State Board Revokes License of North Wildwood Physician

STATE DIVISION OF CONSUMER AFFAIRS PRESS RELEASE:
NEWARK — The State Board of Medical Examiners yesterday (Wednesday, July 8) revoked the license of a North Wildwood-based physician following an undercover investigation that found the physician created false patient diagnoses to prescribe pain killers.
The Board’s decision to revoke the license of Dr. John G. Costino, Jr., comes after a hearing held before an Administrative Law Judge andmirrors the recommendation of the judge. Costino also must pay $10,000 in civil penalties and reimburse the state its investigative costs. He cannot apply for reinstatement of his license until five years have passed.
Costino was found to have created false diagnoses to justify his prescribing of Percocet to undercover investigators who posed as patients during nine office visits in 2007 and for billing to medical insurance companies. During their visits, the undercover investigators told Costino that they were experiencing no pain but wanted a medication to help them relax.
“The Board’s order of revocation is appropriate, as Dr. Costino is a threat to the health, safety and welfare of the public,” Attorney General Anne Milgram said. “Dr. Costino had no medical justification for writing these prescriptions but he did so anyway.”
Dr. Costino created diagnoses of acute sprain and strain to the thoracic and lumbar spine without examining these areas when the undercover investigators came to him.
“Dr. Costino’s reckless and unprofessional actions show how the misuse of powerful pain killers can occur,” said David Szuchman, Consumer Affairs Director. “His actions demonstrated a flagrant disregard of Board rules and regulations and for the safety of his patients.”
The Board temporarily suspended Costino’s license in December 2007 and he has not seen patients since then.
Deputy Attorney General David M. Puteska represented the state in this matter.
Consumers can submit complaints against physicians through the Board’s web site at http://www.state.nj.us/lps/ca/bme/bmeform.htm or by calling the Board directly at 609-826-7100.
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The following Initial Decision is from the state Office of Administrative Law:
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. BDS10628-94
IN THE MATTER OF THE SUSPENSION
OR REVOCATION OF THE LICENSE OF
JOHN G. COSTINO, JR. , D.O.,
LICENSE NO. 25758,
TO PRACTICE MEDICINE AND SURGERY
IN THE STATE OF NEW JERSEY
________________________________________
Brenda Talbot Lewis, Deputy Attorney General, for complainant Board of Medical Examiners (Peter Verniero, Attorney General of New Jersey, attorney)
Steven I. Kern, Esq., for respondent John G. Costino, Jr., D.O. (Kern, Augustine, Conroy & Schoppmann, attorneys)
Record Closed: January 14, 1998 Decided: February 24, 1998
BEFORE ROBERT S. MILLER, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On September 27, 1994, the Attorney General of New Jersey (complainant) filed a three-count complaint against respondent John G. Costino, Jr., D.O., seeking to impose sanctions against him for violating N.J.S.A. 45:1-13, N.J.S.A. 45:1-21(c), (d), and (e), and N.J.S.A. 45:9-16, and for failing to fulfill the statutory requirement of maintaining a good moral character, in violation of N.J.S.A. 45:9-6. The essence of the complaint was that respondent had traded drugs for sex with respect to two female patients and had over-prescribed and inappropriately prescribed controlled dangerous substances to those two patients, as well as to a third patient.
On November 1, 1994, the instant matter was filed in the Office of Administrative Law for determination as a contested case, pursuant to the New Jersey Administrative Procedure Act. A prehearing conference was held on February 8, 1995, with Judge Duncan. Subsequently, a settlement was agreed upon, but, as a result of a petition by respondent, the settlement agreement was later rescinded. The case was then rescheduled for hearing, and hearings were held on August 26, 27, 28 and 30, 1996, and on April 2, June 23, 25 and 26, October 24 and 28, and November 5, 1997.
After the close of complainant’s case ­ based largely on the testimony of two physicians and four fact witnesses ­ most of the allegations against respondent were dismissed for lack of proof. The two issues that remained were: (1) during the years 1987-1990 was it a per se violation of the Medical Practices Act for a physician to engage in consensual sexual relations with a patient because such conduct was malum in se? (2) was there insufficient medical justification for respondent to prescribe Dalmane to patient J.B. such as to constitute gross malpractice in violation of N.J.S.A. 45:1-21(c), repeated acts of negligence, malpractice, or incompetence in violation of N.J.S.A. 45:1-21(d), professional misconduct in violation of N.J.S.A. 45:1-21(e), indiscriminate prescribing in violation of N.J.S.A. 45:1-13, or gross malpractice or gross neglect in violation of N.J.S.A. 45:9-16?
Respondent’s case-in-chief consisted of the testimony of several fact and character witnesses, of one expert witness (Stanley Kern, M.D.), and of respondent himself. Over objection by respondent, I allowed Deputy Attorney General Lewis to present, by way of rebuttal, testimony of an expert in medical ethics (Edmund L. Erde, Ph.D.) and of three fact witnesses. Respondent’s rebuttal consisted of the testimony of two experts (Vincent A. Maressa, Esq., expert in medical-legal affairs, and Paul Armstrong, Esq., expert in medical ethics).
The record closed on January 14, 1998, upon the submission of a reply brief by respondent’s counsel.
Before setting forth my findings of fact, I believe that it may be useful to summarize the testimony of the witnesses.
SUMMARY OF TESTIMONY
In its direct case the complainant called six witnesses: David Weiss, D.O.; Investigator Robert Tarquini; M.K.; C.R.; N.F.H.; and Edward Schweizer, M.D.
Dr. David Weiss is an osteopathic physician who since 1982 has specialized in orthopedic medicine, although he has no residency training or certification in that field. He practices pain management and is a member of the American Academy of Pain Management. On direct examination he testified as to his understanding of the treatment provided to patient C.H. by Dr. Costino. He declared that he had no problem with Dr. Costino’s use of combinations of medications, or his use of Inderal, Esgic or Fiorinal. He stated, however, that he did not understand the ongoing use of Valium and intramuscular injections for pain management. He was of the opinion that Dr. Costino’s continued use of Valium for headaches on an extended basis was not indicated. He also said that respondent’s record-keeping was deficient, for failure to disclose a plan for treating the patient’s migraine headaches in a chronic mode.
On cross-examination, Dr. Weiss agreed that at the time respondent prescribed Valium, there were no warnings that it was a habituating drug. He further agreed that the requirements for patient records at the time in question were not as stringent as those subsequently imposed by the Board of Medical Examiners, and that he had mistakenly based his conclusion about record-keeping on his assumption that the current regulation was in effect at the time Dr. Costino was treating C.H. Dr. Weiss also conceded that his criticism of Dr. Costino’s use of Valium was misplaced; indeed, Dr. Costino’s use of Valium for an anxiety disorder was appropriate.
Dr. Weiss also testified with respect to Dr. Costino’s treatment of J.B., who ultimately committed suicide. He noted that respondent had made a diagnosis of dysfunctional anxiety and depression, and that he had warned the patient to not take alcohol. He also testified that according to the record the patient had stopped drinking by September 28, 1990, but that on January 9, 1991, the record reflected that the patient was drinking too much and that the patient “shall not drink alcohol at all.” He criticized respondent’s care of the patient on the basis of assumed lack of physical examinations, lack of progress notes, and use of Dalmane in a depressed person. His criticism of the use of Dalmane was premised upon his reading of the Physicians’ Desk Reference (PDR).
