IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF STEVEN C. BRIGHAM, ETC. (STATE BOARD OF MEDICAL EXAMINERS) ( 2018 )

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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1944-14T1
IN THE MATTER OF THE SUSPENSION
OR REVOCATION OF THE LICENSE OF:
STEVEN C. BRIGHAM, M.D.
LICENSE NO. MA05106800
TO PRACTICE MEDICINE AND SURGERY
IN THE STATE OF NEW JERSEY.
_____________________________________
Argued May 10, 2018 – Decided September 7, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from the New Jersey Department of
Law and Public Safety, Division of Consumer
Affairs, State Board of Medical Examiners.
Joseph M. Gorrell argued the cause for
appellant Steven C. Brigham (Brach Eichler,
LLC, attorneys; Joseph M. Gorrell, of counsel
and on the brief; Richard B. Robins, on the
brief).
Steven N. Flanzman, Senior Deputy Attorney
General, argued the cause for respondent Board
of Medical Examiners (Gurbir S. Grewal,
Attorney General, attorney; Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Jeri L. Warhaftig, Senior Deputy
Attorney General and Christopher Salloum,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant Steven C. Brigham, M.D. treated patients seeking
to terminate late second and third trimester pregnancies by
initiating dilation and/or fetal demise in New Jersey and later
conducting the abortion procedure in Maryland. He held a New
Jersey license to practice medicine and surgery, but held no
license in Maryland. He alleged he complied with Maryland law by
performing the procedures in consultation with a Maryland-licensed
physician. He challenges the revocation of his New Jersey license
by respondent State Board of Medical Examiners (BME). For the
reasons that follow, we affirm.
I.
Brigham's Background
Brigham received a medical degree in 1986. His main training
for performing abortions occurred in medical school during a "short
preceptorship" with a physician for obstetrics and gynecology
(ob/gyn), during which he observed and conducted a few first
trimester abortion procedures. After graduation, he served a one-
year internship, which included several weeks in an emergency
room. He then worked in various hospital emergency rooms until
accepting a position in a practice specializing in gynecology.
In 1992, Brigham opened his own medical practice in Voorhees.
Over the years, he conducted his practice at several offices in
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Mount Laurel and Voorhees, including American Women's Services,
American Medical Services, American Wellness Center, American
Women's Center, American Medical Associates, American HealthCare
Services, Grace Medical Care, and Grace Medical Services. None
of these facilities was a licensed hospital or New Jersey licensed
ambulatory care facility (LACF).
During the course of his career, Brigham held licenses to
practice medicine in Florida, New Jersey, New York, and
Pennsylvania. He never held a license to practice medicine in
Maryland or had hospital privileges in New Jersey or privileges
to practice in any LACF, and was not board certified in ob/gyn.
The TOP Rule
N.J.A.C. 13:35-4.2, the termination of pregnancy rule (the
TOP rule) "is intended to regulate the quality of medical care
offered by licensed physicians for the protection of the public."
N.J.A.C. 13:35-4.2(a). During the time period in question here,
September 2009 through August 2010, the TOP rule provided that
"[t]he termination of a pregnancy at any stage of gestation is a
procedure, which may be performed only by a physician licensed to
practice medicine and surgery in the State of New Jersey."
N.J.A.C. 13:35-4.2(b).
In June 2011, the Legislature amended N.J.A.C. 13:35-4.2(b),
which was after the events at issue here, but before the
3 A-1944-14T1
Administrative Law Judge's (ALJ) initial decision and the BME's
final decision in this matter. See 43 N.J.R. 1359(b) (June 6,
2011) (adoption); 42 N.J.R. 1310(a) (July 6, 2010) (proposal).
The amendment "clarif[ied] that the [TOP] rule does not apply to
the provision of a medication to a patient designed to terminate
a pregnancy." 42 N.J.R. 1310(a), at 1311. Thus, after June 6,
2011, N.J.A.C. 13:35-4.2(b) provided:
The termination of a pregnancy at any
stage of gestation is a procedure, which may
be performed only by a physician licensed to
practice medicine and surgery in the State of
New Jersey. "Procedure" within the meaning
of this subsection does not include the
issuing of a prescription and/or the
dispensing of a pharmaceutical.
[43 N.J.R. 1359(b), at 1364.]
The remaining subsections of the TOP rule establish the
criteria for eligibility to perform abortions and where they can
be performed. These subsections separated the stages of pregnancy
in terms of weeks from the start of the woman's last menstrual
period (LMP), i.e., post conception. N.J.A.C. 13:35-4.2(c). For
example, twelve weeks' gestational size, or roughly the first
trimester, was the equivalent of fourteen weeks LMP. Ibid. The
TOP rule has no requirements for terminating pregnancies before
fourteen weeks LMP.
4 A-1944-14T1
Generally, in New Jersey, the second trimester was beyond
fourteen weeks LMP to twenty-eight weeks LMP, and the third
trimester was beyond twenty-eight weeks LMP to delivery. "Late"
second trimester meant beyond twenty weeks LMP until the third
trimester. But see Stenberg v. Carhart, 530 U.S. 914, 923-25
(2000) (stating second trimester runs from twelve through twenty-
four weeks); Planned Parenthood of Ctr. N.J. v. Farmer, 165 N.J.
609, 634 (2000) (stating second trimester is beyond fourteen to
twenty weeks LMP).
As a pregnancy progressed, N.J.A.C. 13:35-4.2(d) to (g)
dictated increasingly stringent conditions for abortions. Beyond
fourteen weeks LMP, abortions had to be performed only in a
licensed health-care facility. N.J.A.C. 13:35-4.2(d). Within
that category, "any termination procedure other than dilatation
and evacuation (D & E) shall be performed only in a licensed
hospital." Ibid. By contrast, "a D & E procedure" could be
performed by a physician in a licensed hospital or in an out-
patient LACF authorized to perform surgical procedures beyond
fourteen weeks LMP but only through eighteen weeks LMP. N.J.A.C.
13:35-4.2(e).
Beyond eighteen weeks LMP through twenty weeks LMP, the
physician planning to perform the D & E procedure in a LACF
authorized for surgical procedures also had to have admitting and
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surgical privileges at a nearby hospital, which was accessible
within twenty minutes driving time, and which had an operating
room, blood bank, and intensive care unit. N.J.A.C. 13:35-
4.2(f)(2) and (3). The physician had to first file documentation
with the BME, signed by the LACF's medical director, that he or
she was certified or eligible for certification by the American
Board of Obstetrics-Gynecology or the American Osteopathic Board
of Obstetrics-Gynecology. N.J.A.C. 13:35-4.2(f)(1). The
physician also had to cooperate with the medical director to
maintain statistical records showing the number of patients who:
(1) "received termination procedures"; (2) "received laminaria or
osmotic cervical dilators [and] failed to return for completion
of the procedure"; (3) "reported for postoperative visits"; (4)
"who needed repeat procedures"; (5) "received transfusions"; (6)
who had a suspected perforation; (7) "developed pelvic
inflammatory disease within two weeks"; (8) "were admitted to a
hospital within two weeks"; and (9) "died within [thirty] days."
N.J.A.C. 13:35-4.2(f)(7). In addition, the LACF had to have a
credentials committee and a written agreement with an ambulance
service, insuring immediate transportation of patients when
necessary. N.J.A.C. 13:35-4.2(f)(3) and (4).
After twenty weeks LMP, the physician "may request"
permission from the BME "to perform D & E procedures in an LACF,"
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and must provide "proof, to the satisfaction of the [BME], of
superior training and experience as well as proof of support staff
and facilities adequate to accommodate the increased risk to the
patient of such procedure." N.J.A.C. 13:35-4.2(g).
Medical Terminology: Laminaria,
Misoprostol and Digoxin
Laminaria are a natural product, which have the property of
swelling over time after insertion inside a woman's cervix to aid
dilation for gynecological procedures. They were developed as an
alternative to mechanical devices that could lacerate the cervix.
Laminaria have been used as a cervical dilator in the United States
for at least twenty years. As an expert explained:
Laminaria are a type of dilating device with
the property of becoming swollen by being
exposed to fluids over time. So if you put a
Laminaria device, which is a naturally-
occurring product, sometimes derived from
seaweed, other times from the dogwood tree,
and other naturally-occurring substances, if
you put that stick into a glass of water or
any fluid, over time it will swell up. So
when you put it in the cervix, the opening
into the woman's uterus, the natural
secretions of the cervix will cause the
dilating device to swell over time. And in
about six hours or so, it assumes about
[seventy] to [eighty] percent of its eventual
maximum dilation.
Misoprostol, also known as Cytotec, is a powerful medication
administered for cervical preparation. It causes the cervix to
soften. In late second and third trimester abortions, (beyond
7 A-1944-14T1
sixteen to eighteen weeks LMP), Misoprostol is used to accomplish
cervical softening, typically in conjunction with Laminaria used
for dilation. As an expert explained:
Misoprostol is a prostaglandin which is
a family of chemicals that has the property
of stimulating uterine contractions, and in
so doing, helping the uterus to expel any
pregnancy content. It also has the property
of causing the uterus to increase its tone,
which can be effective in preventing
hemorrhage or reducing blood loss after
pregnancy has ended. And it also can soften
and dilate the cervix, which means it has uses
outside of pregnancy[.] [I]t has multiple
uses in the field of obstetrics and gynecology
and in other fields.
Misoprostol is a known toxic agent to the fetus, i.e.,
potentially harmful to the fetus should the patient reverse her
decision to abort. Sometimes after receiving Misoprostol, the
patient will spontaneously abort.
Digoxin is a drug administered to an in utero fetus by
injection and results in irreversible intra-uterine fetal demise
(IUFD). An expert explained that the act of causing fetal demise
"will cause a process that will irreversibly result in labor and
delivery over time if it [is not] facilitated by a medical
practitioner."
8 A-1944-14T1
Brigham's Prior New Jersey
Disciplinary Action (Brigham I)
In 1993, the BME filed a complaint against Brigham, seeking
to suspend or revoke his New Jersey license. In re Suspension or
Revocation of License of Brigham, 96 N.J.A.R.2d (BDS) 35 (N.J.
Adm. 1996) (Brigham I). The complaint alleged, in part, that
Brigham's insertion of laminaria in patients who were beyond
fourteen weeks LMP "constitute[d] the commencement of an abortion
in the second trimester." This treatment allegedly violated the
TOP rule because Brigham was not legally qualified to perform
abortions, as he held no privileges in any hospital, had no formal
ob/gyn training, and was not Board-eligible or Board-certified in
any specialty.
Specifically, the complaint alleged that patient J.K. was
over twenty-three weeks LMP and carrying a demised fetus when
Brigham inserted Laminaria into her cervix in New Jersey. He
again inserted Laminaria the next day, intending to transport J.K.
to New York the following day for the abortion procedure. At that
time, he was licensed to practice medicine in New York. However,
J.K. was admitted to a New Jersey hospital with complications on
the evening after the second Laminaria insertion, and Brigham was
not directly involved in the rest of her treatment. The complaint
further alleged that patient B.A. was beyond fourteen weeks LMP.
9 A-1944-14T1
Brigham inserted Laminaria in New Jersey and completed the rest
of his treatment in New York.
The BME adopted the ALJ's findings of fact and conclusions
of law that Brigham did not violate the TOP rule by commencing a
termination of pregnancy beyond fourteen weeks LMP using
Laminaria. The ALJ noted the TOP rule was silent about the
insertion of Laminaria for purposes of dilating the cervix
preparatory to the removal of the fetus and the placenta. The ALJ
concluded:
It is clear that insertion of [L]aminaria
does not terminate a pregnancy. It is
likewise clear that it is a necessary step in
achieving adequate cervical dilation so that
evacuation of the uterus can be accomplished
safely. The [BME] is of course free to
interpret the scope of its rule on the
termination of pregnancy, in accordance with
reason, fairness, and adequate notice to those
who are regulated. It would be well if the
rule specifically addressed the use of
[L]aminaria, as I am convinced that Dr.
Brigham would not have utilized the procedure
in New Jersey for patients beyond the
[fourteenth] week of pregnancy if the rule
expressly defined [L]aminaria insertion as a
termination procedure.
Accordingly, the BME penalized Brigham only for using certain
misleading terms in his advertising, not for violating the TOP
rule. The BME made no other comment regarding the applicability
of the TOP rule.
10 A-1944-14T1
The Phillips Letters
By 1996, the governing medical boards in Florida and New York
revoked Brigham's licenses to practice medicine in those states.
By January 1999, he was sending his patients to Pennsylvania to
complete their second and third trimester abortions, even though
he voluntarily retired his Pennsylvania medical license in 1992.
In January 1999, subsequent to Brigham I, Stuart Phillips,
Esq., wrote to the BME regarding "Laminaria insertion in the
office." Without identifying Brigham as his client, Phillips
requested an advisory opinion regarding the TOP rule. He presented
a scenario involving a second trimester abortion performed by a
D & E procedure, and said that Laminaria insertion to dilate the
cervix would be performed in a doctor's office and then one or two
days later the evacuation surgery would be performed either in a
hospital or a licensed/approved facility.
Phillips asked whether the treatment protocol he described
would violate the TOP rule and suggested that Brigham I held
insertion of Laminaria in an office setting was not a violation.
However, he did not explain that the evacuation surgery would be
performed in an out-of-state facility, and did not seek guidance
on any other methods of cervical preparation prefatory to an
evacuation surgery, such as administering Misoprostol or Digoxin.
11 A-1944-14T1
The BME advised Phillips that it shared his view of the
applicability of the TOP rule, and advised "there would appear to
be no problem with regard to the insertion of [L]aminaria prefatory
to a termination of pregnancy whether in an office setting or a
licensed ambulatory care facility."
Brigham's Patients and Treatment Protocol
From September 2009 through August 2010, Brigham induced
dilation and/or fetal demise in approximately 241 patients in his
New Jersey offices. He then performed the evacuation surgeries
in his office in Elkton, Maryland, which Brigham and his staff
called "the surgical center."
All of the 241 patients sought to terminate pregnancies after
fourteen weeks LMP, and all were first treated by Brigham in his
New Jersey offices. Patients who were between fourteen weeks LMP
but less than twenty-four weeks LMP were designated on their
medical records as "American Woman Services" or "AWS" patients.
Forty-three patients who were at least twenty-four weeks LMP or
greater were designated on their medical records as "Grace"
patients.
Brigham's treatment protocol for each type of patient was
different, but all patients were treated first with some
combination of Laminaria, Misoprostol, and/or Digoxin. For an AWS
patient, treatment was a two-day procedure. Brigham's staff would
12 A-1944-14T1
examine the patient in his Voorhees office, perform an ultrasound,
collect lab work, and have the patient sign various consent forms.
Brigham would then examine the patient, answer any questions,
insert Laminaria, and send the patient home after telling her the
evacuation surgery would be performed the next day in a surgical
facility located about an hour away. The next day, the patient
would return to the Voorhees office and receive another Laminaria
insertion and sometimes Misoprostol. That same day, the patient
would travel by car to the Elkton office and undergo an evacuation
surgery performed by Brigham or, after July 30, 2010, by Nicola
Riley, M.D., a Maryland licensed physician employed by Brigham.
