IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF JOHN L. HOCHBERG, M.D., LICENCE NO. 25MA04163600 TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY (BOARD OF MEDICAL EXAMINERS)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0503-16T2
IN THE MATTER OF THE SUSPENSION
OR REVOCATION OF THE LICENSE OF
JOHN L. HOCHBERG, M.D.,
LICENSE NO. 25MA04163600
TO PRACTICE MEDICINE AND SURGERY
IN THE STATE OF NEW JERSEY.
________________________________
Submitted April 24, 2018 – Decided July 31, 2018
Before Judges Reisner, Hoffman, and Gilson.
On appeal from the New Jersey Board of Medical
Examiners.
Stephen A. Gravatt, attorney for appellant
John L. Hochberg, M.D
Gurbir S. Grewal, Attorney General, attorney
for respondent New Jersey Board of Medical
Examiners (Andrea M. Silkowitz, Assistant
Attorney General, of counsel; Kathy S.
Mendoza, Deputy Attorney General, on the
brief).
PER CURIAM
Dr. John L. Hochberg appeals from a July 25, 2016 final
decision and order issued by the Board of Medical Examiners, and
from an August 25, 2016 supplemental order. In its July 25, 2016
decision, the Board found that Hochberg committed record-keeping
violations, and acts of negligence and gross negligence with
respect to two private patients, B.L. and K.O., whom he was
treating for chronic pain. See N.J.S.A. 45:1-21(c) and (d)
(authorizing license suspension for gross negligence or repeated
acts of negligence); N.J.A.C. 13:35-7.6 (setting forth required
procedures for prescribing controlled dangerous substances);
N.J.A.C. 13:35-6.5 (requiring documentation of patient treatment
information). The Board also found that Hochberg committed gross
negligence in the treatment of N.D.B., an inmate at a prison where
Hochberg was the medical director.1
In the July 25, 2016 decision, the Board imposed a $60,000
penalty and suspended Hochberg's medical license for five years;
the first two years are an active suspension and the last three
years may be stayed and served as probation. In the August 25,
2016 order, the Board also assessed approximately $350,000 in
counsel fees and costs. Hochberg did not claim that he could not
pay the assessed amounts, which the Board allowed him to pay in
installments over a period of four years.
1
The Board also found that Hochberg committed gross negligence
and recordkeeping violations with respect to several additional
private patients, including prescribing opioid pain medications
without keeping proper patient records. However, he is not
appealing the findings with respect to those patients.
2 A-0503-16T2
The majority of Hochberg's appeal from the July 25, 2016
decision focuses on the Board's findings concerning N.D.B., who
died in prison while Hochberg was responsible for overseeing his
medical care. Hochberg contends that the Board should have
deferred to the administrative law judge's (ALJ's) determination
that Hochberg did not deviate from the standard of care, in failing
to order a blood transfusion for N.D.B. after his hemoglobin
dropped to a "dangerously low" level. Hochberg also contends that
the Board's factual findings about the need for the transfusion
were not supported by substantial credible evidence. He argues
that both the ALJ and the Board erred in finding gross negligence
in Hochberg's failure to order a reevaluation of the inmate's
psychiatric medication, amitriptyline (Elavil), to ensure that the
inmate's severe symptoms were not due to an overdose of the
medication.
In a point consisting of half a page, Hochberg also contends
that the Board erred in concluding that Hochberg did not actually
provide certain medical services to two private patients, B.L. and
K.O. Those findings were based on Hochberg's failure to document
such services in the patients' records and his failure to offer
3 A-0503-16T2
any witness testimony that he provided the services.2 Lastly,
Hochberg contends that the sanctions, penalties, costs, and fees
the Board imposed were excessive and an abuse of discretion.
After reviewing the record in light of the applicable legal
standards, we conclude that the Board's decision was supported by
substantial credible evidence, and the Board properly employed its
medical expertise in evaluating the expert testimony. Hochberg's
argument concerning B.L. and K.O. is without sufficient merit to
warrant further discussion, and as to those two patients, we affirm
for the reasons stated in the Board's decision. R. 2:11-
3(e)(1)(E). We find no abuse of discretion or shocking unfairness
in the sanctions, penalties, costs, and fees imposed. Accordingly,
we affirm both of the Board's decisions on appeal.
I
Before addressing the legal issues concerning N.D.B., we
summarize the medical evidence and expert testimony concerning
Hochberg's treatment of this patient.
Hochberg was the site medical director for Northern State
Prison, where N.D.B. was incarcerated. He was responsible for all
medical care provided to that prison's inmates. All physicians
2
Hochberg does not challenge the ALJ's or the Board's findings
that he committed multiple other violations with respect to K.O.
and B.L.
4 A-0503-16T2
and nurses involved in the medical care of those inmates had full
access to their electronic medical records, which included orders
and notes.