On cross-examination Dr. Weiss agreed that Dalmane was first prescribed for J.B. in April 1990, and not again until August 31, 1990. Dalmane was again prescribed on November 19, 1990, December 14, 1990, January 9, 1991, and February 1, 1991, for a total of six Dalmane prescriptions over a period of ten months. Each prescription was for thirty tablets. Dr. Weiss admitted that the PDR did not suggest that Dalmane could not be prescribed to someone who drinks, but only that a warning should be given not to use Dalmane while imbibing alcoholic beverages. He also agreed that it would be reasonable for a physician to try to find a substitute for alcohol to help a patient sleep, and that the record indicates repeatedly that the patient had stopped drinking, at least on a daily or regular basis.
Dr. Weiss also acknowledged that he is not a psychiatrist, that he does not practice psychiatry, and that he does not treat patients who suffer from a combination of anxiety, depression and insomnia. He also agreed that the PDR could have indicated that Dalmane is contraindicated in patients with a history of alcohol use or abuse, but did not. Ultimately, Dr. Weiss conceded that respondent complied with the PDR warnings and that there was nothing in the record to suggest that J.B. was using the Dalmane concurrently with drinking, or the day after.
The second witness called by the complainant was Robert Tarquini, an investigator in the office of the Attorney General. Tarquini testified that he interviewed Dr. Costino on three occasions. On the first two occasions he took notes during the course of the interview; during the third interview he did not make notes until afterward. These notes were intentionally destroyed pursuant to a policy of the Division of Criminal Justice. According to Investigator Tarquini, during the interview of April 13, 1992, Dr. Costino told him that he had a sexual relationship with G.G., and that he did not love her but cared for her because she was a nice person. He also said that he made love to his wife but “screwed” G.G. on April 13, 1992, Dr. Costino told Investigator Tarquini that the relationship began before G.G. was his patient, but during a subsequent interview he said that the relationship may have started after she was his patient. Dr. Costino said the “relationship” ended two or three weeks before G.G. relocated to Nevada in the summer of 1991. Tarquini also stated that Dr. Costino admitted to being married during part of the relationship with G.G., and admitted that he and G.G. had sex in his automobile, in his office, in his home, in his condominium in North Wildwood, and in G.G.’s brother’s apartment. According to Tarquini, respondent initially said that he never gave G.G. controlled dangerous substances or prescriptions for these substances while he and G.G. were in his van, but during a second interview he said he may have given her samples of Fiorinal with codeine and/or prescriptions for Fiorinal with codeine while they were in his van. On May 20, 1992, according to Tarquini, respondent told him that he knew it looked bad that he gave G.G. prescriptions and/or samples of Fiorinal with codeine immediately after having sex with her in his van. Tarquini acknowledged that Dr. Costino was willing to meet with him and talk to him at length, that he answered all of his questions, and that he was cooperative.
M.K. was the third witness called by the complainant. She is the mother of C.H. She testified that one day in September 1989 she saw Dr. Costino enter her daughter’s home and, after Dr. Costino left, C.H. admitted that she had had sex with him. She said that she did not know if Dr. Costino had called her daughter or if her daughter had called him, or what they said to each other.
C.R. was called as the complainant’s fourth witness. She is C.H.’s sister. She testified that at times she drove her sister to Dr. Costino’s office because her sister had a migraine and would not be able to drive home after receiving an injection for her headache. She also testified that C.H. told her that Dr. Costino had visited her in the hospital, that he had told her not to say anything about her visits to him, and that she was afraid of him. On cross-examination, C.R. admitted that the conversation with C.H. took place on the day after C.H.’s surgery, while she was still under the influence of anesthesia.
N.F.H., the late C.H.’s husband, was called next. He testified that C.H. went to Dr. Costino for treatment of migraine headaches, that these headaches were so severe they caused her to cry, and that respondent agreed to see her as late as 10:00 p.m. He would have to drive her because the injection would “put her out.” According to N.F.H., while in the hospital after shooting herself, C.H. told him that she had been having a sexual relationship with Dr. Costino and that she shot herself because she was afraid that he (N.F.H.) would find out. He also testified that she told him that Dr. Costino wouldn’t give her an injection if she didn’t do sexual favors for him. On cross-examination N.F.H. confirmed that his wife had been in severe pain when she saw respondent, that the pain was debilitating, and that it had caused her to cry. He also acknowledged that for several years he and C.H. had used cocaine about once or twice per month.
Edward Schweizer, M.D., was also called by the complainant. Dr. Schweizer did a four-year psychiatric residency at the University of Pennsylvania Hospital, followed by a two-year residency at the National Institute for Mental Health, and psycho-pharmacology research in the Department of Psychology at the University of Pennsylvania School of Medicine. Dr. Schweizer’s testimony was limited to respondent’s treatment of G.G. He spent a considerable amount of time reviewing, analyzing and explaining respondent’s records with respect to this patient. He was unable to complete his testimony on April 2, 1997. Subsequently, in lieu of any further testimony, he submitted an amended report (Exhibit C-8), which in pertinent part declared:
I have read the medical record of G.G. . . . Even though this documentation may not be optimal, it is not outside the standard of care in the medical community.
As his first witness, respondent called State Senator James Cafiero. Senator Cafiero is an attorney who has known respondent for twenty-two years. Respondent has been his own family physician, and the physician for his wife and three sons, for many years. At no time has he ever heard anything but the “highest praise” for Dr. Costino as both a doctor and a member of the community. Senator Cafiero noted respondent’s work as a volunteer medical director of a rehabilitation and counseling center for young people, and as president of the Cape May County Union League. He testified that Dr. Costino was available for his patients day or night.
Respondent’s next witness was a pharmacist, Aldo A. Palumbo. Mr. Palumbo has known respondent for twenty-two years. He maintains a community pharmacy in North Wildwood. He is also the mayor of North Wildwood. Dr. Costino has treated Mr. Palumbo and his sons. According to Mr. Palumbo, Dr. Costino is well respected, his professionalism has been exemplary, his integrity and his character are excellent. He frequently reviews Dr. Costino’s prescription writing and has never had a problem with his prescribing practices, which he described as excellent.
Victor Yorio, a Catholic priest, also testified for the respondent. Father Yorio is an addiction specialist who works with alcohol- and drug-related cases. Mr. Yorio has known Dr. Costino since they were both teaching at Camden Catholic High School. He testified that Dr. Costino was the medical director of a drug and alcohol program originally called “Junction” and now called “Cape Counseling,” that he acted in that capacity without payment, and that he was available to the program twenty-four hours a day, seven days a week.
James Elsey has known respondent for over twenty years. He testified that Dr. Costino has a very good reputation in the community. He also testified that he had been interrogated by Investigator Tarquini, who told him that they already knew that Dr. Costino had been trading sex for drugs, that he was not going to be a doctor anymore, and that he was free with drugs. Elsey got the impression that Investigator Tarquini had a personal vendetta against respondent.
Judith Devlin, who was born and raised in North Wildwood, testified that respondent’s reputation for honesty and integrity was very good and that she has never known him to lie. She has seen respondent professionally for migraine headaches; he has met her in his office after hours to treat her, including giving injections of Demerol. When asked if respondent ever made sexual advances, she responded in the negative.