For a Grace patient, who was typically in the late second or
third trimester (twenty-four weeks LMP or later), treatment was a
three-day procedure. Brigham's staff would examine the patient
in his Mount Laurel office and perform an ultrasound to confirm
pregnancy. His staff would tell the patient the evacuation surgery
would be performed in another office located about an hour from
Voorhees, have her sign various consent forms, collect payment,
and then tell her to follow a staff member for a twenty-minute
drive to the Voorhees office. That same day, Brigham would meet
the patient at his Voorhees office, describe the surgical
procedure, review the consent forms with the patient, answer any
13 A-1944-14T1
questions, and insert Laminaria and administer Digoxin to cause
fetal demise.
On the second day of treatment, the Grace patient would return
to the Voorhees office and have an ultrasound to confirm fetal
demise. Brigham would insert Laminaria and the patient would
return home. On the third day, the patient would return to the
Voorhees office and then travel by car to the Elkton office, where
she would undergo a surgical evacuation performed by Brigham or,
after July 30, 2010, by Riley.
None of the AWS or Grace patients were given the address of
the Elkton office unless they asked, and most did not. Patients
traveled to that office in their own car, led in a caravan by one
of Brigham's employees, or they could ride in a staff member's
car. Brigham followed in another car, and everyone stayed in
contact by cell phone during the drive. None of the patients were
told that Brigham had no license to practice medicine and surgery
in Maryland. The patients who testified at the administrative
hearing said this would not have mattered to them had they known
before their abortions.
Brigham's Employees
George Shepard, Jr., M.D. was an Obstetrician/Gynecologist
in his mid-80s and held a license to practice medicine in Maryland
until the Maryland State Board of Physicians (Maryland Board)
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permanently revoked it on November 19, 2010. The Maryland Board
found Shepard practiced medicine with, or aided, Brigham, an
unauthorized person, in the practice of medicine.
In his August 19, 2010 statement to Detective Sergeant Holly
Smith of the Elkton Police Department, Shepard said he had trouble
with his right arm, stopped driving, suffered a stroke, which
limited his ability to use his dominant side, stopped performing
abortions in 2001, and had not seen any patients, medically, since
2001.1 He also said he worked at the Elkton office only two days
a week, was paid monthly, and Brigham hired him two years earlier.
Shepard said his responsibilities at the Elkton office were
"just to make sure that the facility [was] clean, and they treat
the patients well[.]" He said he did not conduct any hiring or
firing or give instructions "to the staff unless . . . they're
just not doing something right," and never instructed the doctors.
He also said that Brigham did not hire him to assist, instruct,
or teach the doctors, and he was at the Elkton office only to make
sure the patients were feeling well when they left.
1
Shepard did not testify at the administrative hearing. His
statement was admitted into evidence.
15 A-1944-14T1
Shepard also said that Brigham performed the evacuation
surgeries at the Elkton office, while Riley observed.2 According
to Shepard, Riley looked over Brigham's shoulder as he was telling
her "what he's doing, and how he would do it or, you know, if
you're going to do anything, don't do this, or don't do that."
Shepard claimed he was "sitting there . . . in the same room, but
. . . not looking over [Brigham's] shoulder" or "get[ting] up and
walk[ing] around and see[ing] what [Brigham was] doing." Shepard
explained that the patient would be covered, so he would not see
or do anything. He was just sitting there waiting to see how long
the procedure would take. He was not concerned that Brigham had
no license to practice medicine in Maryland so long as a Maryland
licensed physician was present.
It is undisputed that Shepard never performed any surgical
evacuations in the Elkton office. Nevertheless, he signed the
patient forms stating that the procedures were performed and the
patients were fine when they left. However, he never saw an
ultrasound or physically touched a patient.
Brigham employed "Dr. F.N.", a physician licensed only in
Bangladesh, as a medical reviewer. In the beginning of her
employment, she worked as a trainee, traveled in the car with
2
Riley was not interviewed by Smith and did not testify at the
hearing. The Maryland Board revoked her medical license as well.
16 A-1944-14T1
Brigham's patients from Voorhees to Elkton, and observed less than
twenty surgical evacuations in the Elkton office. Dr. F.N.
testified that Brigham and Riley performed all of those surgeries,
with Shepard being either in the room or on the speakerphone. Dr.
F.N. saw Shepard only twice in the operating room.
Dr. F.N. testified that when they were on the telephone,
Brigham would tell Shepard about the patient. She sometimes
overheard them conversing about complications, such as amniotic
fluid embolism, uterine rupture and perforation, uterine
perforation, disseminated intravascular coagulation, or post-
procedure hemorrhage. She also testified that at the direction
of someone whom she could not recall, she would write Shepard's
name or "Dr. Walker's" name on the medication logs. However, she
did not remember seeing anyone named Dr. Walker at the Elkton
office and "could not remember her face."
Smith interviewed Kimberly M. Walker, M.D.3 Walker told Smith
that she never performed any evacuation surgeries at the Elkton
office, but was present for fifty surgeries Brigham performed.
Walker did not have a license to practice medicine or surgery in
Maryland when she worked at the Elkton office.
3
Walker did not testify at the hearing.
17 A-1944-14T1
A.H. worked in the Voorhees and Mount Laurel offices before
becoming project manager in the Elkton office for second and third
trimester patients. Prior to her promotion, she conducted patient
intakes and counseling, assisted the doctors, and worked in the
recovery room.
A.H. testified that Shepard introduced himself to patients
at the Elkton office as the "medical director" and reviewed the
patient charts with Brigham prior to each surgery. During the
surgery, Shepard took the patient's pulse, monitored oxygen
saturation and pain levels, sometimes instructed Brigham to give
the patient more anesthesia, and always talked with Brigham about
the surgery while it was ongoing. A.H. also saw Shepard
instructing Brigham about repositioning the fetus through
vaginal/uterine massage.
A.H. testified that Shepard would meet with patients after
the surgery to ensure their pain was being managed. Shepard and
Brigham also would review and sign the patients' charts after each
procedure. Sometimes during a surgery, the staff would take notes
on the vital signs and hand the notes to a doctor for entry in the
chart. According to A.H., only the doctors wrote on the patient
records.
On cross-examination, A.H. testified she was at the Elkton
office approximately forty times between November 2009 and March
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2010. She stated that Shepard was sometimes on the speakerphone
during the surgeries. She also claimed it was her job to fill in
the doctor's name on the consent forms for the Grace patients, and
it was her error that the forms did not contain the doctor's name.
C.R. worked in the Voorhees office. Her duties included
traveling to Maryland with patients and monitoring them in the
recovery room after their surgeries. She testified that Shepard
introduced himself to patients at the Elkton office as "the medical
director," and talked to Brigham during the surgeries about the
patient and the surgery. She also saw Shepard demonstrating to
Brigham maneuvers to position the fetus, and both of them reviewing
medical records together. She further stated she was responsible
for writing Shepard's name on the recovery room logs, and Shepard
instructed her to write his name since he was the medical director,
and not Brigham's name.
K.G. worked in the Mount Laurel office. She met patients at
the office, gave them consent forms, answered their questions,
explained the entire process, and performed ultrasounds. She
testified that the patient would meet with Brigham, who explained
the process, answered questions, and went over the consent form.
She claimed that during her approximately twenty intakes with
patients, only three patients asked for the address of the surgical
center, which she gave to them.
19 A-1944-14T1
K.G. testified she saw Shepard driving himself from his home
to the Elkton office, and he was physically able to help patients
off the operating room table. She said that Shepard would meet
each patient, make sure the patient was not in too much pain, and
decide the order of the surgeries.
K.J., a foreign medical school graduate trained in emergency
medicine, but not licensed in the United States, worked in the
Elkton office and previously worked in the Voorhees office, where
she conducted patient intakes, explained procedures and consent
forms, and drove patients to the Elkton office. During intakes,
she gave AWS patients the choice of going to an office in either
Pennsylvania or Maryland for their evacuation surgeries, and most
picked Maryland since it was three hours closer. If patients
asked about the Maryland office, she would tell them the facility
was in Elkton, but very few asked about the location.
K.J. testified that prior to accepting a patient in the Elkton
office, Brigham discussed the case over the telephone with Shepard,
and it was Shepard who decided whether to accept the patient for
surgery. Shepard introduced himself to patients at the Elkton
office as the "medical director," decided the order of their
surgeries, and made sure patients were not in pain during the
procedure. Shepard also discussed complications with Brigham and
20 A-1944-14T1
showed him more than one "obstetrical maneuver." K.J. said Shepard
never performed any of the abortions.
K.J. said that Brigham and Shepard had "a form that they used
to sign where it says Dr. Shepard is the Medical Director and they
are engaging in consultation, him and Dr. Brigham . . . and [she]
saw Dr. Shepard signing that form several times." K.J. described
Shepard as mentally intact and initially able to drive himself.
Brigham's Patient Records
Patient D.B. was an AWS patient. She signed Laminaria-
insertion and use-of-Misoprostol consent forms and a preprinted
form entitled "Informed Consent for Abortion after 14 Weeks,"
which was blank where the name of the doctor who would perform the
abortion should have been inserted. Brigham's name did not appear
in her records. Instead, a note from Riley stated she performed
the abortion by herself as "the attending physician." There was
also a completed form entitled, "Second Trimester Non-Surgical
Abortion," but the section for "Delivery Notes" was crossed out,
and a form entitled "Daily Tissue and Regulated Medical Waste
Log," which showed D.B.'s name and Shepard as the doctor.
Complications arose after D.B.'s abortion and Brigham's staff told
her family members who had accompanied her to the Elkton office
to take her to the hospital.
21 A-1944-14T1
Patient V.O. was an AWS patient. She signed a Laminaria-
insertion consent form and a preprinted form entitled "Informed
Consent for Abortion after 14 Weeks," which showed Brigham's name
as the doctor who would perform the abortion. Shepard and Brigham
signed her "Abortion Record." Brigham admitted that approximately
one month after the abortion, he and Shepard signed the forms and
he wrote his name onto the consent form, along with a statement
on the Abortion Record: "Non-viable fetus removed by Dr. Brigham
while engaging in consultation with Dr. Shepard."
Patient S.B. was an AWS patient. She signed Laminaria-
insertion and use-of-Misoprostol consent forms, and an "Informed
Consent for Abortion after 14 Weeks" form, which was blank where
the name of the doctor who would perform the abortion procedure
should have been inserted. She was nineteen weeks LMP, and had
received Laminaria on August 10, 2010. According to the
"Medication [Dispensing] Log," Brigham administered Doxycycline
on August 10, 2010. She had an abortion on August 11, 2010, and
the Elkton Recovery Room Log indicated that Shepard was the doctor.
Patient S.A. was an AWS patient. She signed Laminaria-
insertion and use-of-Misoprostol consent forms, and a preprinted
form entitled "Informed Consent for Abortion after 14 Weeks,"
which was blank where the name of the doctor who would perform the
abortion should have been inserted. Her records also contained a
22 A-1944-14T1
completed form entitled, "Second Trimester Non-Surgical Abortion,"
but the section for "Delivery Notes" was crossed out. She had her
abortion at the Elkton office on August 11, 2010, and the Recovery
Room Log indicated that Shepard was the doctor.
Patient A.C.'s patient records indicated she was an AWS
patient. She signed Laminaria-insertion and use-of-Misoprostol
consent forms, and a preprinted form entitled "Informed Consent
for Abortion after 14 Weeks," which had no name of the doctor
performing the procedure. There was also a completed form
entitled, "Second Trimester Non-Surgical Abortion," but the
section for "Delivery Notes" was crossed out. She had her abortion
at the Elkton office on August 11, 2010, and the Recovery Room Log
indicated that Shepard was the doctor.
Records of many other Grace and AWS patients of Brigham, who
did not testify, were admitted into evidence, along with Recovery
Room Logs from the Elkton office. To summarize, each of the
patient records in evidence contained an "Abortion Record," which
stated: "The patient [ ] did [ ] did not, spontaneously deliver
the fetus and placenta." On each form, the "did" box was checked,
indicating a spontaneous delivery. Almost all of the preprinted
forms entitled "Informed Consent for Abortion after 14 Weeks," did
not include the name of the doctor who would be performing the
abortion procedure. All of the Elkton Recovery Room Logs reflected
23 A-1944-14T1
Shepard as the "doctor" for each of the 241 patients treated there.
The Recovery Room Logs displayed data for each patient, including
stage of pregnancy, fee paid, type of sedation and whether the
patient was a "Grace" patient. Brigham's name did not appear on
the Recovery Room Logs.
Expert Testimony
Edward Steve Lichtenberg, M.D., testified for the BME as an
expert in ob/gyn with a specialty in contraception and family
planning, including the performance of abortions in all
trimesters. He defined "termination of pregnancy," often called
an abortion, as an "induced abortion . . . designed to complete
the emptying of the uterus using only medications, devices or
both." This was distinct from "a spontaneous abortion or
miscarriage." He also distinguished fetal demise from feticide,
which occurred when fetal demise happened "at the hands of a
practitioner or the patient."
Lichtenberg testified that a D&E was "a surgical abortion
performed beyond the first trimester." The steps involved in a
D&E were counseling, consent, cervical preparation, and extraction
of the products of conception. During counseling, a patient would
be informed about the medical facts of her condition as verified
by an ultrasound, assessed by a medical team, and advised of her
24 A-1944-14T1
options, including abortion, adoption, carrying to term, or
further counseling.
Lichtenburg explained that during consent, the patient would
sign a consent form on which she expressed her intent to go forward
with a surgical abortion, and be informed of the name of the
surgeon and the various features and risks of the procedure.
Although some consent forms did not include the individual
surgeon's name, such as when groups of physicians were working
together, "typically a single senior physician is identified on
most consent forms."
Lichtenburg also explained that during cervical preparation,
devices, medications, or other actions would be applied to cause
the cervix to soften and dilate over time. Lichtenberg testified
that "the degree of cervical dilation necessary to safely evacuate
the uterus increases with increasing gestation, and gestation
progresses geometrically, not linearly." He then opined that
Brigham failed to provide his patients seeking second and third
trimester abortions with competent medical care, in part, because
he never told them he was not licensed in Maryland, and this
failure breached the bond of trust between patient and physician.
Lichtenberg testified that Brigham's ineligibility to perform
the evacuation surgery in New Jersey did not alleviate him from
the responsibility of engaging in a relationship of trust with his
25 A-1944-14T1
patients. He further opined that Brigham's plan for patient travel
also deviated from accepted standards of care because the patients
were instructed to follow a line of cars without knowing their
ultimate destination.
Lichtenberg also opined that Brigham's patient records
deviated from accepted standards, including the requirements in
N.J.A.C. 13:35-6.5. He explained that the consent forms Brigham's
patients signed insufficiently warned of serious consequences,
often did not contain the name of the designated surgeon, and
contained inconsistent information that the patient would be
receiving both a medical (non-surgical) and a surgical abortion.
