North Wildwood Doctor Doesn’t Regain License

NORTH WILDWOOD — Dr. John Costino was unsuccessful in a recent attempt to regain his medical license, which was taken from him by the state Board of Medical Examiners following his arrest in 2007 for allegedly prescribing Percocet to undercover officers for inadequate reasons and falsifying their medical records.
“I’m taking this to the state Supreme Court,” Costino told the Herald, undeterred by the decision.
Costino, who practiced medicine in North Wildwood for 30 years, appealed the Medical Examiners final decision dated Dec. 21, 2009, revoking his license for a minimum of five years and imposing monetary penalties including fines of $10,000 and reimbursements to the Attorney General’s Office of over $70,000, at a rate of $175 per hour.
On appeal, the doctor argued that the board abused its discretion in not remanding the case to the Administrative Law Judge (ALJ) to consider newly-discovered evidence before it issued its final decision; it made factual findings that were not supported by competent, credible and substantial evidence; and, it imposed a penalty of license revocation and assessment of costs that were “disproportionate” to any offense he may have committed and “shocking to one’s sense of fairness.”
The three-judge panel from the Superior Court Appellate Division sided with the board, denying Costino’s appeal on all points.
“We’re pleased that the appellate court has rejected Dr. Costino’s claims and we’re especially pleased that the appellate court found the undercover officers’ testimony was credible,” said county Prosecutor Robert Taylor.
According to court records, the newly-discovered evidence involved one of the undercover officers, Tonya Anderson, who Costino said perjured herself in court by claiming she did not have pain and was not being treated for pain when she was seeing Costino.
Costino learned that Anderson who posed as an exotic dancer had been treated by a chiropractor for back pain during the same time as her undercover visits to his office. In the appeal, Costino argued that the board should have presented this new information to the ALJ.
“The judge relied on Anderson’s testimony as being truthful,” Costino said. “Since we now know that she lied, shouldn’t the judge be able to hear that?”
The appeals judges said the board “did not treat Anderson’s July 2007 chiropractic treatment lightly.”
“Instead, the Board reopened the record and considered the new evidence, ultimately determining that even if Anderson had a back injury at the time of her visits to Costino, his diagnosis of lumbar sprain and strain was not legitimate because Anderson said she had no pain and Costino performed no examination of her lumbar spine,” the appeal stated.
“Under such circumstances, we reject Costino’s contention that the Board’s decision to consider the newly-discovered evidence itself, rather than send the matter back to the ALJ, resulted in a denial of due process.”
According to the decision, Costino stated during the appellate oral argument, that although the transcripts of the undercover office visits by Anderson do not support a finding that either was experiencing pain from her work as an exotic dancer, his own interpretation of their words — based upon his years of experience as a practitioner — enabled him to conclude they were suffering from “overuse syndrome” and the pain that such “overuse” would entail.
Costino said he did the following examination:
“I observed her mannerisms, her arm and leg movements, her eye movements, her gait and disposition. Her pupils were equal, the extraoccular muscles were intact bilaterally, her extremities demonstrated normal movement, both arms and legs, and her ambulatory gait was normal,” Costino stated. “She was able to move her neck without discomfort and able to bend at the waist without restriction. The heart sounds demonstrated a regular rate and rhythm without murmurs, rubs, or gallops. Lung sounds were relatively clear except for a few rhonchi, as she was a smoker. Additionally her blood pressure and pulse rate were normal.”
Costino noted that he saw no indication of addiction, habituation or drug-seeking behavior. He did not order any blood work because she told him that she had just had it done a few months before in connection with breast enhancement surgery.
“This argument is unconvincing for two reasons,” the decision stated. “First, accepting such an argument would require us to ignore the precise requirements of (state law) which require a physician to take a complete history, perform a thorough physical examination and establish a reliable diagnosis,” the appeal stated. “We are not prepared to ignore such binding regulations, and neither was the Board.”
“Second, acceptance of such an argument would give any physician virtual carte blanche to indiscriminately prescribe Percocet based upon the physician’s claim that the patient must have been experiencing more pain than she was able to describe in an articulate fashion,” the judges stated, concluding that the ALJ and the board properly determined that Costino’s actions warranted disciplinary action.
Finally, regarding Costino’s claim that the five-year license revocation was excessive and shocking to one’s sense of fairness, Costino pointed to several mitigating factors including: proof that Costino instructed a pharmacy not to fill a fraudulent prescription; Costino’s refusal to prescribe a painkiller to another undercover officer who requested a prescription; numerous character witnesses presented; and the dwindling number of physicians in Cape May Counties who practice pain management.
“While it is unfortunate that some of Costino’s patients may now have to travel a further distance to obtain care, this does not lessen the importance of sanctioning a physician who put patients at risk by prescribing medication for which they had no need,” the decision stated.
Because they saw his violations as serious, the appellate judges didn’t find his penalties as “shocking to one’s sense of fairness.”
Costino, who lost a previous appeal regarding the admissibility of Anderson’s testimony, faults the judicial system for his predicament.
“It’s obvious to me that the whole appellate system is fixed and flawed. I think the Supreme Court justices will be reasonable people, unlike these appellate judges,” Costino told the Herald, claiming that the three appellate judges Dorothea Wefing, Edith Payne and Linda Baxter were likely protecting their fellow attorneys for the Board of Medical Examiners.
Click here to read a recent Herald report in which Costino gave his side of the story.