Hazel MacDonald was called next by the respondent. She too has been a patient of respondent and has known him for many years. She declared that he is very highly regarded, that he is “always there when needed,” and that he once made a house call to her home at 2:00 a.m. when her grandmother died. At times, respondent has seen her after hours, but he has never tried to take advantage of her.
Robert Maurer, D.O., was also called as a character witness. Dr. Maurer is an osteopathic physician who has been in general practice for thirty-four years. He is an associate professor of clinical family medicine and the medical director of one of the clinical sites of the UMDNJ school of Osteopathic Medicine. He is board certified in family practice. He is also a past-president of the New Jersey Association of Osteopathic Physicians and Surgeons, a past-president of the New Jersey Osteopathic Education Association, and a past-president of his county medical society. He has known respondent for almost twenty years. He testified that Dr. Costino has an excellent reputation in the community, and he stated that his high regard for respondent is not diminished by the fact that respondent had sexual relations with two female patients during the late 1980s.
Stanley Kern, M.D., was called by respondent as an expert in medicine, psychiatry and forensic medicine, and was accepted by me in that capacity. Dr. Kern is board certified by the American Board of Psychiatry and Neurology in general psychiatry with a subspecialty in forensic psychiatry. He is also board certified by the American Board of Forensic Psychiatry, of which he has served as president. He is a clinical associate professor of psychiatry at the New Jersey Medical School, UMDNJ, and an adjunct associate professor of law at Rutgers Law School. He was chief of forensic service at the University Hospital, president of the New Jersey Psychiatric Association, president of the New Jersey Psychoanalytic Society, and vice president of the American Academy of Psychiatry and the Law.
Dr. Kern testified with respect to the appropriateness of Dr. Costino’s treatment of J.B. He called the treatment “a perfectly reasonable and appropriate prescribing of medication.” The fact that the patient was noted to have been drinking in no way changed his opinion, based upon his understanding that J.B. was using the alcohol in order to help him sleep and that Dr. Costino was trying to substitute medication for use of alcohol. Dr. Kern has often done this himself. While Dr. Kern would have been concerned if the patient continued to drink during the time he was taking Dalmane, he would still prescribe it in an attempt to influence him to stop drinking. When asked if he would discontinue the Dalmane, he answered, “Absolutely not, because that would substitute for the alcohol. If the Dalmane was withdrawn, the patient would probably return to drinking excessively.” Dr. Kern declared that he saw no evidence to indicate that the patient was suicidal. It was his opinion that J.B. would be considered mildly to moderately depressed, and that J.B.’s suicide was probably an impulsive act that could not have been predicted.
Dr. Kern was also questioned about the propriety of a physician’s engaging in sexual relationships with patients in the late 1980s in New Jersey. He testified that the only prohibition at that time applied to psychiatrists. With respect to the Hippocratic oath, Dr. Kern said that he believed it prohibited only the use of coercion or undue influence on the part of the physician to induce a patient to engage in a sexual relationship. He contended that there is a big difference between ethical and legal proscriptions. He stated that there has been an evolution over the past ten years with respect to the propriety of physician-patient sexual relationships. An outright prohibition was first applied to psychiatrists, then to psychologists, and finally, in the mid-1990s, to physicians in general. However, he conceded that for a long time there has been a prohibition against a physician’s taking advantage of his position, sexually, monetarily or otherwise.
The respondent next called John Sweet, a chartered life underwriter who was a longtime friend of J.B. Mr. Sweet testified that during the last few weeks before J.B.’s death, there were no outward signs that J.B. was suicidal. He was operating a successful business and maintained an active social life. He had a regular girlfriend. The weekend before his death he went bowling. The night he died he and Sweet went to the mall together. J.B. was planning a vacation to Europe in two weeks with his girlfriend, and the tickets had already been purchased. On the night J.B. committed suicide, Sweet saw no evidence of depression. To the best of his knowledge, J.B. had not been drinking daily during the months immediately preceding his death.
Respondent, John G. Costino, D.O., also testified. He has been licensed as a physician in New Jersey since 1971. He is a charter member of the American College of Emergency Physicians and is board certified in general medicine, in sports medicine and in forensic medicine. He is a diplomate of the American Academy of Pain Management, is affiliated with Burdette Tomlin Memorial Hospital, and has worked at Cooper Medical Center and Kessler Memorial Hospital. He has helped run the methadone clinic at Cooper Medical Center and has been heavily involved in volunteer work, including serving as the medical director of “Cape Counseling.”
J.B. was respondent’s third cousin. Respondent declared that in 1990 he prescribed Dalmane for J.B. because he had become an insomniac and had been drinking alcohol to get to sleep. He continued to treat J.B. with Dalmane, intermittently, until February 1991. He frequently warned J.B. not to imbibe alcohol while taking this medication. As far as he knew, J.B. was not drinking and using Dalmane at the same time. Dr. Costino declared that he saw no evidence of any suicidal tendencies on the part of J.B., nor did he believe that J.B. was severely depressed.
Respondent also testified that he first engaged in sexual relations with C.H. in the late 1970s. This relationship lasted for two or three months. At the time, C.H. was not his patient. She became a patient some months thereafter. He stated that his treatment of her was not affected by the fact that they previously had been sexually involved. About ten or eleven years later, in the late 1980s, Dr. Costino and C.H. renewed their relationship when C.H. called him on the phone and told him that she wanted to see him. C.H. came to his home with a bottle of wine. It was obvious to respondent that C.H. was interested in sexual activity during that visit, and, in fact, they engaged in sex that evening. They also had sexual relations on at least two other occasions. The second occasion was similar to the first. The third occurred on September 16, 1989, when C.H. induced Dr. Costino to come to her home, allegedly to treat a lacerated finger. Respondent stated that none of these sexual encounters affected his treatment of C.H., nor was his treatment conditioned upon her agreement to have sex with him. As far as he knew, from 1987 through 1990 there were no per se prohibitions on a physician engaging in sexual activities with a patient. Had there been, he said, he would not have engaged in sexual relations with either C.H. or G.G.
respondent testified that he was in love with G.G. He first met her in the summer of 1985 and had sexual relations with her during the next two months. In January 1986 he saw her professionally when she came to his office and he diagnosed her as having a mitral valve prolapse. In February her brother told him that she had gotten married and moved to Philadelphia. He did not see her again until September 1986, when she returned to see him, five months’ pregnant, complaining of anxiety and shortness of breath. Sometime in the fall of 1988 G.G. called respondent and asked him to pick her up. He did so. They drove around and talked and, later that day, renewed their “romantic relationship.” No medical care was provided to her on that day. This relationship continued for approximately eight to ten months. Respondent stated that she was in love with him, and he with her. His medical care of her, he declared, was no different during their “romantic relationship” than it was before or after that relationship, and his medical care was in no way conditioned upon her willingness to engage in a sexual relationship with him. Dr. Costino denied telling Investigator Tarquini that he did not love G.G. or that he made love to his wife but “screwed” G.G. He also denied telling Tarquini that he gave G.G. samples of Fiorinal with codeine in his van. Nor, he said, did he ever tell Tarquini that it “looked bad” that he gave G.G. prescriptions and/or samples of Fiorinal with codeine immediately after having sex with her in his van.
Complainant called four rebuttal witnesses: Janis Vona, Michael Carducci, Charles Janousek and Edmund Erde.