He concluded Brigham never contemplated that any of his patients
would undergo a medical abortion. Further, each patient's Abortion
Record reflected a spontaneous abortion when, by definition, a
spontaneous abortion occurred without physician assistance in the
delivery of the fetus and placenta.
Lichtenberg opined that Brigham's patient records, in their
aggregate, demonstrated "serious deviations" from accepted
standards of care, and these "serious deviations" made it difficult
to know whether there were defects in any step of the termination
of pregnancy. He stated that "when there are blanks in the chart,
when notations are absent, it's hard to know exactly what went
on." He noted there was "no reasonable explanation" why data
26 A-1944-14T1
would be missing from patient records, since records should be
filled out "at the time of the operation."
Lichtenberg opined that Brigham's conduct was a gross
deviation from the standard of care, since he performed second and
third trimester abortions outside a LACF or hospital. He explained
that the increased risks encountered as a pregnancy advanced
resulted in the need for facilities of "higher quality with more
equipment and more resuscitative measures and higher quality staff
to handle possible complications."
M. Natalie McSherry, a Maryland lawyer, testified for Brigham
as an expert in general health care law, particularly regarding
the practicing, licensing, and disciplining of medical
professionals in Maryland. She explained that Maryland had a
statutory exception to its licensure requirements, which permitted
out-of-state physicians to practice in Maryland if they were
engaging in "consultation" with a Maryland-licensed physician.
However, she found no authority interpreting that exception.
Rather, she relied on her experience interacting with physicians
to conclude that "consultation" meant "a couple of health care
providers talking to each other about the care of a patient."
Thus, she opined that Brigham was engaging in "consultation" with
Shepard and therefore permitted to perform abortions in Maryland.
27 A-1944-14T1
McSherry also refuted the testimony of Christine Farrelly, a
fact witness for the BME. Before becoming the Acting Executive
Director of the Maryland Board, Farrelly worked as a compliance
analyst investigating complaints about Brigham's treatment of
patients in Maryland. Testifying about Maryland's law, Farrelly
stated the Maryland Board had a form posted on its website since
2003 that had to be submitted for approval when an out-of-state
physician sought to practice medicine in Maryland under the
licensure requirement exception. McSherry testified, however,
that she was unaware of this form, despite her involvement in many
healthcare cases before the Maryland Board, and said there was no
rule, regulation, or order requiring submission of the form.
Gregg P. Lobel, M.D., testified for Brigham as an expert in
anesthesiology. He opined that Brigham's use of Midazolam, an
anti-anxiety medication, would cause the patients, even without
any other drugs, to experience amnesia and likely not remember
what happened during their surgeries. He testified he could not
discern from the patient records whether D.B. had received more
medication than had been documented before she had a complication
requiring emergency hospital treatment after her surgery.
Gary Mucciolo, M.D., testified for Brigham as an expert in
ob/gyn and pregnancy terminations. He opined that an abortion or
termination of pregnancy meant the procedure of evacuation or
28 A-1944-14T1
"surgical intervention" for "emptying of the uterus of pregnancy
contents[;]" an abortion did not constitute administering
Laminaria or Misoprostol, or inducing fetal demise. He explained
that the accepted general standard of care allowed a physician to
send the patient home after receiving prefatory steps on one or
two days, and perform the surgical evacuation on the following
day.
On cross-examination, Mucciolo agreed with Lichtenberg's
explanation that the risks increased as pregnancy advanced, but
opined a second trimester abortion, like a first trimester
abortion, was a "minor" surgery. However, he admitted that he
referred his patients requiring IUFD, like Brigham's Grace
patients, to a perinatologist to perform the injections, and then
had their abortions performed in a hospital where he held
privileges.
Mucciolo opined that Brigham's consent forms and patient
records met the general standard of care because they gave patients
"a clear understanding" of the procedures that would be performed.
However, he admitted that Brigham's use of "spontaneous" in the
Abortion Records was a "little confusing." Nevertheless, he still
believed he could get a clear understanding of the procedures
Brigham performed from the records.
29 A-1944-14T1
Brigham's Testimony
Brigham testified that he opened offices in Maryland to avoid
anti-abortion protestors and because women in New Jersey who were
pregnant past twenty-four weeks could not terminate their
pregnancies any closer than Colorado. He did not tell his patients
about his Elkton office because he wanted to keep the address
confidential to avoid problems with protestors. He did not
establish the Elkton office until he consulted legal counsel
concerning Maryland's laws for unlicensed physicians and,
consequently, signed a "Consultation Engagement Agreement" with
Shepard in September 2009. The agreement stated, in part:
WHEREAS, Dr. Shepard desires that Dr. Brigham
engage in consultation with him regarding the
care and treatment of patients, and
WHEREAS, provided that it comports with
Maryland law, Dr. Brigham is willing to
consent to Dr. Shepard's request that Dr.
Brigham start engaging in consultation with
him,
NOW, THEREFORE, it is hereby AGREED:
1. Dr. Shepard hereby requests that Dr.
Brigham enter into this Engagement in
which Dr. Brigham agrees that he shall
be engaging in consultation with Dr.
Shepard regarding the care and treatment
of patients.
. . . .
3. During the Term of this engagement,
Dr. Brigham shall at all times remain
30 A-1944-14T1
engaging in consultation with Dr.
Shepard, as provided herein.
Brigham described his interaction with his patients, i.e.,
counseling, examinations, and review of the records and consent
forms. He explained that patients beyond twenty-four weeks LMP,
the Grace patients, were non-elective cases and had to present
justifiable reasons to terminate their pregnancies. He claimed
he declined more patients than he accepted, and Shepard
participated in those decisions.
Brigham testified that Shepard was the medical director at
the Elkton office, supervising staff and hiring Riley. Before
that, Shepard had stopped treating patients and was working for
him as the medical and lab director in his Baltimore office.
Shepard's role at the Elkton office was to decide the order of the
surgeries and monitor patients' vital signs during and after
surgery. Shepard also taught him about significant complications
and obstetrical maneuvers. In return, he taught Shepard about
specific medical procedures so Shepard could oversee the
physicians in his role as medical director.
On cross-examination, Brigham asserted he never performed an
evacuation surgery in the Elkton office when he was not consulting
with Shepard or Riley. He testified that on those "few times"
when Shepard was listening on the telephone, Shepard would speak
31 A-1944-14T1
to the staff by speakerphone and would listen for the pulse
oximeter. Brigham insisted that, even on the telephone, Shepard
could give him advice and consultation. However, he admitted that
if there was a problem, Shepard would not have been able to step
in and render emergency care or assistance. Even so, he stated
he had "a lot of emergency medicine background," and there were
other physicians who were present and could have assisted, such
as Dr. F.N. and Walker, even though they were not licensed to
practice medicine in Maryland.
Brigham also explained that Shepard would leave the premises
before they could complete the patient records together, so the
records were often incomplete. He claimed the Maryland police
seized most of the patient records before they could be competed.
The following colloquy occurred between Brigham and his attorney
regarding his patient records:
Q. Now, some of the records in this
case do not have a filled out abortion record
as is contained in the [V.O.] case.
You are aware of that, correct?
A. I am.
. . . .
. . . [B]ecause I was not licensed in Maryland
and I was doing these procedures with Dr.
Shepard, I wanted to document it, that Dr.
Shepard was there and that Dr. Shepard - - or,
at least that Dr. Shepard was engaging in
32 A-1944-14T1
consultation, and I wanted to create a
documentary record.
. . . .
I wanted to have Dr. Shepard's signature on
the record to prove that he was, I would say
in [ninety-eight] percent of the time,
[ninety-nine] percent of the time he was
there, and if he wasn't there in person he was
there by telephone, to show that a
consultation did - - that he, himself,
concurred that he was engaging in consultation
with me. So I wanted him to sign it, and I
signed it [V.O.'s patient records].
. . . .
Dr. Shepard always has this issue that he had
to get home to get his kids. . . . [O]ur
typical [mode of operation] was that we would
sit down at the end of the day and sign all
of the documents, but sometimes he had to rush
out and didn't have time to actually do all
the documentation.
. . . .
. . . [W]e had fallen behind on doing our
documentation, and then the police basically
came in and seized them, and that was it.
. . . .
That is my answer. [The patients'
records] are just not complete. They were
seized before we could have a chance to finish
completing them.
Brigham testified that no one was ever lost while traveling
to Maryland, and the caravan kept in touch by cell phone. He also
testified that he spoke to the head of the emergency room at
33 A-1944-14T1
Christiana Hospital in Newark, Delaware, who had verbally agreed
to accept and treat any of his patients, if necessary.
Summary of the ALJ's Initial Decision
and the BME's Final Decision
The ALJ first concluded that Brigham did not violate the TOP
rule by inserting Laminaria or inducing fetal demise in New Jersey.
The ALJ explained the TOP rule applied only when the physician
commenced the surgical process to evacuate the uterus in a D&E
procedure, and did not regulate the entire process beginning with
consultation and counseling and proceeding through prefatory steps
to the surgery, including dilation and/or initiation of fetal
demise. Thus, because Brigham had not performed any surgical
evacuations in New Jersey, the ALJ recommended dismissal of the
charge that his treatment violated the TOP rule.
The ALJ concluded Brigham's patient records provided
sufficient information concerning the recorded surgical
procedures, and Brigham's consent forms were sufficiently
comprehensive. Thus, the ALJ recommended the BME find that any
alleged violations of the professional standards of care to
maintain proper patient records were "relatively minor."
However, the ALJ concluded that Brigham was not authorized
under Maryland law to practice medicine there. The ALJ found
Brigham had knowingly obtained Shepard's cooperation only for
34 A-1944-14T1
legal reasons and not for the medical consultation that would have
allowed Brigham to practice in Maryland. Citing to Brigham's past
conduct, specifically, the disciplinary actions by the medical
boards in New York, Pennsylvania, and Florida, and a New York
conviction for failing to file income taxes, and to his
"willingness to play fast and loose with the law in Maryland[,]"
the ALJ concluded Brigham "has finally cut enough corners." The
ALJ therefore recommended the BME find Brigham had committed a
"major violation of professional standards" by engaging in the
unlicensed practice of medicine in Maryland, and revoke his license
for "knowingly effectuat[ing]" a scheme to engage in the unlicensed
practice of medicine and surgery.
The BME rejected the ALJ's conclusion on the applicability
of the TOP rule, and held that Brigham commenced pregnancy
terminations in New Jersey and violated the TOP each time he
performed any prefatory act in his New Jersey office for a patient
whose treatment was ultimately completed in Maryland. However,
relying on Brigham I and the Phillips letters, the BME found
Brigham could have reasonably believed his conduct was not subject
to the TOP rule when he treated patients with Laminaria and/or
Misoprostol in New Jersey. Consequently, for penalty purposes
only, the BME found Brigham violated the TOP rule in forty-three
Grace cases when he administered Digoxin to effect fetal demise
35 A-1944-14T1
in New Jersey prior to conducting the surgical evacuation in
Maryland.
The BME adopted the ALJ's finding that Brigham's arrangement
with Shepard was a deliberate sham and his conduct constituted the
unlicensed practice of medicine in Maryland. Accordingly, the BME
held that Brigham's unlicensed practice of medicine in Maryland
substantiated the charges that he had engaged in acts constituting
a crime or offense relating adversely to the practice of medicine,
and provided the basis for disciplinary sanction and revocation
of his license.
The BME also adopted the ALJ's finding that Brigham's patient
records failed to conform to regulatory recordkeeping
requirements. Although the BME agreed with the ALJ's
characterization that these violations, in any individual case,
were "minor," it held Brigham's "repeated and consistent"
recordkeeping violations were "substantial" and "serious." The
BME also held "the record of this case support[ed] the remainder
of charges" that Brigham's conduct constituted: gross and/or
repeated acts of negligence, the use or employment of dishonesty,
deception, and/or misrepresentation, and professional misconduct.
As to penalty, the BME concurred with the ALJ's recommendation
to revoke Brigham's license, but found the scope of Brigham's
36 A-1944-14T1
violations of law was far more expansive and the extent of his
misconduct far more pervasive than the ALJ's conclusions.
The BME held that Brigham committed multiple statutory
violations when treating not less than 241 patients, which included
forty-three Grace patients. Specifically, only as to his Grace
patients, the BME found Brigham violated N.J.S.A. 45:1-21(h) by
"perform[ing] termination of pregnancy procedures in New Jersey
in violation of [the TOP rule]." For all of his patients, the BME
found Brigham violated: (1) N.J.S.A. 45:1-21(b) for "two
independent bases" of dishonesty, deception, misrepresentation,
false promise or false pretense for failing to inform patients of
salient facts and for consistent deceptive recordkeeping
practices, which the BME merged for penalty purposes; (2) N.J.S.A.
45:1-21(c) by engaging in acts constituting gross negligence; (3)
N.J.S.A. 45:1-21(e) by engaging in acts of professional
malpractice; (4) N.J.S.A. 45:1-21(f) by engaging in acts
constituting "the unlicensed practice of medicine in Maryland[;]"
and (5) N.J.S.A. 45:1-21(h) by failing "to maintain patient records
consistent with the requirements of N.J.A.C. 13:35-6.5[.]" Thus,
the BME "unanimously conclude[d] that no action short of revocation
of licensure could adequately redress the violations of law found
or adequately protect the public interest." The BMA also imposed
monetary penalties. This appeal followed.
37 A-1944-14T1
II.
Our review of a final administrative decision is limited. In
re Stallworth, 208 N.J. 182, 194 (2011). We "afford a 'strong
presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi
v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.
Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)).
Thus, "[w]ithout a 'clear showing' that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the
record, an administrative agency's final quasi-judicial decision
should be sustained, regardless of whether a reviewing court would
have reached a different conclusion in the first instance." Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9
(2009).
Our review of an administrative decision is limited to three
questions: (1) whether the decision is consistent with the agency's
governing law and policy; (2) whether the decision is supported
by substantial evidence in the record; and (3) whether, in applying
the law to the facts, the agency reached a decision that could be
viewed as reasonable. Ibid. Implicit in the scope of our review
is a fourth question, whether the agency's decision offends the
State or Federal Constitution. George Harms Const. Co. v. N.J.
38 A-1944-14T1
Tpk. Auth., 137 N.J. 8, 27 (1994). The burden of proof is on the
party challenging the agency's action. Lavezzi, 219 N.J. at 171.
The Legislature has granted the BME "broad authority" under
the Medical Practices Act (MPA), N.J.S.A. 45:9-1 to -27.9, to
regulate the practice of medicine in New Jersey, and "to promulgate
rules and regulations to protect patients and licensees." In re
License Issued to Zahl, 186 N.J. 341, 352 (2006); N.J.S.A. 45:9-1
and -2. "The Board's supervision of the medical field is critical
to the State's fulfillment of its 'paramount obligation to protect
the general health of the public.'" Id. at 353 (quoting In re
Polk, 90 N.J. 550, 565 (1982)). The BME is "the guardian of the
health and well-being of [State] citizens." Polk, 90 N.J. at 566.
Thus, the right of physicians to practice their profession is
subordinate to the government's interest "to assure the health and
welfare of the people of the State through the regulation and
supervision of the licensed medical profession." Id. at 565.
