosurgeons, proved to be simple, because of the surgical techniques employed by Kaul. Many neurosurgeons do not have good hand-eye coordination skills, and Kaul observed during many of the CME courses, that their ability to maneuver minimally invasive spine instruments was clumsy. ... In the U.S. the completion of a residency and board certification, do not require the graduate to pass a technical skills test, but simply a written and oral examination. That would be akin to issuing a driver's license without the road test. Thus, the only way that one could compare the abilities of two surgeons, as for example with two baseball players, is to observe them in action. Kaul's videos demonstrate him in action, while no video evidence exists to support the technical abilities, or lack thereof, of any of the other physician defendants.

(2AC, ¶ 43-44).[12]

         In April 2012, Dr. Kaul's medical license was suspended. (2AC ¶ 44). At that time, he suggested to the medical board that he be independently observed. This request was ignored. (Id.).

         In late 2013, Dr. Peterson allegedly called Dr. Kaul a murderer. Peterson made that statement to one of Kaul's employees, Linda Reyes, whose brother Dr. ...

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