Janis Vona is an investigator with the New Jersey Division of Criminal Justice. She worked on the Costino case with Mr. Tarquini and was present during his interviews. Her testimony was limited to rebuttal of the testimony of Mr. Elsey, Mrs. Devlin, and Ms. MacDonald, in effect denying their allegations that Tarquini was intimidating, coercive, and unfair, and exhibited a personal animus towards respondent.
Michael Carducci is an investigator with the Enforcement Bureau of the State of New Jersey. He testified that Dr. Costino met with him in April 1991 and described J.B. as suffering from severe depression, anxiety, and insomnia, that J.B. had been taking certain medications and had also been involved in some heavy drinking. He also testified that respondent told him that he had had a relationship with C.H. in 1978 or 1979, that he was single and she was either single or divorced or separated, and that although they had a romantic relationship, it was not going to lead to marriage. He further testified that Dr. Costino felt that C.H. had used the relationship to get prescriptions from him. On cross-examination Mr. Carducci admitted that he destroyed his handwritten notes of his interview with Dr. Costino pursuant to Enforcement Bureau policy. He further testified that his report was significantly different from his handwritten notes, and that he believed Dr. Costino was speaking retrospectively, i.e., in hindsight, when describing J.B. as “severely” depressed. Carducci also testified that respondent was forthright, honest and open in responding to his questions, that respondent did not have a lawyer present when he was questioned, and that he did not refuse to answer any questions.
Charles Janousek is the deputy executive director of the Board of Medical Examiners, where he has worked since August 1976. Mr. Janousek was called to introduce three Orders involving disciplinary actions against physicians. He admitted that each of the Orders was entered after the conduct by respondent which forms the basis of the instant complaint.
Mr. Janousek was then called as respondent’s witness. He acknowledged that prior to 1996 there was no regulation of the Board of Medical Examiners prohibiting sexual relationships between physicians and their patients and that the regulation that now exists may have been proposed after the filing of the complaint in the case of In re Kunish, 96 N.J.A.R.2d (BDS) 9 (Board of Medical Examiners). He also testified that prior to 1996 there was no written policy of the Board, published in the medical community, making it unethical or unlawful for a physician (other than a psychiatrist) to engage in consensual sexual relations with a patient. He conceded that the guidelines and recommendations of the American Medical Association (AMA) have no force of law as far as the Board of Medical Examiners is concerned, that pronouncements of the AMA have no precedential value with the Board, and that physicians are not obligated to follow AMA pronouncements. Finally, Mr. Janousek testified that the only way anyone would be aware of a complaint filed by the Board is if he or she reviewed its open discipline agenda and then requested a copy. Only 75 to 100 of the Board’s 30,000 licensees receive copies of these minutes, and the minutes only provide a synopsis of the action taken. He agreed there is no obligation by physicians to make themselves aware of public documents of the Board other than rules and regulations published in accordance with the Administrative Procedure Act.
Complainant also called Edmund L. Erde, Ph.D. He is a professor of family medicine at the University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine, where he teaches medical ethics. He was formerly a professor of medical ethics at the University of Texas. Although neither an attorney nor a physician, he was offered and accepted by me as an expert in the area of medical ethics. Dr. Erde testified that there is a difference between a physician’s legal obligations and his ethical obligations; commonly, ethical obligations exceed legal ones. It was Dr. Erde’s opinion that, with two exceptions ­ (1) a physician treating a spouse, and (2) a physician treating a person with whom he/she had a long-term emotional relationship ­ it was unethical in the late 1980s for a physician to have sexual contact with a patient, even when the sexual relationship was apparently consensual. The reason for this ethical prohibition, according to Dr. Erde, is that a great deal of primary medical care is emotional in nature, and the patient may be “acting out” or otherwise suffering from a mental disorder (such as bipolar illness).
Dr. Erde recounted the history of the AMA’s articulation of its policy regarding sexual relationships between physicians and patients. The first articulation occurred in 1989; it prohibited the physician from engaging in “sexual misconduct.” The AMA did not define what it meant by such misconduct until 1991, when it specifically declared it unethical for a physician to have sexual contact with a patient. Dr. Erde stated that in 1985 a Code of Ethics was published for osteopathic physicians. Section five of that code provided, in part: “A physician shall practice in accordance with the body of systematized and scientific knowledge related to the healing arts. A physician shall maintain competence in such systematized and scientific knowledge through study and clinical applications.” Dr. Erde was of the opinion that this section prohibits physician-patient sexual relations because the literature reveals that such relationships result in harm to both the patients and the practice of medicine.
In addition, Dr. Erde stated that “for many decades” it has been clearly unethical for a physician to have a sexual relationship with a patient. In his opinion this prohibition amounts to a “bright line” test. There are, he said, three reasons why it is unethical: (1) it “clouds” the physician’s medical judgment; (2) it endangers the patient’s ability to discontinue treatment or his/her ability to discontinue the relationship (while still remaining a patient); and (3) there is a great deal of psychiatry involved in rendering primary care.
On cross-examination, Dr. Erde admitted that he does not know of any single medical journal generally circulated to the osteopathic community in New Jersey before 1990 that spoke of a prohibition against consensual sexual relations between doctors and patients. He also admitted that in the Kunish case he testified that in order to determine if an ethical violation has occurred, one must first determine if there was an abuse of the doctor-patient relationship. When pressed further, he agreed that whether the sexual contact is unethical “depends on the circumstances.” Finally, he conceded that the Hippocratic oath does not have the “force of law” and is not legally binding, that much of it is archaic and no longer valid, and that some translations of the oath contain no explicit prohibitions against a physician having sexual contact with a patient.
Respondent called two rebuttal witnesses of his own: Vincent A. Maressa, Esq., and Paul Armstrong, Esq.
Vincent A. Maressa, a licensed attorney of New Jersey, is, and since 1973 has been, executive director and general counsel of the New Jersey Medical Society. He was qualified as an expert in medical-legal affairs. He was present during the 1980s at all of the meetings of the House of Delegates (the legislative body) of the AMA. Mr. Maressa expressed the opinion that from 1988 to 1990 it was the prevailing view of both the AMA and the New Jersey Medical Society that consensual sex between physicians and patients was not per se unethical, i.e., that one had to examine the facts of each case in order to make such a determination. The two most important factors in finding unethical conduct were whether: (1) the physician-patient relationship was active and concurrent with the sexual relationship; and (2) the physician “exploited” his position, i.e., he either exercised undue influence over the patient or took advantage of a patient who was psychologically dependent upon him. In that regard, he declared that the fact that the physician prescribed pain-killing drugs for a patient does not per se equal exploitation.
Paul Armstrong, a licensed attorney of New Jersey, specializes in medical ethics. He has been a member of the New Jersey Bioethics Commission since its inception in 1985. He teaches courses in law, medicine and society at Rutgers Law School and at UMDNJ. He was offered by respondent and accepted as an expert in medical ethics. Mr. Armstrong expressed the following opinions: From 1988 through 1990, there was much argument and disagreement in the medical community about whether it was ethical or not for a physician to have consensual sex with a patient; even in the field of psychiatry there was no consensus until about 1990; in 1991 the AMA attempted to define what “sexual misconduct” on the part of a physician means, declaring that there had to be a showing that “but for the sex, the doctor would not have prescribed or treated”; each case had to be decided on its own set of facts, including whether or not the physician exploited his position and whether or not the relationship was based on a quid pro quo, i.e., sex-for-treatment, basis. Armstrong was of the opinion that respondent’s relationships with G.G. and C.H. did not fall within the ethical proscriptions that existed from 1988 through 1990. He further stated that even today there is “an evolving and ongoing debate” on whether or when sex between a physician and a patient is prohibited. he opined that in New Jersey, until 1996, for a physician to have consensual sex with a patient was merely “frowned upon.” Finally, he asserted that an ethical transgression by a physician does not per se equal professional misconduct or warrant the imposition of sanctions; it all depends on the specific facts of each case.