In tandem with the MPA, the BME has the power to discipline
and regulate the license of any physician in New Jersey under the
Uniform Enforcement Act (UEA), N.J.S.A. 45:1-14 to -27. N.J.S.A.
45:1-21; Del Tufo v. J.N., 268 N.J. Super. 291, 296 (App. Div.
1993). The BME may revoke a physician's license under the UEA if
the physician:
39 A-1944-14T1
b. Has engaged in the use or employment of
dishonesty, fraud, deception,
misrepresentation, false promise or false
pretense;
c. Has engaged in gross negligence, gross
malpractice or gross incompetence which
damaged or endangered the life, health,
welfare, safety or property of any person;
d. Has engaged in repeated acts of
negligence, malpractice or incompetence;
e. Has engaged in professional or
occupational misconduct as may be determined
by the board;
f. Has been convicted of, or engaged in acts
constituting, any crime or offense involving
moral turpitude or relating adversely to the
activity regulated by the board. For the
purpose of this subsection a judgment of
conviction or a plea of guilty, non vult, nolo
contendere or any other such disposition of
alleged criminal activity shall be deemed a
conviction;
. . . .
h. Has violated or failed to comply with the
provisions of any act or regulation
administered by the board[.]
[N.J.S.A. 45:1-21.]
"The remedial nature of the UEA suggests its liberal
interpretation." In re Kim, 403 N.J. Super. 378, 386 (App. Div.
2008) (citing N.J.S.A. 45:1-14). Importantly, "the Legislature
did not require a finding of patient harm before authorizing
license revocation[ under] N.J.S.A. 45:1-21[.]" Zahl, 186 N.J.
40 A-1944-14T1
at 355 (finding physician's deceitful and fraudulent conduct
warranted license revocation). These violations, however, must
be proven by a preponderance of the evidence in a medical
disciplinary hearing. Polk, 90 N.J. at 560.
We afford substantial deference to a professional board's
disciplinary action and choice of sanction because of the board's
specific expertise, special knowledge, and statutory obligation
to regulate the licensed profession. Zahl, 186 N.J. at 353. For
statutory disciplinary proceedings, "[t]he issues, the evidence
and the standards are thoroughly understood by the parties
involved. They relate to a profession, a specialty in which the
parties, the witnesses and the members of the tribunals are all
uniquely qualified and share a common expertise." Polk, 90 N.J.
at 567-68. Accordingly, our Supreme Court repeatedly has
admonished that reviewing "courts should take care not to
substitute their own views of whether a particular penalty is
correct for those of the body charged with making that decision."
Stallworth, 208 N.J. at 191 (quoting In re Carter, 191 N.J. 474,
486 (2007)).
Nevertheless, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." Ardan v. Bd. of Review, 231 N.J. 589, 604 (2018)
(quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). We
41 A-1944-14T1
consider those issues de novo. L.A. v. Bd. of Educ. of Trenton,
221 N.J. 192, 204 (2015). Moreover, "[w]hen resolution of a legal
question turns on factual issues within the special province of
an administrative agency, those mixed questions of law and fact
are to be resolved based on the agency's fact finding." Campbell
v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001).
Brigham argues the BME's finding that he violated the TOP
rule was incorrect as a matter of law, contrary to Brigham I, and
a violation of his right to adequate notice and due process of
law. He relies on N.J.A.C. 13:35-4.2(b), which stated at the time
of his conduct in question: "The termination of pregnancy at any
stage of gestation is a procedure, which may be performed only by
a physician licensed to practice medicine and surgery in the State
of New Jersey."
Brigham first claims the BME's conclusion he violated that
section is contrary to the plain language of the regulation,
illogical, and strains credulity. He takes no issue with the
BME's concepts that termination of a pregnancy involves a continuum
of care, the focus of which is fetus evacuation from the uterus,
or that this continuum involves a process. Instead, he notes the
TOP rule discusses termination in terms of a "procedure," and not
a continuum of care or a process. Relying on the experts'
testimony, he asserts that inserting Laminaria or administering
42 A-1944-14T1
Misoprostol and Digoxin constitute preparations for the
termination procedure, i.e., dilation and fetal demise, but do not
constitute performance of the surgical evacuation procedure
itself.
Brigham further argues that by finding he violated the TOP
rule, the BME contradicted Brigham I that insertion of Laminaria
was prefatory to performing an evacuation procedure and did not
contravene the TOP rule, and the BME's changes to the TOP rule
should have been made after formal rulemaking without violating
his right to adequate notice and due process of law.
The BME has discretion to define the TOP rule as commencing
with any or all prefatory steps to terminate a pregnancy, and as
applying "to all steps along the continuum which are taken for the
distinct purpose of allowing a physician to safely perform a
termination procedure[.]" The MPA gives the BME "broad authority"
to regulate and supervise the practice of medicine in New Jersey
and to protect patients. Zahl, 186 N.J. at 352-53.
However, the problem here is that Brigham never performed an
evacuation surgery in New Jersey. There is nothing in the BME's
express or implied powers under the MPA or UEA permitting it to
hold a physician directly liable under the TOP rule for not
performing a surgical evacuation in New Jersey that would violate
the regulation if performed here, or hold a physician directly
43 A-1944-14T1
liable for violating the TOP rule by performing a surgical
evacuation in another state. The BME recognized it could not
"establish standards of medical practice in States outside of New
Jersey." Thus, the BME's discussions about viewing a termination
of pregnancy as a process or a procedure are a red herring, since
the TOP rule governs D & E procedures, that is, dilation and
evacuation. Even if Brigham started the termination procedure in
New Jersey, his surgical evacuations never occurred here.
Furthermore, N.J.A.C. 13:35-4.2(d) states that "[a]fter
[fourteen] weeks LMP, any termination procedure other than . . .
(D & E) shall be performed only in a licensed hospital." The BME,
however, never found that inducing fetal demise terminates a
pregnancy or constitutes a termination procedure. It declined to
distinguish between reversible and irreversible prefatory steps
to a surgical evacuation, instead finding that use of Laminaria,
Misoprostol, and/or Digoxin were all prefatory acts to that
procedure.
Because Brigham did not perform the surgical evacuations in
New Jersey, the BME could not find Brigham violated the TOP rule.
Accordingly, the BME's revocation of Brigham's license for
violating the TOP rule was arbitrary, capricious, and
unreasonable, as it was not based on sufficient credible evidence
he performed the surgical evacuations in New Jersey. The BME
44 A-1944-14T1
decision also contravened the plain language of the regulation,
and went beyond its implied and express powers by trying to impose
the TOP rule's reach into another state.
Having reached this conclusion, we decline to address
Brigham's additional argument, raised for the first time on appeal,
that the TOP rule is unconstitutional.
III.
Brigham contends the BME erred in denying his motion to
dismiss the TOP rule violation and gross negligence claims as
barred by the doctrine of collateral estoppel. We disagree.
The doctrine of collateral estoppel "bars relitigation of any
issue which was actually determined in a prior action, generally
between the same parties, involving a different claim or cause of
action." In re Liquidation of Integrity Ins. Co., 214 N.J. 51,
66 (2013) (quoting Div. of Youth & Family Servs. v. R.D., 207 N.J.
88, 114 (2011)). This doctrine also applies in administrative
settings. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.
104, 107 (1991).
For collateral estoppel to apply:
the party asserting the bar must show that:
(1) the issue to be precluded is identical to
the issue decided in the prior proceeding; (2)
the issue was actually litigated in the prior
proceeding; (3) the court [or agency] in the
prior proceeding issued a final judgment on
the merits; (4) the determination of the issue
45 A-1944-14T1
was essential to the prior judgment; and (5)
the party against whom the doctrine is
asserted was a party to or in privity with a
party to the earlier proceeding.
[In re Estate of Dawson, 136 N.J. 1, 20 (1994)
(citations omitted).]
"It is equally clear that '[e]ven where these requirements are
met, the doctrine, which has its roots in equity, will not be
applied when it is unfair to do so.'" Olivieri v. Y.M.F. Carpet,
Inc., 186 N.J. 511, 521-22 (2006) (alteration in original) (quoting
Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).
Our Supreme Court has identified "a variety of fairness
factors" favoring application of collateral estoppel, including:
"conservation of judicial resources; avoidance of repetitious
litigation; and prevention of waste, harassment, uncertainty and
inconsistency." Allen v. V & A Bros., Inc., 208 N.J. 114, 138
(2011) (quoting Olivieri, 186 N.J. at 523). In contrast, the
fairness factors weighing against application of collateral
estoppel include consideration of whether:
the party against whom preclusion is sought
could not have obtained review of the prior
judgment; the quality or extent of the
procedures in the two actions is different;
it was not foreseeable at the time of the prior
action that the issue would arise in
subsequent litigation; and the precluded party
did not have an adequate opportunity to obtain
a full and fair adjudication in the prior
action.
46 A-1944-14T1
[Ibid. (quoting Olivieri, 186 N.J. at 523).]
Also weighing against preclusion is "a concern that 'treating the
issue as conclusively determined may complicate determination of
issues in the subsequent action[.]'" Ibid. (quoting Restatement
(Second) of Judgments § 29 (Am. Law Inst. 1982)). Indeed,
collateral estoppel will not be applied "where, after the rendition
of the judgment, events or conditions arise which create a new
legal situation or alter the rights of the parties." Kozlowski
v. Smith, 193 N.J. Super. 672, 675 (App. Div. 1984) (quoting
Washington Twp. v. Gould, 39 N.J. 527, 533 (1963)). Another
example is when "new evidence has become available that could
likely lead to a different result." Barker v. Brinegar, 346 N.J.
Super. 558, 567 (App. Div. 2002).
Thus, "[t]he relevant focus 'must center on whether the
conditions precedent to the application of the collateral estoppel
doctrine have been satisfied and, if so, whether the application
of the doctrine is equitable under the circumstances.'" L.T. v.
F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting R.D., 207
N.J. at 116).
Brigham argued on his motion to dismiss that the legal issues
before the BME were identical to the issues raised in Brigham I,
namely, determining what act constitutes a termination of
pregnancy as governed by the TOP rule. He asserted the BME
47 A-1944-14T1
resolved this issue in Brigham I when it dismissed the disciplinary
violations based on injecting Laminaria in his New Jersey offices
on patients who were past fourteen weeks LMP, and then performing
their evacuation surgeries in New York. He maintained the
Phillips' letters reinforced the BME's policy that his treatment
plan did not violate the TOP rule. Thus, he argued that collateral
estoppel barred those claims alleging he violated the TOP rule
when performing any prefatory acts to the evacuation of a fetus
and placenta, including use of Laminaria, Misoprostol, or Digoxin.
The BME denied the motion, finding that collateral estoppel
did not apply because there were "substantial differences" between
the issues presented here and in Brigham I. The BME never reached
the issues in Brigham I of whether Laminaria insertion in a New
Jersey office setting was conduct that commenced the termination
of a pregnancy and therefore triggered the TOP rule, or whether
Brigham was subject to the TOP rule once he inserted Laminaria
into his patients. In fact, it was "not at all clear that the
dismissal [in Brigham I] was based on a conclusion that the
insertion of [L]aminaria was not an act that triggered the
requirements of N.J.A.C. 13:35-4.2."
Second, the BME found differences in the ways that Brigham
treated his patients in the two cases. It explained:
48 A-1944-14T1
[In Brigham I, Brigham] had inserted
[L]aminaria [into patient J.K.] on two
instances in his office, and he had intended
to transport J.K. the following day to a
clinic in New York ("an additional two hour"
trip) to perform a D & E. There was no
allegation made, however, that [Brigham] ever
administered or intended to administer
[M]isoprostol, a cervix softening compound, to
J.K. before embarking on the planned trip to
New York. It is thus the case that the
question whether the administration of
[M]isoprostol was an act that "commenced" an
abortion (or otherwise subjected . . . Brigham
to the requirements of the [BME's] termination
regulation) was never considered, or even
before the [Office of Administrative Law] or
the [BME], in the prior action. Nor was any
consideration given to the question whether
it was negligent or grossly negligent to
administer [M]isoprostol to a patient (who had
previously had [L]aminaria inserted also to
effect cervical softening) and then have that
patient travel over [fifty] miles to an out-
of-state location for the actual performance
of her abortion.
In similar fashion, a crucial issue in
the present application – namely, whether the
administration of [D]igoxin to cause fetal
demise is an act that constitutes the
commencement of a termination procedure,
and/or an act that needs to be performed in a
manner consistent with the requirements of the
[BME's] termination rule – was neither
considered nor decided in the prior case,
because J.K. was not administered [D]igoxin.
It is alleged in three of the five
specifically identified cases now before the
[BME] (S.D., M.L. and J.P.) that . . . Brigham
injected [D]igoxin to kill the patient's fetus
(or fetuses) at the same time that he inserted
[L]aminaria to effect cervical softening.
Whether . . . Brigham thereby engaged in acts
which subjected him to the requirements of the
49 A-1944-14T1
[BME's] termination regulation is a new
question, and clearly was not an issue
resolved in the 1993 action.
Third, the BME found that Brigham I did not consider the
adequacy of the informed consent that Brigham obtained. The BME
noted that in Brigham I, patient J.K. had been "fully aware and
advised who would be performing her procedure and where that
procedure would be perform[ed." However, here, Brigham's patients
were not advised where their procedures would be performed, nor,
in some cases, who would be performing them.
Fourth, there was no allegation in Brigham I that Brigham was
not licensed to perform the D & E procedures in New York, or was
not in full compliance with New York law. He was licensed in New
York when he inserted Laminaria in his patients in New Jersey,
intending to perform the evacuation surgery in New York. In the
present case, however, he was never licensed in Maryland, where
he intended to perform the evacuation surgery.
Finally, the BME rejected any claims that the Phillips letters
supported application of collateral estoppel to dismiss the
present charges. It explained:
The letter[s] clearly do[] not address any
practice other than insertion of [L]aminaria
in an office setting – indeed, Mr. Phillips
expressly stated that his [unnamed] client was
looking for an opinion "only as to that
procedure." . . . Brigham's suggestion that
the letter[s] should be read to somehow
50 A-1944-14T1
endorse other actions performed in an office
setting that may be "prefatory" to an
abortion, such as the injection of [D]igoxin
or administration of [M]isoprostol, is not
only strained, but also directly contrary to
text in his attorney's letter. Mr. Phillips
was thus careful to point out that the
insertion of [L]aminaria affected only the
cervix, was a reversible procedure, and "did
not kill the fetus" or evacuate the uterus.
Digoxin injections prior to a D & E procedure
are done for a completely different purpose –
to kill the fetus. Given that distinction,
we find . . . Brigham's suggestion that the
letter should presently be interpreted to
condone his injections of [D]igoxin in
patients M.L., S.C. and J.P. to be entirely
baseless.
Other significant distinctions need to be
drawn between the facts now before the [BME]
and those posited in Mr. Phillips' letter.
Mr. Phillips clearly, and repeatedly, asserted
in his letter to the [BME] that the D & E
procedure which was to follow the insertion
of [L]aminaria was going to be performed in a
manner completely consistent with the [BME's]
termination regulation and New Jersey law.