FINDINGS OF FACT(1)
1. Respondent, a duly licensed physician of New Jersey, graduated from Rutgers University in 1966 and from the Philadelphia College of Osteopathic Medicine in 1971.
2. Respondent’s medical credentials and experience include the following: diplomate, American Board of Quality Assurance and Utilization Review Physicians; diplomate and board certified, forensic examiner, American College of Forensic Examiners; diplomate, American Academy of Pain Management; president, American Osteopathic College of Rheumatology; vice president, Cape May County Osteopathic Medical Society; charter member, American College of Emergency Physicians; board member, Board of Trustees, Professional Review Organization of New Jersey; director, emergency medicine, Millville Hospital (1972-1974); director, emergency medicine, Kessler Memorial Hospital (1975-1976); medical examiner, State of New Jersey, Division of Disability Determinations (1976-present); and staff member at Burdette Tomlin Memorial Hospital (1976-present).
3. Respondent maintains a private practice of medicine in North Wildwood (Cape May County), New Jersey.
C.H.
1. Respondent first met C.H. in 1978 or 1979 when she was approximately twenty-one years of age. She was not a patient of his at that time, and they had a sexual relationship which lasted two or three months. several months after their sexual relationship ended, she sought his help professionally and he treated her.
2. On November 24, 1982, C.H. married N.F.H. During the first seven years of their marriage, C.H. and her husband were users of various “street drugs,” including cocaine. Respondent did not become aware of that fact until sometime after he had stopped treating C.H. in early 1991.
3. Respondent next saw C.H. on August 13, 1985, when C.H. visited his office complaining of back pain and difficulty breathing. Chest and forensic spine x rays were negative. Respondent prescribed Robaxisal. On August 15, 1985, C.H. returned for a follow-up visit; she was prescribed Dolobid, 500 mg, and Valium, 10 mg at bedtime.
4. Dr. Costino next treated C.H. on July 20, 1987, and on various dates thereafter in 1988, 1989 and 1990. From February 1989 through the end of that year Dr. Costino saw C.H. several times each month. He saw her again on January 12, 1990, and January 15, 1990. C.H.’s chief and most frequent complaint was of migraine headaches. She also complained of PMS, of injuries to her cervical and lumbar spine, of a persistent cough, and of other ailments. During this period of time, respondent prescribed Fioricet, Valium, Wigraine, Zantac, Tranxene, Fiorinal, Halcion, Inderal, Esgic, and Tylenol #4 with codeine, etc., for C.H., and at various times he gave her injections of Demerol and Phenergan.(2)
5. On several occasions during the years 1987, 1988 and 1989 respondent and C.H. engaged in consensual sex, there being no evidence that respondent exploited his position or exercised undue influence over C.H. to induce her to have sex with him.
6. On or about January 17, 1990, C.H. attempted suicide by shooting herself. Her suicide attempt was unsuccessful and she made at least a partial recovery. However, she died, for reasons that were not established on the record, in early 1991.
7. Respondent last wrote prescriptions for C.H. on or about April 2, 1990. These were for Fiorinal, Vicodin, and Flexeril.
G.G.
1. Respondent first met G.G. in the summer of 1985. Shortly thereafter they began a sexual relationship that lasted for two or three months.
2. In approximately January 1986, G.G. sought respondent’s help for a medical problem. Dr. Costino examined her and diagnosed her as having a mitral valve prolapse.
3. In February 1986, G.G.’s brother called respondent and advised him that G.G. had gotten married and moved to Philadelphia.
4. In or about September 1986, G.G. returned to respondent’s office, complaining of anxiety and shortness of breath.
5. In 1987 Dr. Costino began treating G.G. for postpartum anxiety, prescribing Motrin and Valium.
6. On numerous occasions during the period 1987-1991, respondent saw G.G. and treated her for various medical conditions and problems. His treatment consisted mainly of prescribing medications including Dolobid, Tylenol #3 with codeine, Fioricet, Motrin, Fiorinal #3, Adapin, Imodium, Xanax and Tussi-organidin. Thirty-five of the sixty-nine prescriptions authorized by respondent for G.G. from 1987 through 1991 were authorized in 1988.(3)
7. In or about the fall of 1988, respondent renewed his sexual relationship with G.G. Sexual acts between them occurred at various places, including his office. this time their sexual relationship lasted approximately eight to ten months. Respondent felt that their relationship was that of “lovers.”
8. The medical care which respondent provided to G.G. during this time was not affected by their intimate relationship, was not conditional, and was what it would have been if they had not had a sexual relationship.(4)
9. Sometime during 1991, G.G. moved out of the area and stopped being respondent’s patient.
J.B.
1. J.B., now deceased, was a third cousin of respondent.
2. Respondent first began treating J.B. in May 1979 for an earache. He treated J.B. for various ailments and medical problems on numerous occasions from 1980 through 1991.
3. The first specific reference in respondent’s office records to the fact that J.B. was having mental problems was on July 15, 1990. Respondent made a diagnosis of “anxiety/depression” and noted that J.B. was also suffering from insomnia. Respondent prescribed Mellaril, 30 mg, to be taken three times per day, and 50 mg at bedtime.
4. Respondent saw and evaluated J.B. and prescribed various medications for him on July 16, 1990; August 28, 1990; August 31, 1990; September 10, 1990; September 14, 1990; September 18, 1990; September 21, 1990; September 28, 1990; November 5, 1990; November 19, 1990; December 14, 1990; January 9, 1991; January 14, 1991; January 21, 1991; and February 1, 1991.(5)
5. Sometime between February 1, 1991, and February 5, 1991, J.B. committed suicide.
6. From October 28, 1989, to February 1, 1991, respondent prescribed for J.B. a variety of medications, including Zantac, Librium, Halcion, Xanax, Lithobid, and Dalmane.(6)
7. In or about June 1990 J.B. told respondent that he was imbibing alcoholic beverages to help him get to sleep. respondent prescribed Dalmane, specifically warning J.B. several times that he should not drink alcoholic beverages and use Dalmane at the same time. Subsequently, J.B. advised respondent that he had discontinued and/or reduced his alcohol use.
8. Although it was clear to respondent that J.B. was suffering from depression and anxiety from July 1990 to February 1991, it did not appear, either to respondent or to J.B.’s friends and associates, that he was severely depressed.
9. from July 1990 to February 1991, respondent believed that J.B. might have an alcohol addiction and referred him for counseling and/or to a detoxification facility; J.B., however, denied being an alcoholic and declined to enter the detoxification facility.