Mr. Phillips did not suggest that the D & E
procedure would be performed in another state,
by a physician who would not otherwise be
qualified under the [BME's] regulation to
perform the procedure, or in any setting other
than an approved LACF or hospital. Nor did
Mr. Phillips suggest that the D & E procedure
might be performed by a physician other than
the physician inserting the [L]aminaria, or
that the physician's office was far removed
from the site at which the D&E was to be
performed.
Thus, the BME denied Brigham's motion due to the substantial
differences between the current claims and Brigham I, and the
51 A-1944-14T1
distinctions between Brigham's recent conduct and the conduct
addressed in the Phillips letters
On appeal, Brigham argues the BME should have applied
collateral estoppel to dismiss the TOP violation and gross
negligence claims since he had met all five of the Dawson prongs.
He reiterates that the same issues of what act commenced a
pregnancy termination procedure and whether his conduct and
treatment plan constituted gross negligence were presented in
Brigham I and the present action, and the BME answered the issues
by ruling in Brigham I that insertion of Laminaria in an office
setting did not violate the TOP rule. He reiterates the Phillips
letters reinforced the Brigham I ruling, wherein the BME declared
that a medical treatment plan requiring the patient to travel one
hour out-of-state for an evacuation surgery after Laminaria
insertion in New Jersey was lawful and consistent with generally
accepted standards of medical care.
There is no real dispute that Brigham met the third, fourth,
and fifth Dawson prongs, 136 N.J. at 20. However, he did not meet
the first and second prongs. Under the first prong, the prior
action must have involved substantially similar or identical
issues. Ibid. Some courts have required the issues to be
"precisely the same[.]" In re Liquidation, 214 N.J. at 68. This
prong therefore requires consideration of
52 A-1944-14T1
[1] whether there is substantial overlap of
evidence or argument in the second proceeding;
[2] whether the evidence involves application
of the same rule of law; [3] whether discovery
in the first proceeding could have encompassed
discovery in the second; and [4] whether the
claims asserted in the two actions are closely
related.
[First Union Nat'l Bank v. Penn Salem Marina,
Inc., 190 N.J. 342, 353 (2007).]
Here, even though the BME alleged in both actions that Brigham
violated the TOP rule by commencing pregnancy terminations on
patients after fourteen weeks LMP in his New Jersey office and
then completing the termination out of state, the actual issues
here were not the same or similar as in Brigham I. In Brigham I,
the BME was never faced with deciding whether, and what, prefatory
acts to the D & E procedure triggered compliance with the TOP
rule. There was also no substantial overlap of evidence, since
Brigham's prefatory steps in this case included Laminaria
insertion, along with administration of Misoprostol and/or
Digoxin.
Further, even though the BME had alleged similar claims in
both actions that Brigham's treatment constituted gross
negligence, the actual issues were not the same or similar.
Brigham held a license to practice medicine in New York and could
perform evacuation surgeries there, and the BME in Brigham I was
never faced with deciding whether his treatment plan constituted
53 A-1944-14T1
gross negligence. Consequently, discovery in Brigham I could not
have encompassed the evidence discovered in this case.
Moreover, under the second Dawson prong, an "issue is actually
litigated" if the issue "is properly raised, by the pleadings or
otherwise, and is submitted for determination, and is
determined[.]" Allesandra v. Gross, 187 N.J. Super. 96, 105-06
(App. Div. 1982) (quoting Restatement (Second) of Judgments § 27,
cmt. d (Am. Law Inst. 1982)). By contrast, an issue is not
"actually litigated" when, although it is raised, "no decision
with respect thereto was ever rendered" by the prior tribunal.
Id. at 106-07.
Here, although both actions concerned the TOP rule and the
BME's licensing authority under N.J.S.A. 45:1-21, it was not clear
the BME dismissed the claims in Brigham I based on its conclusion
that Brigham's prefatory act of inserting Laminaria was not a step
that triggered the TOP rule. Since Brigham held a license to
practice medicine in New York, the BME was not faced in Brigham I
with interpreting alleged violations of the TOP rule by a physician
who had no license to perform the ultimate surgical evacuation.
Nor did the BME consider whether it was negligent or grossly
negligent for Brigham to insert Laminaria and/or administer
Misoprostol to a patient who was going to travel to a state where
he could perform her evacuation surgery. Consequently, the similar
54 A-1944-14T1
issues presented in both actions were not actually decided in
Brigham I. As such, because Brigham did not meet the first and
second Dawson prongs, the BME did not err by concluding collateral
estoppel did not bar the TOP rule violation and gross negligence
claims.
In any event, the BME ultimately did not base its decision
on Brigham's treatment of patients only with Laminaria insertion
and/or administration of Misoprostol. In its final decision, the
BME found "Brigham could have reasonably believed, based on the
holdings made in 'Brigham I' and . . . the Phillips letters, that
he would not have been subject to the . . . [TOP rule] in cases
which involved only the insertion of [L]aminaria and/or the
administration of Misoprostol." Consequently, the BME held
Brigham only violated the requirements of the TOP rule each time
he injected Digoxin to effect IUFD in a late term pregnant patient.
Accordingly, we conclude the BME did not err by denying Brigham's
motion, as collateral estoppel did not compel the dismissal of any
claim.
IV.
Brigham contends the BME erred in revoking his license under
N.J.S.A. 45:1-21(f) for engaging in acts constituting the
unlicensed practice of medicine in Maryland. We reject this
contention.
55 A-1944-14T1
The BME may revoke any license to practice medicine and
surgery "upon proof" that the licensee "[h]as . . . engaged in
acts constituting, any crime or offense involving moral turpitude
or relating adversely to the activity regulated by the [BME]."
N.J.S.A. 45:1-21(f). The standard of proof is by a preponderance
of the evidence. Polk, 90 N.J. at 560.
This issue involves the interpretation of Maryland law and
its relation to the facts. An agency's interpretation of a statute
or determination of a strictly legal issue is not entitled to
deference, and we will consider these issues de novo. Ardan, 231
N.J. at 608. Further, "[w]hen resolution of a legal question
turns on factual issues within the special province of an
administrative agency, those mixed questions of law and fact are
to be resolved based on the agency's fact finding." Campbell, 169
N.J. at 588 (citation omitted). Applying those review standards,
we discern no error.
In Maryland, physicians are governed currently by the Medical
Practice Act, found in the Maryland Code Annotated, Heath
Occupation §§ 14-101 to 14-702. Cornfeld v. State Bd. of
Physicians, 921 A.2d 893, 897 (Md. Ct. Spec. App. 2007). The Act
is administered by the Maryland Board, which has both licensing
and disciplinary responsibilities. Ibid.56 A-1944-14T1
During the period of Brigham's conduct at issue, Maryland
required individuals to be licensed in order to practice medicine
there. Md. Code Ann., Health Occ. § 14-301; 1997 Md. Laws, ch.
201, § 1, at 1924 (Apr. 29, 1997, effective Dec. 31, 1998).
Maryland law defined "practice medicine" as:
(1) "Practice medicine" means to engage, with
or without compensation, in medical:
(i) Diagnosis;
(ii) Healing;
(iii) Treatment; or
(iv) Surgery.
(2) "Practice medicine" includes doing,
undertaking, professing to do, and attempting
any of the following:
(i) Diagnosing, healing, treating,
preventing, prescribing for, or
removing any physical, mental, or
emotional ailment or supposed
ailment of an individual:
. . . .
2. By appliance, test, drug,
operation, or treatment; [and]
(ii) Ending of a human pregnancy[.]
[Md. Code Ann., Health Occ. § 14-101(l); 2007
Md. Laws, ch. 539, § 1, at 3504-05 (May 17,
2007, effective June 1, 2007).]
Maryland law further states: "Except as otherwise provided
in this title, a person may not practice, attempt to practice, or
offer to practice medicine in this State unless licensed by the
57 A-1944-14T1
Board." Md. Code Ann., Health Occ. § 14-601; 2007 Md. Laws, ch.
359, § 1, at 2283 (May 8, 2007, effective Oct. 1, 2007).4 A person
found violating any of those statutes was guilty of a crime and
subject to criminal sanctions and fines, including imprisonment.
Md. Code Ann., Health Occ. § 14-606(a)(4); 2007 Md. Laws, ch. 359,
§ 1, at 2283-84 (May 8, 2007, effective Oct. 1, 2007).5
However, there are certain exceptions to the licensing
requirements. During the period of Brigham's conduct at issue,
the exception statute stated:
(a) Subject to the rules, regulations, and
orders of the Board, the following individuals
may practice medicine without a license:
. . . .
(2) A physician licensed by and residing
in another jurisdiction, while engaging
in consultation with a physician licensed
in this State;
. . . .
4
In 2013, Maryland's General Assembly repealed and reenacted HO
§ 14-601 without change. 2013 Md. Laws, ch. 307, § 1, at 2295,
and ch. 308, § 1, at 2297-98 (May 2, 2013, effective Oct. 1, 2013).
It is the same today. Md. Code Ann., Health Occ. § 14-601 (2014
repl. vol. & 2017 pocket pt.).
5
In 2013, Maryland's General Assembly repealed and reenacted HO
§ 14-606 with amendments not relevant here. 2013 Md. Laws, ch.
307, § 1, at 2296-97, and ch. 308, § 1, at 2298-99 (May 2, 2013,
effective Oct. 1, 2013). Today, violators are still guilty of a
crime. Md. Code Ann., Health Occ. § 14-606 (2014 repl. vol. &
2017 pocket pt.).
58 A-1944-14T1
(5) A physician who resides in and is
authorized to practice medicine by any
state adjoining this State and whose
practice extends into this State, if:
(i) The physician does not
have an office or other
regularly appointed place in
this State to meet patients;
and
(ii) The same privileges are
extended to licensed
physicians of this State by
the adjoining state[.]
[Md. Code Ann., Health Occ. § 14-302(a)
(emphasis added); 1993 Md. Laws, ch. 627, §
2, at 3068 (May 27, 1993, effective July 1,
1993).]
Brigham did not fit into the treating physician exception in
HO § 14-302(a)(4), since New Jersey does not adjoin Maryland and,
more importantly, since he had "an office or other regularly
appointed place in [Maryland] to meet patients." Thus, in order
to practice medicine in Maryland without a license, Brigham had
to meet the consultation exception in HO § 14-302(a)(2).
In May 2013, Maryland's Governor signed "an emergency
measure" adopted by the General Assembly for, among other things,
"the purpose of authorizing certain physicians engaged in certain
consultations to practice medicine without a license from the
State Board of Physicians under certain circumstances," as it was
"necessary for the immediate preservation of the public health or
59 A-1944-14T1
safety[.]" 2013 Md. Laws, ch. 582, § 3, at 5203, and ch. 583,
§ 3, at 5213 (May 16, 2013, effective May 16, 2013).6 Consequently,
before the BME's final decision in this matter, HO § 14-302(a)(2)
was amended to provide:
(a) Subject to the rules, regulations, and
orders of the Board, the following individuals
may practice medicine without a license . . .
:
. . . .
(2) A physician licensed by and
residing in another jurisdiction,
if the physician:
(i) Is engaged in
consultation with a physician
licensed in the State about a
particular patient and does
not direct patient care[.]
[Md. Code Ann., Health Occ. § 14-302(a)
(emphasis added); 2013 Md. Laws, ch. 582, §
2, at 5195, and ch. 583, § 2, at 5206 (May 16,
2013, effective May 16, 2013).]
In its final decision, the BME revoked Brigham's license by
adopting the ALJ's conclusion that his conduct constituted the
unlicensed practice of medicine in Maryland. In so doing, the BME
deferred to the ALJ's "persuasive" and "detailed discussion" of
Maryland's principles of statutory interpretation regarding the
6
Pursuant to the Maryland Constitution, Article II, § 17(d): "If
the Bill is an emergency measure, it shall take effect when
enacted."
60 A-1944-14T1
meaning of the consultation exception as it existed in 2009 and
2010.
The ALJ noted that even though the legal and medical experts
clashed on Maryland's meaning of "consultation," they agreed the
meaning of the term, as used in the statute, had not been the
subject of any decision of the courts of Maryland or the Maryland
Board. Finding no direct precedent, the ALJ used Maryland's
accepted principles of statutory construction and relied on
Connolley v. Collier, 385 A.2d 826, 829-30 (Md. Ct. Spec. App.
1978), aff'd, 400 A.2d 1107 (Md. 1979). In Connolley, the court
recognized that, at times, the meaning of an unclear and ambiguous
statutory word or phrase can be understood by examining subsequent
legislation. Ibid. (citation omitted). Thus, the ALJ found the
2013 amendment of HO § 14-302(a)(2)(i) could "reasonably be seen
as addressing any doubt about whether the sort of activity
[Brigham] was engaged in was within the limited [consultation]
exception . . . and not as a change to existing law." The ALJ
explained:
The amendment can be seen simply as the
Legislature's re-assertion of the primacy of
licensure by Maryland authorities for those
who choose to practice medicine in that State,
which was always implied by the fact that the
"consultation" situation authorized in the
first statute was but an exception and not a
normal avenue for practice in the state.
61 A-1944-14T1
In view of the above, it appears that the
Maryland Court of Appeals, and on the
administrative level, the Maryland Board of
Physicians, would each determine that the
consultation provision allowed only a very
narrow exception to the general licensure
requirement, and that it was always the
intention of the Maryland Legislature to
restrict such practice in line with the
understanding that a Maryland physician and
patients being treated in Maryland would
benefit by the ability of Maryland doctors to
consult about the treatment of their patients
with out-of-state licensees who had some
expertise or at least some special knowledge
that could assist the Maryland doctor in that
physician's care of his or her patient, care
that the Maryland physician directed and was
ultimately responsible for.
The ALJ therefore concluded that Brigham's employment of
Shepard was not a valid consultation relationship within the
meaning of Maryland law, since Brigham "surely did direct patient
care," obtained Shepard's cooperation for legal reasons, and
therefore had engaged in the unlicensed practice of medicine in
Maryland. The BME agreed, further finding that the relationship
between Brigham and Shepard "through the lens of medical
practitioners . . . was anything but an ordinary or typical
consultative relationship." The BME concluded:
Dr. Shepard possessed neither the skill set
nor the experience level which one would
typically expect from a medical consultant.
Ordinarily, a treating physician requests that
a consultant examine his or her patient
because the consultant possesses specialized
62 A-1944-14T1
knowledge and expertise above and beyond that
held by the treating physician. . . .
In this case, . . . Brigham did not need
Dr. Shepard to perform any of the functions a
true medical consultant would be expected to
perform. The record below suggests that Dr.
Shepard had never performed an abortion on a
patient greater than 11 weeks LMP, and that
he last performed an abortion in 2001. While
we recognize that Dr. Shepard, as a Board-
certified OB/GYN, may have had some knowledge
about the general practice of obstetrics and
gynecology different and apart from . . .
Brigham, we reject any suggestion that . . .
Brigham had any need to tap Dr. Shepard's
knowledge base or any need to consult with
him.
. . . [I]t is patently obvious that Dr.
Shepard was not then acting as a consultant.
At best, at times that he was present in
Elkton, Dr. Shepard performed functions that
otherwise could have been performed by a nurse
or qualified medical assistant. When he was
present on the phone alone, he couldn't
perform even those limited functions.
The BME also found the record was devoid of other indicia of
a true consultative relationship between Brigham and Shepard. It
noted there was no evidence that Shepard ever billed independently
for performing a consultation, and no written or typed consultation
report or note by Shepard in any patient record. Instead, the BME
found the record showed Brigham employed and paid Shepard.
The BME also rejected Brigham's claim that Shepard was
consulted on whether to accept patients for surgery. In addition
to finding that such action was not sufficient to qualify any
63 A-1944-14T1
doctor as a medical consultant, the BME found there was no
documentation evincing any decision by Shepard on filtering
patients. The BME determined that Brigham's claims were "entirely
inconsistent with the recorded statement Shepard gave to Smith,
which clearly suggested that Shepard played a far more limited and
inconsequential role." The BME concluded:
It is thus clear to us that, from a medical
perspective alone, there is more than ample
reason to adopt [the ALJ's] ultimate
conclusions that any claimed consultative
relationship was a sham and that . . . Brigham
simply effectuated a scheme to allow him to
practice in Maryland with no illusions that
he had any actual need for medical
consultation with Dr. Shepard.
Finally, the BME gave no weight to the fact that Brigham was
not convicted or criminally charged with the unlicensed practice
of medicine in Maryland. It explained that a New Jersey licensee
could be sanctioned under N.J.S.A. 45:1-21(f) if he or she
"'engage[d] in acts that constituted a crime or offense . . .
relat[ing] adversely to the activity regulated by the [BME]."
Thus, even if Brigham was not convicted or charged with any
offense, he was subject to penalty in New Jersey for having engaged
in the unlicensed practice of medicine in Maryland, since "the
unlicensed practice of medicine in Maryland is in fact punishable
as a crime, and that the crime would be one that relates adversely
to the activity regulated by the [BME]." The BME stated: "[F]rom
64 A-1944-14T1
the viewpoint of practicing physicians," it was "clear that the
relationship between. . . Brigham . . . Shepard could not
reasonably be considered to be a 'consultative' relationship."
The BME also stated:
We further clarify that the finding that
. . . Brigham engaged in the unlicensed
practice of medicine in Maryland substantiates
the charges made within the Administrative
Complaint that . . . Brigham engaged in acts
which would constitute a crime or offense
relating adversely to the practice of
medicine, which in turn provides basis for
disciplinary action in New Jersey pursuant to
[N.J.S.A.] 45:1-21(f).
Brigham argues that the BME erred by ignoring his expert's
testimony as to the meaning of consultation. He claims the BME
improperly inserted a requirement not in the Maryland statute,
that a consulting physician must examine the patient and/or possess
specialized knowledge and expertise beyond that of the consultee
or treating physician.
Citing various Maryland sources and the universal prohibition
against ex post facto laws, Brigham posits there is no support for
the BME to rely on the ALJ's interpretation and therefore apply
the 2013 amendment in HO § 14-302(a)(2)(i) to evaluate his conduct.
He insists the amendment was a complete change in the law, not a
mere clarification, leads to absurd results, and contradicts the
definition of consultation accepted by the experts, as "[o]ne
65 A-1944-14T1
physician providing an opinion or assistance to another
physician[.]" He claims the ALJ and BME misinterpreted the holding
in Connolley, and should have applied Maryland's "rule of lenity,"
which requires a statute's ambiguity to be interpreted in favor
of an individual charged with a violation due to fairness and lack
of notice.
Finally, Brigham argues that even if the BME's definition of
"in consultation with" in HO § 14-302(a)(2) was accurate, the
preponderance of evidence proved his conduct came within that
definition, as amended. He asserts: "The fact that . . . Shepard
had skills that [he] did not and was present to communicate those
skills plainly constitutes consultation." He avers it was
immaterial whether Shepard was present during all of the surgeries,
and his motivation for consulting with Shepard was irrelevant.
Thus, he concludes the BME erred in revoking his license by finding
he had violated N.J.S.A. 45:1-21(f).
In Maryland, as in New Jersey, the paramount goal of statutory
interpretation is to "ascertain and effectuate the intent of the
Legislature." Mayor & Town Council of Oakland v. Mayor & Town
Council of Mountain Lake Park, 896 A.2d 1036, 1045 (Md. 2006). To
discern the Legislature's intent, Maryland courts "look first to
the plain language of the statute, giving it its natural and
ordinary meaning." Breslin v. Powell, 26 A.3d 878, 891 (Md. 2011)
66 A-1944-14T1
(quoting State Dep't of Assessments & Taxation v. Maryland-Nat'l
Capital Park & Planning Comm'n, 702 A.2d 690, 696 (Md. 1997)). In
Breslin, the court stated:
If the language of the statute is clear and
unambiguous, courts will give effect to the
plain meaning of the statute and no further
sleuthing of statutory interpretation is
needed. If the sense of the statute is either
unclear or ambiguous under the plain meaning
magnifying glass, courts will look for other
clues — e.g., the construction of the statute,
the relation of the statute to other laws in
a legislative scheme, the legislative history,
and the general purpose and intent of the
statute.
[Ibid. (citations omitted).]
Here, the plain meaning of the statutory phrase, practicing
medicine "while engaging in consultation with" a licensed Maryland
physician, is ambiguous on the face of the version of HO § 14-
302(a)(2) applicable at the time of Brigham's conduct. Thus, the
BME did not err by looking for other clues.
Before discussing any impact of the 2013 amendment, the
prohibition against ex post facto laws, and a rule of lenity, we
note that the consultation exception to the physician licensing
requirements was part of the original statutory scheme adopted by
Maryland's General Assembly in 1888 to regulate practitioners of
medicine and surgery. 1888 Md. Laws, ch. 429, §§ 1-10, at 697-
700 (Apr. 5, 1888, effective Apr. 5, 1888) (codified as Md. Code
67 A-1944-14T1
of Pub. Gen. Laws, Health, Art. 43 ("Practitioners of Medicine"),
§§ 39-477) (1888 Act). The history of this 130-year-old exception
is a more significant clue in divining the meaning of "in
consultation with" in HO § 14-302(a)(2) and addressing Brigham's
arguments.
The 1888 Act, entitled "an Act to promote the public health
and regulate the practice of medicine in the State of Maryland,"
permitted three classes of persons to practice medicine: those who
had graduated from a medical college; those who had passed an
examination given by the State Board of Health; and those who had
been practicing medicine in Maryland for ten years. 1888 Md.
Laws, ch. 429, § 1-3, at 697-98; Md. Code, Health, Art. 43, §§ 39-
41. See generally Aitchison v. State, 105 A.2d 495, 498 (Md.
1954) (discussing history of the 1888 Act). Anyone not possessing
the required certificate or not already having practiced ten years
was guilty of a crime. 1888 Md. Laws, ch. 429, § 8, at 699; Md.
Code, Health, Art. 43, § 46. However, expressly excepted from the
statutory requirements were "commissioned surgeons in the United
States army, navy or marine hospital service" and "physicians or
7
John Prentiss Poe, The Maryland Code. Public General Laws, Vol.
I, at 791-94 (Baltimore: King Bros., 1888). Originally published
in volume 389 of the Archives of Maryland series in 1888, and
republished in 2001 by the Maryland State Archives. See Archives
of Maryland Online at http://aomol.msa.maryland.
gov/000001/000389/html/index.html (last visited Feb. 1, 2018).
68 A-1944-14T1
surgeons not resident in this state, who may be called in
consultation within this state." 1888 Md. Laws, ch. 429, § 6, at
699; Md. Code, Health, Art. 43, § 44. Thus, the nonresident
physician was considered the consultant.
In 1892, the General Assembly repealed and reenacted those
provisions with additions and amendments. 1892 Md. Laws, ch. 296,
§ 1, at 412-17 (Apr. 2, 1892, effective June 7, 1892) (codified
as Md. Code of Pub. Gen. Laws, Health, Art. 43, §§ 39-528). See
Manger v. Bd. of State Med. Exam'rs, 45 A. 891, 892 (Md. 1900)
(declaring that "the whole scheme devised by the Act of 1888 was
swept away by the Act of 1892"). The language of the consultation
exception to the licensing requirements was amended to exclude
"physicians or surgeons in actual consultation from other States."
1892 Md. Laws, ch. 296, § 1, at 417 (emphasis added); Md. Code,
Health, Art. 43, § 499 (Section 49) (emphasis added).
8
John Prentiss Poe, Supplement to the Code of Public General
Laws of Maryland, Containing the Public General Laws Passed at the
Sessions of the General Assembly of 1890, 1892, 1894, 1896, 1898,
at 330-35 (Baltimore: King Bros., 1898). Originally published
in volume 391 of the Archives of Maryland series in 1898, and
republished in 2001 by the Maryland State Archives. See Archives
of Maryland Online at http://aomol.msa.maryland.
gov/000001/000391/html/index.html.
9
Poe, Supplement, at 335. See 1894 Md. Laws, ch. 217, §§ 1-2,
at 271-75 (Apr. 6, 1894, effective Apr. 6, 1894); 1896 Md. Laws,
ch. 194, §§ 1-2, at 311-14 (Apr. 4, 1896, effective Apr. 4, 1896).
69 A-1944-14T1
In 1894 and 1896, the General Assembly added sections to
Article 43 not relevant here, but did not change the language of
the consultation exception in Section 49. Md. Code, Health, Art.
43, §§ 39-63.10 In Manger, 45 A. at 893, a case concerning whether
the appellant was grandfathered under the new provisions, the
Court of Appeals harmonized both the 1892 and 1894 enactments by
employing "a rule of very general application that statutes should
be read so as to harmonize their various provisions[,] and so as
to give effect to all their parts, if that be possible, rather
than in a way to defeat or nullify any portion of them."
Meanwhile, a defendant who had been prosecuted for unlawfully
practicing medicine in Maryland without being officially
registered challenged the constitutionality of the licensing
exceptions in Section 49 of the 1892 enactment. Scholle v. State,
46 A. 326, 326 (Md. 1900). The Court of Appeals rejected the
defendant's claim, significantly explaining:
Here the purpose of the Acts in question
was the protection of the public from the
consequences of ignorance and incapacity in
the practice of medicine and surgery. As a
means of effecting this[,] they exact from the
persons proposing to engage in the business a
certain degree of skill and learning, to be
evidenced by a certificate upon which the
10
Poe, Supplement, at 330-41. See 1894 Md. Laws, ch. 217, §§ 1-
2, at 271-75 (Apr. 6, 1894, effective Apr. 6, 1894); 1896 Md.
Laws, ch. 194, §§ 1-2, at 311-14 (Apr. 4, 1896, effective Apr. 4,
1896).
70 A-1944-14T1
public may rely. . . . Those to whom the
provisions of the acts do not apply are
commissioned surgeons of the U.S. Army and
Navy, and Marine Hospital; physicians and
surgeons in actual consultation from other
states; and persons temporarily practicing
under the supervision of an actual medical
preceptor.
The reasons for these exemptions from the
operation of the Act are apparent and are
entirely of a public character. The
competency of the first class is assured by
the exactions required of them before they
could become commissioned in the service of
the United States . . . . Nor can any reason
having in view the public protection be
assigned for requiring certificates of the
remaining classes. Neither of these classes
can be said to be practitioners within this
State. The physician from another State, "in
actual consultation," has co-operating with
him a registered physician. To require him
to license as for general practice [] would
have no other effect than occasionally to
deprive the patient and the local physician
of the benefits of the advice of some of the
most eminent and skillful gentlemen in the
profession. Moreover, . . . the public are
fully protected from the incompetency of the
foreign physician . . . by the presence and
supervision and restraints of the certified
physicians of the State. This section
therefore cannot be objected to as in any
respect arbitrary or unreasonable, or as in
any manner creating any unjust discrimination.
[Id. at 327 (emphasis added).]
In 1902, the General Assembly repealed Section 49. 1902 Md.
Laws, ch. 612, §§ 1-2, at 883-91 (Apr. 11, 1902, effective Apr.
11, 1902) (codified as Md. Code of Pub. Gen. Laws, Health, Art.
71 A-1944-14T1
43, §§ 39-65). Nevertheless, it reenacted the consultation
exception in a different section and added, for the first time,
the out-of-state treating physician exception:
[N]othing herein contained shall be construed
to apply . . . to any physician or surgeon
from another State, territory or district in
which he resides when in actual consultation
with a legal practitioner of this State;
. . . nor shall the provisions of this Article
apply to physicians or surgeons residing on
the borders of a neighboring State, and duly
authorized under the laws thereof to practice
medicine or surgery therein, whose practice
extend[s] into the limits of this State;
provided, that such practitioners shall not
open an office or appoint places to meet their
patients or receive calls within the limits
of this State without complying with the
provisions of this Act[.]
[1902 Md. Laws, ch. 612, § 1, at 889-90
(emphasis added); Md. Code, Health, Art. 43,
§ 61 (emphasis added).]
Throughout subsequent repeals, reenactments, amendments,
recodifications, and changes to this article and subtitle, the
1902 language of the consultation exception and the out-of-state
treating physician exception did not change until 1981. Compare
1957 Md. Laws, ch. 29, § 2/138, at 40-41 (Feb. 1, 1957, effective
June 1, 1957); 1963 Md. Laws, ch. 97, § 1/139, at 187-88 (Mar. 14,
1963, effective June 1, 1963); 1967 Md. Laws, ch. 398, § 1/139,
at 966-67 (Apr. 21, 1967, effective June 1, 1967). See Aitchison,
72 A-1944-14T1
105 A.2d at 499-500 (listing statutory exceptions "to the broad
definition of practitioner of medicine").
In 1981, as part of its Code revisions, the General Assembly
repealed "Article 43, Health," and created a new "Health
Occupations" Article by reenacting, revising, amending, and
recodifying the laws relating to, among other occupations,
practitioners of medicine. 1981 Md. Laws, ch. 8, §§ 1-10, at 53-
760 (Mar. 23, 1981, effective July 1, 1981). See Blevins v.
Baltimore Cty., 724 A.2d 22, 32-33 (Md. 1999) ("[T]he principal
function of code revision 'is to reorganize the statutes and state
them in simpler form,' and thus 'changes are presumed to be for
the purpose of clarity rather than for a change in meaning.'")
(quoting Bureau of Mines of Md. v. George's Creek Coal & Land Co.,
321 A.2d 748, 754 (Md. 1974)).
One 1981 change eliminated the word "actual" from the
consultation exception and adopted the language of HO § 14-
302(a)(2), stating: "A physician licensed by and residing in
another jurisdiction, while engaging in consultation with a
physician licensed in this State" may practice medicine without a
license. 1981 Md. Laws, ch. 8, § 2, at 564-65 (emphasis added).
This language was in effect during the period of Brigham's conduct
at issue, and remained in effect until the amendments in 2013,
73 A-1944-14T1
discussed above. 2013 Md. Laws, ch. 582, § 2, at 5195, and ch.
583, § 2, at 5206.