ISSUES AND ANALYSIS
As noted earlier, the two issues in this case may be stated as follows: (1) was it a per se violation of the Medical Practices Act during the years 1987-1990 for a physician to engage in consensual sexual relations with a patient because such conduct was malum in se? (2) was there insufficient medical justification for respondent to prescribe Dalmane to patient J.B. such as to constitute violations of N.J.S.A. 45:1-21(c) (gross malpractice), N.J.S.A. 45:1-21(d) (repeated acts of negligence, malpractice, or incompetence), N.J.S.A. 45:1-21(e) (professional misconduct), N.J.S.A. 45:1-13 (indiscriminate prescribing), or N.J.S.A. 45:9-16 (gross malpractice or gross neglect)?
For the reasons to be expressed hereafter, I CONCLUDE that both of these questions should be answered in the negative.
1. Physician-Patient Sexual Relations
This is a case of first impression in New Jersey. There is no statute, and there are no reported cases, dealing squarely with the issue. There is, however, a rule, N.J.A.C. 13:35-6.3. It provides that a licensee “shall not engage in sexual contact with a patient with whom he or she has a patient-physician relationship.” “Sexual contact” is defined as:
the knowing touching of a person’s body directly or through clothing, where the circumstances surrounding the touching would be considered by a reasonable person to be motivated by the licensee’s own prurient interest or for sexual arousal or gratification. “Sexual contact” includes, but is not limited to, the imposition of a part of the licensee’s body upon a part of the patient’s body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or patient’s body into or near the genital, anal or other opening of the other person’s body.
[N.J.A.C. 13:35-6.3(b)(4).]
“patient-physician relationship” means an association between a physician and a patient wherein the physician owes a continuing duty to the patient to be available to render professional services consistent with his or her training. N.J.A.C. 13:35-6.3(b)(3). This relationship is considered to be ongoing(7) unless “actively terminated, by way of written notice to the patient and documentation in the patient record; or the last professional service was rendered more than one year ago.” N.J.A.C. 13:35-6.3(c).
N.J.A.C. 13:35-6.3 was proposed January 2, 1996, and adopted May 20, 1996. 28 N.J.R. 65(a); 28 N.J.R. 2560(a). In its summary statement, the Board of Medical Examiners states:
Sexual contact is banned between those in an ongoing physician-patient relationship. The relationship is considered ongoing unless terminated by a notice in writing or unless one year has elapsed since the last professional service was rendered to the patient. The Board believes that a formal termination of the physician-patient relationship is the minimum acceptable action necessary prior to engaging in a personal intimate relationship.
[28 N.J.R. 65(a).]
The rule states that it is not a defense to any action under the rule that “[t]he patient solicited or consented to sexual contact with the licensee” or that the licensee “was in love with or had affection for the patient.” N.J.A.C. 13:35-6.3(l)(1) and (2). A comment was received with regard to this section, stating that the unavailability of such a defense “seems to be against fairness and human rights” and that to “downgrade love” in such a way is “demeaning and counterproductive in a violent society.” 28 N.J.R 2560(a), 2561. The Board’s response was, “Physicians are responsible for maintaining professional boundaries with patients. Regardless of a patient’s or licensee’s feelings, it is misconduct to engage in such activity during an ongoing patient-physician relationship. Therefore, [the rule] clarifies that a patient’s feelings for a licensee or the licensee’s feelings for a patient cannot be used as a defense for a licensee if charged with a violation of the rule.” Ibid.
The rule does provide an exemption for licensees to treat spouses or individuals with whom they are engaged in long-term committed relationships prior to the beginning of any treatment. 28 N.J.R. 65(a). Although the language “prior to the beginning of any treatment” is used in the Board’s summary statement, it does not appear in the actual rule. The rule states that a licensee can render a medical examination or treatment to such spouse or individual, “providing that the rendering of such service is consistent with accepted standards of medical care and that the performance of medical services is not utilized to exploit the patient for the sexual arousal or sexual gratification of the licensee.” N.J.A.C. 13:35-6.3(k).
Prior to the adoption of N.J.A.C. 13:35-6.3, there was no published standard in New Jersey regarding physician-patient sexual relations. The Board’s summary with the proposal of N.J.A.C. 13:35-6.3 states, “The State Board of Medical Examiners is proposing a new rule to codify long established standards for its licensees barring sexual contact with patients.” 28 N.J.R. 65(a). The Board stated:
The proposed new rule has been developed with the aid of an extensive review of the codes, rules, and guidelines of various professional organizations and of relevant legal and professional literature. . . . The Board has examined the American Medical Association Code of Medical Ethics, the Ethics Manual of the American College of Physicians, the American Psychological Association Ethical Principles and Code of Conduct, the American Psychoanalytic Association Principles of Ethics, and an opinion of the American College of Obstetricians and Gynecologists Committee on Ethics pertaining to sexual misconduct. The American Medical Association in the 1994 edition of its Code of Medical Ethics identifies sexual conduct with patients as detrimental to physician judgment and harmful to patient well-being. The harm to patients and impact on physician judgment are also recognized and discussed in the 1991 report of the Council on Ethical and Judicial Affairs of the American Medical Association. The Board agrees that such conduct endangers patients’ physical, as well as psychological, well-being. . . . These ethical codes are unanimously in accord in condemning physician-patient sexual contact as unethical and harmful conduct.
[28 N.J.R. 65(a)-66.]
The rule itself contains an appendix, titled “Policy Statement Regarding Sexual Activity Between Physicians and Patients and in the Practice of Medicine.” This appendix was included in the proposal and adoption of N.J.A.C. 13:35-6.3, but is meant only as an advisory to licensees to guide professional behavior. It states:
It is beyond dispute that sexual contact with patients is in conflict with the very essence of the practice of medicine.
However, this rule was adopted in 1996, five to nine years after respondent had the sexual relationships with C.H. and G.G. that formed the basis for the instant complaint. As is well known, retroactive application of an administrative rule is not favored. Citizens v. Dept. of Env. Protection, 252 N.J. Super. 62, 76 (App. Div. 1990), aff’d 126 N.J. 391 (1991). As the court stated in Seashore Ambulatory Surg. Ctr. v. Dept. of Health, 288 N.J. Super. 87, 97 (App. Div. 1996):
The general rule is that legislation and regulations have prospective effect. Prospectivity is favored because “retroactive application of new laws involves a high risk of being unfair.”
The Attorney General seeks to overcome this principle by citing 6 cases ­ five of which were unpublished final orders and one of which was a decision published in 1995 ­ and arguing that “sexual relationships, whether instigated by the physician or the patient, are and always have been unethical on the part of the physician, and constitute professional misconduct.”
For the reasons that follow, I believe this argument is misplaced. First, it runs contrary to the testimony of Charles Janousek, the deputy executive director of the Board of Medical Examiners, who stated that the only notice a physician would ordinarily have of final orders and unpublished decisions of the Board of Medical Examiners would be by reviewing the Board’s open disciplinary minutes. Yet, only about 75 of the Board’s 30,000 licensees receive copies thereof. Moreover, there is no obligation on the part of licensees to make themselves aware of Board minutes; their only obligation is to be aware of and comply with rules and regulations published in accordance with the New Jersey Administrative Procedure Act. As such, it is unrealistic and unfair to expect the licensee to know of and to abide by the orders and unpublished decisions that the complainant relies on.
Furthermore, it is well established that creation of new policy cannot be accomplished by case decision, but must be done by regulation. In Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 331-32 (1984), the Court held that:
an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.
. . . If the several relevant features that typify administrative rules and rule-making weigh in favor of action that is quasi-legislative in character, rather than quasi-judicial or adjudicatory, that balance should determine the procedural steps required to validate the ultimate agency action.
Applying the Metromedia test to the instant case, it is clear that a determination by the Board to create a per se prohibition on a physician engaging in sexual relations with a patient requires rule-making:
1) Any per se prohibition of sexual relations with patients would have wide coverage encompassing a large segment of the regulated public. Indeed, it could potentially affect every physician, especially in its broadest scope, prohibiting sexual relations between physician and spouse.
2) The prohibition sought here would be applied generally and uniformly to all similarly situated persons. The deputy attorney general does not suggest that Dr. Costino is being singled out for special treatment. She argues that these cases provide uniform and universal prohibitions applicable to all physicians in all circumstances.
3) A per se prohibition would also prescribe a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization. This is demonstrable by the widely diverse regulatory prohibitions applied by other states. See, In re Kunish, supra, 96 N.J.A.R.2d (BDS) at 14, where the Attorney General’s expert agreed that “only four states [statutorily] prohibit sexual acts between physicians and patients, twenty-five states have no prohibitions, and the rest preclude sexual relations only where there is a psychotherapeutic relationship, sexual harassment, undue influence, or some other disparity in power, status or vulnerability.”
4) A per se prohibition on sexual activity with a patient would reflect an administrative policy that was not previously expressed in any official and explicit agency determination, adjudication or rule. The only agency determinations cited by the complainant are unpublished Orders of the Board to which physicians practically have no access and no notice. More importantly, these orders are all dated after the conduct alleged and involve facts much different from those of the instant case. The only rule on the subject is the current rule, adopted in 1996, N.J.A.C. 13:35-6.3.
5) Finally, a per se prohibition would reflect a decision on administrative regulatory policy in the nature of interpretation of law or general policy. The Board’s authority for N.J.A.C. 13:35-6.3 is N.J.S.A. 45:9-2. N.J.S.A. 45:9-2 grants the Board the right to make and adopt all necessary rules, regulations and bylaws not inconsistent with the laws of the State or of the United States; it does not proscribe consensual sex between physician and patient, nor, to my knowledge, did any other New Jersey statute or regulation prior to 1996.
Where the balance of these factors favor rule-making, as is the case here, the agency is required to promulgate such rule in compliance with the Administrative Procedure Act. Metromedia, supra, 97 N.J. at 334. It cannot be accomplished by case adjudication (much less by reliance upon final Order), because the object of rule-making is:
the enactment of legislation of general application, prospective in nature. The object is not legislation ad hoc or after the fact, but rather the promulgation, through the basic statute and the implementing regulations taken as a unitary whole, of a code governing action and conduct in the particular field of regulation so those concerned may know in advance all the rules of the game, so to speak, and may act with reasonable assurance. Without sufficiently definite regulations and standards, administrative control lacks the essential quality of fairly predictable decisions. Persons subject to regulation are entitled to something more than a general declaration of statutory purpose to guide their conduct before they are restricted or penalized by an agency for what it then decides was wrong from its hindsight conception of what the public interest requires in the particular situation. (emphasis added)
[Id. at 337, quoting Boller Beverages, Inc., v. Davis, 38 N.J. 138, 151-52 (1962).]
The fact that the Board of Medical Examiners proposed, and in 1996 adopted, N.J.A.C. 13:35-6.3 is consistent with this view. Calling the rule a codification of “long established standards” and alleging that “[i]t is beyond dispute that sexual contact with patients is in conflict with the very essence of the practice of medicine” cannot excuse the Board from complying with the requirements of Metromedia and of the Administrative Procedure Act.
In addition, three of the four experts who testified in this case ­ Dr. Stanley Kern, Vincent Maressa, Esq., and Paul Armstrong, Esq.(8) ­ disagreed with the “beyond dispute” assertions of the Board. The crux of their testimony was that in the 1980s there was no consensus in the medical community on whether and when a physician could engage in a sexual relationship with a patient. Only Dr. Edmund Erde was of the contrary opinion, and Dr. Erde’s testimony was inconsistent in several important respects. For example, at one point in his testimony he stated that the physician-patient sexual relationship prohibition constituted a “bright line” test, but he later admitted that whether or not there was an ethical violation “depended on the circumstances.” Furthermore, Dr. Erde admitted that his opinion that respondent was guilty of an ethical transgression was based on two assumptions: (1) both women were suffering from “emotional distress” at the time respondent was having sex with them, and (2) respondent “recruited the patients” into his practice. There was, however, little evidence in this case with respect to the first assumption and no evidence at all with respect to the second.
The weight to be accorded an expert’s opinion depends upon the facts and reasoning upon which the opinion rests. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). Having carefully listened to and considered the testimony of all four of these experts, I do not hesitate to give greater weight to the opinions of Dr. Kern, Mr. Maressa, and Mr. Armstrong.
Also undercutting complainant’s argument that it is, and always has been, a per se violation of the Medical Practices Act for a physician to have sexual relations with a patient, is the case of In re Kunish, supra, 96 N.J.A.R.2d (BDS) 9. Kunish involved a physician who, in 1992 and 1993, had a six-month sexual relationship with a married women, not his wife. the Board decided that there was no professional misconduct, because the doctor did not exploit or abuse his position; the Board’s rationale was that Dr. Kunish and his patient had a serious, committed relationship with each other.
Moreover, the cases from other jurisdictions relied upon by complainant are distinguishable from the instant case. In Perez v. Missouri, 803 S.W.2d 160 (Mo. App. 1991), e.g., a gynecologist treated Mrs. F. for infertility. Treatment started in January or February of 1980; they began engaging in sexual intercourse in the summer of 1980. The court noted that “there was no sexual relationship between them prior to the beginning of their physician-patient relationship.” 803 S.W.2d at 163. The first time they engaged in sexual intercourse was in the doctor’s private office on a day when she went to him for medical advice. Before that date Dr. Perez had made sexual advances toward her during artificial insemination treatments and related office visits. According to the court,
The evidence reflects an effort on Dr. Perez’s part to take advantage of a patient whom he knew to be vulnerable. He gained her confidence by virtue of their physician-patient relationship and then abused the trust that she placed in him by taking advantage of her sexually.
[803 S.W.2d at 165.]
Likewise, statutes and regulations of other states(9) indicate that the prohibition against a physician’s engaging in sexual relations with a patient usually applies in cases of “abuse,” “undue influence,” or “exploitation” of the patient, or where the physician is providing psychiatric or psychotherapeutic treatment.
Finally, in cases of this kind it is well to bear in mind the admonition of the Supreme Court in In re Polk, 90 N.J. 550, 565-66 (1982) (physician found guilty of professional misconduct where evidence clearly established that he had “sexually imposed himself” upon three adolescent females):
The regulatory statute requires, in most instances, that a physician not be found guilty of professional misconduct unless his acts are so particularly egregious as to constitute misconduct in the magnitude of gross malpractice. By requiring a showing of flagrant misconduct, the Legislature has significantly increased the substantive burden which the State must bear in proving that professional dereliction warrants sanction. (emphasis added)
[Citations omitted.]
It is my opinion that the complainant has not carried its burden on this issue.