We reject Brigham's argument that the BME erred by ignoring
the expert testimony and inserting a new requirement into
Maryland's statute that a consulting physician must examine the
patient and/or possess specialized knowledge and expertise beyond
that of the consultee or treating physician. In Scholle, 46 A.
at 327, the court explained that the reason for the consultation
exception was to permit Maryland's patients and local physicians
to "benefit [from] the advice of some of the most eminent and
skillful gentlemen in the profession." This presumes that the
consulting physician will examine a patient and possess
specialized knowledge and expertise beyond that of the consultee
or treating physician.
In addition, we decline to discuss ex post facto laws and
lenity rules, because the BME did not err in concluding the 2013
amendment to HO § 14-301(a)(2) clarified the meaning of "in
consultation with" in effect during Brigham's conduct and was not
a complete change in the law. The BME's conclusion was supported
by the Scholle court's explanation of the consultation exception
together with the General Assembly's continuation over time of
that exception and its out-of-state treating physician's
exception.
74 A-1944-14T1
The Scholle court, 46 A. at 327, explained in 1900 that
without the consultation exception, patients and local physicians
could be "occasionally" deprived of the advice of the most eminent
and skillful out-of-state physicians. By contrast, since 1902,
without a Maryland license, an out-of-state physician cannot
practice medicine in Maryland in an office or appointed place to
meet patients. When these two exceptions are read together,
consultation historically implied occasional treatment. Indeed,
this intent is reinforced by the language of the 2013 amendment
to HO § 14-301(a)(2): "engaged in consultation with a physician
licensed in the State about a particular patient and does not
direct patient care[.]" Thus, the 2013 amendment did not create
new law, and the BME did not err by using its language to define
consultation.
When the Maryland General Assembly acts, it "is presumed to
be aware of the interpretation that [the judiciary] has placed
upon its enactments," Pack Shack, Inc. v. Howard County, 808 A.2d
795, 803 (Md. 2002) (quoting Waddell v. Kirkpatrick, 626 A.2d 353,
357 (Md. 1993)), and "it 'is presumed to be aware of its own
[prior] enactments.'" Jane Doe v. Md. Bd. of Soc. Work Exam're,
862 A.2d 996, 1005 (Md. 2004) (quoting Md. State Highway Admin.
v. Kim, 726 A.2d 238, 244 (Md. 1999)). The same presumptions
75 A-1944-14T1
apply when our Legislature acts. See In re Petition for Referendum
on City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010).
Further, as in New Jersey, subsequent legislative amendments
of a statute, although not controlling as to the meaning of a
prior law, may be "helpful" in determining legislative intent.
Chesek v. Jones, 959 A.2d 795, 804 (Md. 2008). See D.W. v. R.W.,
212 N.J. 232, 250 (2012) (considering "[b]oth the plain language
and historical evolution of" a statute to reveal legislative
intent); TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533,
542 (2010) ("[A]mendments carry 'great weight' in determining the
intention of the original statute.").
Brigham cites to parts of the legislative history of the 2013
amendment to prove it was a new change to the meaning of
"consultation." However, testimony before Maryland's House Health
and Government Operations Committee on February 27, 2013,
demonstrated that both the sponsor of Maryland's House Bill (HB)
1313, which later became the 2013 amendment, and the newly
appointed head of the Maryland Board wanted the term "consultation"
in HO § 14-302(a)(2) to be clarified. Maryland delegate Bonnie
L. Cullison testified that her bill, among other things, "clarifies
consultation in a way that would allow national and international
experts who are licensed in other jurisdictions to support the
work in our teaching hospitals." Pub. Hearing Before House Health
76 A-1944-14T1
& Gov't Operations Comm., HB 1313 (Md. 2013).11 Dr. Andrea Mathias
testified: "Our teaching hospitals are quite anxious to have the
definition of consultation clarified." Ibid.
In Chesek, 959 A.2d at 804-05, the Court of Appeals held that
a subsequent "clarifying" amendment to a statute may be an
acknowledgement of an implied power already in existence. "The
term 'clarifying' sometimes can be helpful in signaling
legislative intent." Johnson v. Mayor & City Council of Baltimore,
61 A.3d 33, 45 (Md. 2013). However, absent additional evidence,
the use of the phrase "clarifying" in a statute's legislative
history, by itself, does not provide clarity as to legislative
intent.
Here, the fact that the 2013 amendment simply clarified the
meaning of "in consultation with" by acknowledging the meaning
already in existence can be divined from the hearing testimony
along with the history of Maryland's licensing exceptions, which
includes the court's reasoning in Scholle and the General
Assembly's treating physician exception. Thus, even if the
subsequent 2013 amendment itself was not directly applicable to
Brigham's conduct, any ambiguity in the definition of "in
11
View committee hearings at http://mgaleg.maryland.
gov/webmga/frmMain.aspx?id=HB1313&stab=01&pid=billpage&tab=subje
ct3&ys=2013RS.
77 A-1944-14T1
consultation with" in HO § 14-302(a)(2) was clarified by the
language in the amendment.
Finally, the BME did not err in concluding that the
preponderance of evidence proved Brigham's conduct violated
Maryland's licensing requirements to practice medicine and
therefore revoking his license under N.J.S.A. 45:1-21(f).
According to Scholle, 46 A. at 327, the public is protected from
the possible incompetence of an out-of-state consulting physician
"by the presence and supervision" of a Maryland physician.
Although Brigham's motivation for consulting with Shepard did not
matter under Maryland law, and neither did their written agreement,
Brigham violated HO § 14-301(a)(2) by practicing medicine without
a license, at the very least, every time Shepard was not physically
present during an evacuation surgery.
Accordingly, we conclude the BME did not err in revoking
Brigham's license under N.J.S.A. 45:1-21(f), as it did not
misinterpret Maryland law and there was sufficient evidence
supporting its decision that he engaged in acts constituting the
unlicensed practice of medicine in Maryland.
V.
The BME alleged the medical treatment Brigham provided to his
patients seeking late-term pregnancy terminations constituted
gross negligence in violation of N.J.S.A. 45:1-21(c). The BME
78 A-1944-14T1
concluded that "the established facts" supported a finding that
Brigham's "conduct constituted gross negligence in each and every
instance."
The BME initially explained this was "not a case focused on
. . . Brigham's technical competency to perform a D & E, and that
the record [was] devoid of evidence that any individual patient
. . . suffered physical harm as a result of any termination
procedure performed by . . . Brigham." Rather, the issue was
"broader," and focused on "the risk of harm to which patients were
exposed, and whether . . . Brigham's conduct endangered the health,
safety and welfare of his patients."
Applying that broader focus, the BME concluded:
[E]very patient treated in New Jersey by
. . . Brigham was placed in harm's way once
[he] commenced cervical preparation, because
each patient then became committed to having
a termination procedure performed in
circumstances where their treating physician
. . . knew that he could not legally perform
the procedure in New Jersey, and knew or
should have known that he could not legally
perform the procedure anywhere else. The
patients were further exposed to substantial
risk of harm because . . . Brigham held no
hospital or LACF privileges, and thus had
nowhere in New Jersey (or any other state)
where he could go to complete the termination
procedures in the event of any emergency or
unforeseen complications.
In fact, the BME found that the "latter point" was "particularly
significant" because, even if Brigham "honestly believed his
79 A-1944-14T1
practice in Maryland was legal, he had to know that there was a
possibility that a patient could go into active labor, and that a
termination procedure would need to be performed before a patient
traveled to (or arrived in) Elkton on an emergent basis."
Although not directly made a basis for discipline, the BME
observed Brigham's injections of Digoxin exposed his patients "to
additional risk." As such, the BME found there was
nothing in the record below to suggest that
. . . Brigham had any contingency plan for
those patients, beyond possibly assuming that
the patient would then be rushed to a hospital
emergency room and have their care (and
presumably their abortion procedures)
completed by a physician who had no
relationship with . . . Brigham or the
patient.
Thus, concluding Brigham's "failure to have such back-up plans in
place was a clear abrogation of his responsibility as a treatment
provider and placed each and every patient at substantial risk of
suffering grave harm," the BME held his conduct constituted gross
negligence for revocation under N.J.S.A. 45:1-21(c).
Brigham argues the record did not support the BME's finding
he was grossly negligent because he lacked a back-up plan for
patients traveling from Voorhees to Elkton. He further claims the
BME never charged his lack of a back-up plan as gross negligence,
so he had no notice until the BME raised it in its post-hearing
exceptions to the ALJ's initial decision.
80 A-1944-14T1
First, each version of the complaints in this matter12 alleged
the medical treatment Brigham provided to his patients past
fourteen weeks LMP constituted gross negligence in violation of
N.J.S.A. 45:1-21(c). Even though the complaints did not
specifically allege Brigham lacked a medical treatment back-up
plan, they were sufficient to fairly apprise him of the claims and
issues against him.
The procedural requirements of our courts of law are not
imposed on administrative agencies. In re Kallen, 92 N.J. 14, 25
(1983). Nevertheless, administrative contested cases must conform
with due process principles. Ibid. Administrative due process
is generally satisfied if "the parties had adequate notice, a
chance to know opposing evidence, and the opportunity to present
evidence and argument in response[.]" In re Dep't of Ins.'s Order
Nos. A89-119 & A90-125, 129 N.J. 365, 382 (1992).
Here, the complaints charged Brigham with gross negligence
and specifically alleged he commenced his patients' late term
pregnancy terminations in New Jersey when he administered
Laminaria, Misoprostol, or Digoxin, knowing he could not legally
perform the required evacuation surgeries in New Jersey.
Furthermore, the evidence included discussions of whether Brigham
12
The BME filed a first, second, and third amended complaint.
81 A-1944-14T1
could perform the evacuation surgeries on his patients after
treating them with the prefatory steps for dilation and/or fetal
demise to that surgery. Thus, Brigham had adequate notice of the
gross negligence charges filed against him.
Second, the record shows the emergency room director at a
Delaware hospital assured Brigham the hospital would care for any
of his patients in case of an emergency while on route to Elkton.
However, the BME's decision on gross negligence was not dependent
upon whether Brigham had a back-up plan in Delaware for his
patients, or whether he legally could perform evacuation surgeries
in Maryland. Rather, the BME found he endangered his patients by
commencing dilation and/or fetal demise in New Jersey while knowing
he was not able to legally perform their evacuation surgeries
here, within the BME's jurisdiction.
A physician is merely negligent when he or she fails to
exercise the degree of care that a reasonably prudent physician
would exercise under similar circumstances. Schueler v.
Strelinger, 43 N.J. 330, 344-45 (1964). Gross negligence, however,
refers to conduct that demonstrates a conscious or reckless
disregard for the safety or welfare of another. In re Suspension
or Revocation of License of Kerlin, 151 N.J. Super. 179, 185-86
(App. Div. 1977). In holding that basic tort liability concepts
are not applicable in professional disciplinary actions, the court
82 A-1944-14T1
stated in Kerlin: "It is obvious that the terms 'neglect' and
'malpractice,' standing alone, import a deviation from normal
standards of conduct. 'Gross neglect' or 'gross malpractice'
suggest conduct beyond such wrongful action - how far beyond has
been left to the judgment of the Board, subject, of course, to
judicial review." Id. at 186.
Here, the BME relied on its own professional expertise to
find Brigham exposed his patients to harm by his lack of hospital
or LACF privileges in New Jersey. "While the Board, sitting in a
quasi-judicial capacity, 'cannot be silent witnesses as well as
judges,' an agency's 'experience, technical competence, and
specialized knowledge may be utilized in the valuation of the
evidence.'" In re Suspension or Revocation of License of
Silberman, 169 N.J. Super. 243, 256 (App. Div. 1979) (citation
first quoting N.J. State Bd. Optometrists v. Nemitz, 21 N.J. Super.
18, 28 (App Div. 1952); then quoting N.J.S.A. 52:14B-10(b)), aff'd
o.b., 84 N.J. 303 (1980).
The BME's decision that Brigham's patients were exposed to
harm by his lack of hospital or LACF privileges to deal with
unforeseen complications was supported by a preponderance of the
credible evidence in the record. For example, Brigham treated
patient J.P., a Grace patient who was in her second trimester, by
inserting Laminaria and injecting Digoxin in a New Jersey office.
83 A-1944-14T1
His plan was that after a night in a New Jersey hotel, J.P. would
travel to Maryland for the evacuation surgery. However, that
night, J.P. had an emergency and was admitted to a New Jersey
hospital and treated by other physicians, not Brigham.
Brigham claims, however, that J.P. had no medical emergency
and the police prevented him from communicating with her. His
argument avoids the undisputed fact that after performing the
prefatory steps in New Jersey, he could not have treated J.P in
an emergency by continuing his treatment for pregnancy termination
here.
The record supported the BME's holding that Brigham's conduct
constituted gross negligence. Lichtenberg testified that
Brigham's conduct in undertaking cervical preparation in New
Jersey with a plan only to perform the surgery in Maryland was a
"gross and serious deviation" from the "accepted standards of
care." He also stated that Brigham had committed a gross deviation
when he breached his patients' trust by committing them to a
procedure he could not legally perform.
Because J.P.'s treatment and Lichtenberg's opinions supported
the BME's finding, it was a proper exercise of the BME's power.
Silberman, 169 N.J. Super. at 255-56. Hence, we find the BME did
not err in revoking Brigham's license under N.J.S.A. 45:1-21(c),
84 A-1944-14T1
as there was sufficient evidence in the record to support its
decision that he had engaged in gross negligence.
VI.
Brigham contends the BME erred in revoking his license under
N.J.S.A. 45:1-21(b) and (h) by finding evidence of serious and
substantial recordkeeping deficiencies violating N.J.A.C. 13:35-
6.5. This contention lacks merit.
Under N.J.S.A. 45:1-21, the BME may revoke any license to
practice medicine and surgery "upon proof" that the licensee "[h]as
engaged in the use or employment of dishonesty, fraud, deception,
misrepresentation, false promise or false pretense," N.J.S.A.
45:1-21(b), or "[h]as violated or failed to comply with the
provisions of any act or regulation administered by the board,"
N.J.S.A. 45:1-21(h). The standard of proof is by a preponderance
of the evidence. Polk, 90 N.J. at 560.
Subchapter 6 of N.J.A.C. 13:35 contains the BME's general
practice rules and includes a regulation that controls the
preparation of patient records. N.J.A.C. 13:35-6.5. During the
period at issue, N.J.A.C. 13:35-6.5(b)(1) provided as follows, in
pertinent part:
(b) Licensees shall prepare contemporaneous,
permanent professional treatment records.
85 A-1944-14T1
. . . All treatment records . . . shall
accurately reflect the treatment or services
rendered. . . .
1. To the extent applicable,
professional treatment records shall reflect:
i. The dates of all treatments;
ii. The patient complaint;
iii. The history;
iv. Findings on appropriate
examination;
v. Progress notes;
vi. Any orders for tests or
consultations and the results thereof;
vii. Diagnosis or medical
impression;
viii. Treatment ordered,
including specific dosages, quantities
and strengths of medications including
refills if prescribed, administered or
dispensed, and recommended follow-up;
ix. The identity of the treatment
provider if the service is rendered in a
setting in which more than one provider
practices; [and]
. . . .
xi. . . . The treating doctor shall
also make and document specific inquiry
of or regarding a patient in appropriate
circumstances, such as . . . where
surgery is anticipated with use of
general anesthesia.
86 A-1944-14T1
A licensee may make "[c]orrections/additions" to an existing
record, "provided that each change is clearly identified as such,
dated and initialed by the licensee." N.J.A.C. 13:35-6.5(b)(2).
The regulation was amended in June 2011, but no changes were made
to the portions quoted above, 43 N.J.R. 1359(b) (June 6, 2011)
(adoption).
The BME adopted the ALJ's finding that Brigham violated
N.J.A.C. 13:35-6.5. The ALJ found the evidence proved Brigham's
patient records "were, at least upon facial examination,
confusing." The "Abortion Record" of each patient identified both
that she had a spontaneous unassisted abortion, which was
incorrect, and the equipment and methods used to evacuate the
fetus and placenta. The ALJ found these "confused" records
violated the mandate in N.J.A.C. 13:35-6.5 of maintaining accurate
records, but agreed with Lichtenberg's characterization that the
"deviations from the proper professional standard regarding
keeping of accurate records" were "not serious." The ALJ stated
that "[a]nyone who had reason to examine the record could readily
see that it was not a record of spontaneous delivery, and the
specific means utilized to effectuate the delivery are readily
identified."
The ALJ also found that Brigham's Informed Consent forms were
"not appropriately clear" because they stated the patient, who was
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requesting a "medical abortion," was required to give her consent
to a "surgical abortion." The ALJ concluded that this, too, only
was "a minor violation of standards."
However, the BME rejected the ALJ's characterizations that
Brigham's recordkeeping violations were minor. Instead, it
concluded the violations were "'substantial' and 'serious,'"
finding Brigham had "consistently prepared records in a manner
that likely would deceive anyone reading his records (at a later
date) regarding the specific identity of the physician who
performed the abortion or the specific procedure performed." The
BME focused on the following violations: (1) "Brigham's consistent
practice of falsely representing [on each patient's] "Abortion
Record" that the patient had spontaneously delivered the fetus and
placenta"; (2) Brigham's practice of identifying only Shepard, and
never himself, as the "doctor" on the "Recovery Room Log"
maintained at the Elkton office for all patients; and (3) Brigham's
practice of leaving blank the identity of the physician performing
the patient's evacuation surgery on her "Informed Consent" form.
As to entries on the Abortion Records, the BME concluded
that, while the "mistake" of indicating a spontaneous delivery
instead of a surgical abortion "could certainly be excused as a
record-keeping error in an isolated instance, it instead was
clearly a deliberate practice as the same error was made in each
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and every case." As such, the BME "infer[red] that the practice
was done to mislead or confuse anyone subsequently reading or
reviewing . . . Brigham's records as to what actually occurred."
It rejected any testimony that a subsequent reader would be able
to determine from the entire document what actual treatment had
been performed, since it was unreasonable to assume that the reader
would have "a level of experience and sophistication similar to
that of the two expert witnesses."
As to entries on the Recovery Room Logs, the BME concluded
that because Shepard's name alone was listed as the doctor, the
logical inference one reviewing the logs would draw is that Shepard
performed each surgery.
As to the Informed Consent forms, the BME acknowledged that
Brigham's name was sometimes identified on the form as the
physician who would be performing the patient's abortion, and that
all of the forms were maintained within a larger patient record
wherein his name was identified. However, the BME declared that
"one reviewing the Informed Consent form alone would again have
no way to know that . . . Brigham was the physician who was to
perform the abortion." Indeed, relying on its "collective
expertise," the BME concluded that "such practice is inconsistent
with general standards for obtaining and recording an informed
consent." It therefore concluded that "[w]hile the failure to
89 A-1944-14T1
have identified . . . Brigham on an Informed Consent form could
again readily be excused, or considered to be a 'minor' violation
in any isolated instance, the consistency of the practice renders
the violation far more concerning."
Viewing the violations on the Abortion Records, Recovery Room
Logs, and Informed Consent forms in the aggregate, the BME
concluded Brigham's "misleading record-keeping practices support
a conclusion that he engaged in the use or employment of
dishonesty, deception or misrepresentation." The BME stated:
[E]ach deceptive practice was done to mislead
and confuse a subsequent reader of . . .
Brigham's records, and to generally obscure
the truth about the actual procedure performed
and the identity of the physician who
performed the procedure. We thus conclude,
based on record-keeping practices alone, that
. . . Brigham should be found to have violated
N.J.S.A. 45:1-21(b), and should be subject to
penalty for that reason as well as for the
reason that his records failed to conform to
the requirements of the Board's record-keeping
regulation, N.J.A.C. 13:35-6.5 in turn
providing basis for disciplinary sanction
pursuant to N.J.S.A. 45:1-21(h).
The BME, however, declined to find that Brigham's recordkeeping
constituted fraud and limited his violations of N.J.S.A. 45:1-
21(b) to his engaging "in the use or employment of dishonesty,
. . . deception, misrepresentation, false promise or false
pretense[.]"
90 A-1944-14T1
Brigham does not challenge the BME's factfindings. Instead,
he argues the BME erred by not considering all of the evidence
presented before it concluded his recordkeeping deficiencies were
substantial, serious, and deceptive. He claims there was no
evidence of intent to hide his identity in the records from any
subsequent reader or his patients. For example, as to the Abortion
Records, he asserts these documents were not prepared to deceive
a subsequent reader. He explains that aside from the records
impounded by the police before he had time to complete them, he
included his name as the physician who removed the fetus while
engaging in consultation with Shepard. He also claims patient
records are prepared for medical professionals, and they would
know from the notations in the document that surgical procedures
were performed even though the box for spontaneous delivery was
marked. Furthermore, any subsequent reader with "a modicum" of
medical knowledge also would understand the records.
As to the Recovery Room Logs, Brigham asserts he had nothing
to do with the entry notations and points to C.R.'s testimony that
she made them at Shepard's direction. He further claims, because
the patient records were replete with statements that he performed
the surgical procedures, anyone who reviewed them could not have
been misled.
91 A-1944-14T1
As to the Consent Forms, he asserts they were not deceptive,
even though these preprinted forms did not include the name of the
physician, because every patient had met him personally and knew
he would be performing the abortion. Also, his signature was on
every Laminaria insertion sheet and procedure record. Finally,
he points to testimony that the forms were completed without adding
his name.
Licensed physicians have a "duty to ensure that '[a]ll
treatment records . . . accurately reflect the treatment or
services rendered.'" Rosenblit v. Zimmerman, 166 N.J. 391, 399
n.1 (2001) (alterations in original) (quoting N.J.A.C. 13:35-
6.5(b)(2)). Further, N.J.A.C. 13:35-6.5(b) mandates that all
treatment records "accurately reflect" the treatment or services
rendered, and N.J.A.C. 13:35-6.5(b)(1)(ix) requires treatment
records to reflect "[t]he identity of the treatment provider if
the service is rendered in a setting in which more than one
provider practices."
It is undisputed the Abortion Records incorrectly indicated
spontaneous abortions had occurred, Brigham's name never appeared
on the Recovery Room Logs, and the majority of preprinted "Informed
Consent for Abortion after 14 Weeks" forms were blank where the
name of the doctor who would perform the surgery should have been
inserted. Moreover, Brigham admitted to completing patient
92 A-1944-14T1
records well after treatments, which Lichtenberg found was
unreasonable.
The BME's decision that Brigham's recordkeeping violations
constituted acts of dishonesty, deception, misrepresentation,
false promise or false pretense under N.J.S.A. 45:1-21(b) is
entitled to deference, as the evidence and inferences that could
be drawn therefrom support this conclusion. Although we will not
simply rubberstamp an agency's decision, we "may not 'engage in
an independent assessment of the evidence as if [we] were the
court of first instance.'" In re Taylor, 158 N.J. 644, 656-57
(1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Even
if other evidence in the record allowed for a contrary result, the
BME understood the issues and the relevance of the information in
the patient records. We should not substitute our "views of
whether a particular penalty is correct for those of the body
charged with making that decision." Stallworth, 208 N.J. at 191(Citation omitted). "If . . . [we are] satisfied after [our]
review that the evidence and the inferences to be drawn therefrom
support the agency head's decision, then [we] must affirm even if
we would have reached a different result itself." Clowes v.
Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).
Further, Brigham's recordkeeping violations independently
provided sufficient grounds for the BME to revoke his license and
93 A-1944-14T1
impose sanctions under N.J.S.A. 45:1-21. In In re Suspension or
Revocation of License of Jascalevich, 182 N.J. Super. 455, 457-58
(App. Div. 1982), we upheld the BME's license revocation of a
physician who was charged with, among other things, violations of
his recordkeeping responsibilities. We stated:
We are persuaded that a physician's duty
to a patient cannot but encompass his
affirmative obligation to maintain the
integrity, accuracy, truth and reliability of
the patient's medical record. His obligation
in this regard is no less compelling than his
duties respecting diagnosis and treatment of
the patient since the medical community must,
of necessity, be able to rely on those records
in the continuing and future care of that
patient. Obviously, the rendering of that
care is prejudiced by anything in those
records which is false, misleading or
inaccurate. We hold, therefore, that a
deliberate falsification by a physician of his
patient's medical record, particularly when
the reason therefor is to protect his own
interests at the expense of his patient's,
must be regarded as gross malpractice
endangering the health or life of his patient.
[Id. at 471-72.]
Accordingly, we find the BME did not err by concluding Brigham
committed serious and substantial recordkeeping violations. We
further find, based on a physician's duty to ensure accurate
treatment records, that these violations independently provided
sufficient grounds for the BME to revoke Brigham's license and
impose sanctions under N.J.S.A. 45:1-21(b) and (h).
94 A-1944-14T1
VII.
Lastly, Brigham contends that the sanctions of license
revocation, penalties, and costs are not sustainable by the BME's
conclusions that he had violated the TOP rule, engaged in the
unlicensed practice of medicine in Maryland, and committed
recordkeeping violations. Making no specific arguments, he
generally claims the BME's conclusions are not supported by the
facts and are contrary to New Jersey and Maryland law. In his
reply brief, he asserts that the BME's bias and unfairness was due
to the fact that this matter concerned "the explosive issue" of
late term abortions.
"[T]here is no doubt of a court's power of review under the
tests of illegality, arbitrariness or abuse of discretion and of
its power to impose a lesser or different penalty in appropriate
cases." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93
(1973). However, our "review of an agency's choice of sanction
is limited." Zahl, 186 N.J. at 353. As a general rule, we "accord
substantial deference to an agency head's choice of remedy or
sanction, seeing it as a matter of broad discretion, especially
where considerations of public policy are implicated." Div. of
State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997)
(citations omitted).
95 A-1944-14T1
We may set aside a sanction only "where [we are] satisfied
that the agency has mistakenly exercised its discretion or
misperceived its own statutory authority." Polk, 90 N.J. at 578.
The test is "whether such punishment is 'so disproportionate to
the offense, in the light of all the circumstances, as to be
shocking to one's sense of fairness.'" Ibid. (quoting Pell v. Bd.
of Educ., 356 N.Y.S.2d 833, 841 (1974)). Where a penalty or
sanction is found to be in error, we may "finally determine the
matter by fixing the appropriate penalty or remand it to the
[agency] for redetermination." Henry v. Rahway State Prison, 81
N.J. 571, 580 (1980).
As we previously explained, the MPA grants the BME "broad
authority" to regulate the practice of medicine. Zahl, 186 N.J.
at 352. The UEA allows the BME to revoke a physician's license
by finding a preponderance of the evidence that the physician
violated any of the subsections in N.J.S.A. 45:1-21. Polk, 90
N.J. at 560. In addition to license revocation, the BME may assess
civil penalties against the physician under N.J.S.A. 45:1-22.
Neither of those statutes requires patient harm before authorizing
revocation. Zahl, 186 N.J. at 355.
Thus, even though we reverse the BME's finding that Brigham's
conduct violated the TOP rule, there was ample evidence to support
its conclusions that he violated N.J.A.C. 13:35-6.5 by keeping
96 A-1944-14T1
deficient patient records, and engaged in gross negligence and
practiced medicine without a license in Maryland.
Furthermore, the BME concluded that Brigham had "repeatedly
withheld pertinent, if not crucial, information from his
patients," in violation of N.J.S.A. 45:1-21(b). Most importantly,
it explained
that each and every patient treated by . . .
Brigham had a right to know, and should have
been told, what . . . Brigham himself knew
namely, that he could not legally perform an
abortion in New Jersey. Each and every
patient had a right to know that, in the event
there was any emergency requiring
hospitalization in New Jersey before the time
of the scheduled procedure, . . . Brigham
could not have performed their abortion in New
Jersey, and could not even have been involved
in their care because he held no hospital
privileges. Each and every patient should
likewise have been told that her abortion
would be performed in Maryland rather than in
New Jersey, and should have been given far
more specific information about the nature and
location of the facility where . . . Brigham
intended to perform the abortion. Similarly,
each and every patient had a right to know,
and should have been told, that . . . Brigham
was not in fact licensed in Maryland, that his
intent was instead to rely on an exemption to
Maryland licensure law and to perform [the]
abortion "in consultation" with . . . Shepard.
Whether those disclosures would or would
not have changed patients' elections to have
. . . Brigham perform their procedure is
speculative but ultimately irrelevant - what
is relevant is that those were crucial facts
and key elements necessary to allow a patient
to make a knowing and informed choice about
97 A-1944-14T1
her care options. . . . Brigham's failure to
be forthright and honest with his patients
corrupted the informed consent process and
fundamentally shattered the trust inherent in
the physician-patient relationship.
Finally, based on the constellation of
factual findings and conclusions above, we are
convinced and specifically conclude that the
allegations that . . . Brigham engaged in
professional misconduct, and thereby violated
N.J.S.A. 45:1-21(e), are fully supported on
the record below. . . . Brigham went to great
lengths to create a thick haze to shroud his
practice from scrutiny by licensing
authorities in Maryland and New Jersey, and
even to keep his patients from learning
critical information. He repeatedly and
consistently prepared his records in ways
designed to confuse or obscure any review of
both who was doing, and what was being done,
in Elkton.
Those acts evidence a fundamental lack
of candor and ultimately evince a brazen
disregard and disrespect of the rights of
patients, as well as for the authority of
licensing agencies and the need for those
agencies to be able to protect the public
interest. They are thus acts which support,
if not dictate, a conclusion that . . . Brigham
engaged in professional misconduct.
The record amply supports the BME's conclusions and its
decision is entitled to deference based on its expertise and
legislative authority. Further, the BME followed the law and its
regulations governing the grounds for revocation and sanctions,
considered all factors relevant to Brigham's continued licensure,
and weighed the public interest and the continued need for
98 A-1944-14T1
pregnancy termination services against countervailing concerns
that society be protected from professional ineptitude.
Accordingly, we find the BME's sanction of license revocation is
not "shocking to one's sense of fairness." Polk, 90 N.J. at 578.
Affirmed.
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