2. Treatment of J.B.
On this issue, complainant’s case against respondent is premised upon the testimony of Dr. Weiss, who was of the opinion that J.B. was an alcoholic, that respondent knew he was an alcoholic, and that respondent’s prescribing of the drug Dalmane to him under those circumstances was improper and unwarranted. Dr. Weiss’s opinion was based upon the 1987 edition of the Physicians’ Desk Reference, which declared that “patients receiving Dalmane should be cautioned about possible combined effects with alcohol and other CNS depressants” and that “an addictive effect may occur if alcoholic beverages are consumed during the day following the use of Dalmane for nighttime sedation.”
However, Dr. Weiss’s opinion was weakened considerably on cross-examination, when he admitted that: (1) the PDR does not proscribe the use of Dalmane for patients who drink alcoholic beverages, but only advises that the patients should be cautioned; (2) respondent’s medical records indicate that on several occasions respondent did caution J.B. and urged him to stop drinking; (3) it is acceptable medical practice for a physician to prescribe Dalmane as a substitute for alcohol in helping a patient get to sleep, and the record indicates that J.B. was suffering from insomnia and using alcohol to help him sleep; (4) there is no evidence in the record that J.B. was taking Dalmane and drinking at the same time; (5) to a large extent, his opinion was based on his belief that J.B. was severely depressed, that respondent knew he was severely depressed, and that respondent should have referred him for counseling to a psychologist or psychiatrist; and (6) Dr. Weiss is not a psychiatrist and does not practice psychiatry, and, in fact, the record indicates that respondent did refer J.B. to a psychologist (Dr. McEnerny) for treatment.
Furthermore, the opinion of respondent’s expert witness, Dr. Stanley Kern, was contrary to that of Dr. Weiss. As noted above, Dr. Kern’s credentials are superb, and his testimony was very persuasive. I found him to be an excellent witness: responsive, direct, candid, clear, careful and highly knowledgeable. It was his opinion that respondent’s prescribing of Dalmane under the circumstances then known to respondent was “perfectly reasonable and appropriate.”
I note also that respondent testified, credibly, that he warned J.B. on several occasions against taking Dalmane and drinking alcoholic beverages at the same time, and, further, that although he saw signs that J.B. was depressed, there was no indication that he was severely depressed. Dr. Costino’s testimony in this regard, moreover, was corroborated by that of J.B.’s longtime and close friend, John Sweet, who was with J.B. the night of his death and saw no indication that J.B. was depressed or suicidal. Mr. Sweet believed that J.B.’s behavior and conduct during the last few months of his life ­ including his plans for a European vacation ­ were indicative at the very least that he was not contemplating suicide.
It is well settled that the burden of proof in most administrative law cases is upon the agency. Atkinson v. Parsekian, 37 N.J. 143, 179 (1962); In re Polk, supra, 90 N.J. 550. On this issue, as on the first issue discussed above, complainant has been unable to carry its burden.
CONCLUSIONS AND ORDER
For the reasons expressed above, I CONCLUDE that the complaint against respondent should be DISMISSED. It so ORDERED.
I hereby FILE my initial decision with the BOARD OF MEDICAL EXAMINERS for consideration.
This recommended decision may be adopted, modified or rejected by the BOARD OF MEDICAL EXAMINERS, which by law is authorized to make a final decision in this matter. If the Board of Medical Examiners does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen (13) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the EXECUTIVE DIRECTOR OF THE BOARD OF MEDICAL EXAMINERS, 140 East Front Street, 2nd Floor, Trenton, New Jersey 08608, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties.
Date ROBERT S. MILLER, ALJ
Receipt Acknowledged:
Date BOARD OF MEDICAL EXAMINERS
Mailed To Parties:
Date OFFICE OF ADMINISTRATIVE LAW
tmpEXHIBITS
For complainant:
C-1 Prescriptions written for C.H. by Dr. Costino
C-2 Prescriptions written for J.B. by Dr. Costino
C-3 Prescriptions written for G.G. by Dr. Costino
C-4 Report of Dr. David Weiss dated August 9, 1994
C-5 Medical records (copies) of Dr. Costino for C.H.
C-6 Medical records (copies) of Dr. Costino for J.B.
C-7 Medical records (copies) of Dr. Costino for G.G.
C-8 Statement of Dr. Edward Schweizer dated June 20, 1997
C-9 Curriculum vitae of John G. Costino, Jr.
C-10 Handwritten Statement of Dr. Costino, dated June 19, 1990
C-11 Consent Order, In re Orozco, M.D. (filed July 16, 1991)
C-12 Final Order, in re Tricarico, M.D. (filed December 29, 1995)
C-13 Verified Complaint, in re Schermer, Jr., M.D. (filed April 8, 1994)
C-14 Curriculum vitae of Edmund L. Erde, Ph.D.
For respondent:
R-1 Curriculum vitae of Stanley R. Kern, M.D.
R-2 Osteopathic Oath
R-15 Curriculum vitae of Paul W. Armstrong
WITNESSES
For complainant:
David Weiss, D.O.
Robert Tarquini
M.K.
C.R.
n.F.H.
Edward Schweizer, M.D.
Janis Vona
Michael Carducci
Charles Janousek
Edmund L. Erde, Ph.D.
For respondent:
Senator James Cafiero
Aldo A. Palumbo
Victor Yorio
James Elsey
Judith Devlin
Hazel MacDonald
Robert Maurer, D.O.
Stanley Kern, M.D.
John Sweet
vincent a. Maressa, Esq.
Paul Armstrong, Esq.
______________________________________________________________________
A Service of Rutgers University School of Law
1.
0 These findings of fact are not as detailed and comprehensive as I would have liked. To a great extent this is due to the failure or inability of complainant to present admissible evidence with respect to the allegations of the complaint. The burden of proof is, of course, upon complainant, not respondent. See In re Polk, 90 N.J. 550, 560-61 (1982).
2.
0 For a detailed summary of Dr. Costino’s treatment, see report of David Weiss, D.O. (Exhibit C-4) and packet of original prescriptions written by respondent (Exhibit C-1).
3.
0 For details concerning dosage, etc., see Exhibit C-3, the packet of original prescriptions written by respondent for G.G.
4.
0 This finding is based on the testimony of Dr. Costino, which on this point I found credible. His testimony was unshaken on cross-examination, unlike the testimony of Investigator Tarquini, who was unable to produce his original notes, copies thereof, or other corroborating evidence (such as tapes) respecting potentially damaging admissions that Dr. Costino had allegedly made to him.
5.
0 For details on respondent’s treatment and prescribing of medications for patient J.B., see report and testimony of Dr. David Weiss (Exhibit C-4).
6.
0 For details concerning dosage, etc., see packet of original prescriptions written or called in by respondent for J.B. (Exhibit C-2).
7.
0 Ongoing relationships between patients and physicians who provide psychiatric or psychotherapeutic services are deemed terminated only if the last professional service was rendered more than two years ago. Additionally, the physician-patient relationship will be considered ongoing for an indefinite period of time if the patient, by reason of emotional or cognitive disorder, is vulnerable to the exploitative influence of the licensee. N.J.A.C. 13:35-6.3(c)(1). The present case does not involve a psychiatric or psychotherapeutic relationship.
8.
0 I was extremely impressed by the credentials of all three of these men. Their testimony, equally impressive, was clear, convincing and unshaken by cross-examination. Of the four experts, moreover, only Dr. Kern is a physician.
9.
0 In his brief at page 57, Mr. Kern lists statutes and regulations of other jurisdictions, from California to Wyoming, which in 1995 dealt with the subject of sexual relations between physicians and patients.