Manuel Garcia, a psychiatrist at the prison, testified that
he began treating N.D.B. in 2007 for depression, personality
disorder, and a substance abuse disorder. Garcia prescribed
amitriptyline, also known as Elavil, which N.D.B. was receiving
during the entire period at issue. Garcia believed that N.D.B.
had a high tolerance for Elavil and in the fall of 2008, he
substantially increased N.D.B.'s dosage.
In addition to his psychological problems, N.D.B. had
Hepatitis C. In October 2008, Hochberg prescribed treatment for
the Hepatitis C, consisting of a series of twelve injections of
the anti-viral drugs Pegasys and Ribavirin. Decreased hemoglobin
levels was an expected side effect, so N.D.B.'s hemoglobin level
was to be tested every two weeks. Hemoglobin levels are reported
in grams per deciliter; the normal range is 12.5 to 17. At the
start of treatment, N.D.B.'s hemoglobin level was 15.4.
After N.D.B.'s third injection on November 12, 2008, his
hemoglobin level decreased to 11.2. Hochberg's treatment notes
did not record the decrease in hemoglobin, but indicated that the
viral load of Hepatitis C had dropped significantly and that the
injections would continue.
5 A-0503-16T2
On November 26, 2008, after N.D.B. received his fifth
injection, he told Richard Mucowski, a prison psychologist who was
conducting a routine follow-up visit, that he wanted to stay in
bed. N.D.B. described symptoms evocative of flu and depression,
which were typical for his course of treatment for Hepatitis C.
On December 3, 2008, just before N.D.B. received his sixth
injection, he told Mucowski that he had flu-like symptoms and was
discouraged, "feeling like he's been beaten up" and mildly
depressed. On December 5, 2008, Dr. Hochberg noted that N.D.B.'s
hemoglobin level was 9.9.
On December 10, 2008, Garcia saw N.D.B. He noted that N.D.B.
had a dependency mentality and persistently demanded "sedation."
On that date, N.D.B. told Garcia that he needed Elavil because the
Pegasys was deepening his depression. Garcia re-ordered the
prescription for Elavil.
Later that same day, N.D.B. received the seventh injection
of anti-viral medication. For unknown reasons, no lab test for
hemoglobin was ordered after that injection or the next three.
On December 19, 2008, after the eighth injection, Dr. John
Godinsky, another prison physician, visited N.D.B. Godinsky noted
that he discussed "abnormal labs" with N.D.B., but that "all
treatments" would continue. On December 24, 2008, after the ninth
6 A-0503-16T2
injection, Mucowski visited N.D.B. and noted his complaint of
dizzy spells since starting the Hepatitis C treatment.
On December 31, 2008, the day of the tenth injection, N.D.B.
complained again of dizziness, and also about shortness of breath,
tightened muscles, and chest pain. Dr. Narsimha Reddy visited
him, noted that the symptoms "subsided spontaneously," and did not
order any changes.
N.D.B.'s eleventh injection was administered on January 7,
2009, and a lab test was ordered on January 12, 2009. The
hemoglobin result was 6.4, which Godinsky called "low." Godinsky
requested a consultation with Dr. Husain, an infectious disease
specialist, to "evaluate anemia secondary to" Hepatitis C
treatment.
Godinsky also ordered a repeat lab test and wrote that he
intended to order Epogen, also known as Aranesp or erythropoietin,
if N.D.B.'s hemoglobin level was low again. Epogen counters anemia
by stimulating the production of red blood cells.
Despite his note implying an intention to wait for the next
lab test, on January 13, 2009, Godinsky ordered the administration
of Epogen. On that same day, N.D.B. was admitted to the prison
infirmary, because he had become dizzy and light-headed. Nurse
Nadia Jean Pierre noted that N.D.B. was "stable and ambulatory"
7 A-0503-16T2
upon admission and had "no acute distress," although he was pale
and slightly weak.
When nurse Ogundana arrived for her overnight shift starting
on January 13, 2009, N.D.B. was sleeping. At 4:00 a.m. on January
14, during a routine check for vital signs, he was easily aroused
from sleep, and he had no complaints or acute distress, although
he looked "ashen."
On January 14, 2009, Hochberg asked for a psychiatrist or
psychologist to see N.D.B. because the Hepatitis C treatment might
aggravate "his bipolar problems," although nothing in N.D.B.'s
records documented a bipolar condition. Garcia and Hochberg
visited N.D.B. together. Garcia noted that N.D.B. was very pale
and complaining of "passing episodes of dizziness." Garcia
testified that Hochberg called N.D.B.'s anemia "marked." Garcia
testified that he was not concerned that the dose of Elavil might
be excessive, because he believed that N.D.B. had a high tolerance
for it, and because N.D.B. was alert, oriented, not confused, and
his mouth was not dry.
A January 14, 2009 lab report indicated that N.D.B.'s
hemoglobin level had dropped to 5.1. On January 15, 2009, Hochberg
saw N.D.B. and noted the new hemoglobin level of 5.1, as well as
a lower white blood cell and platelet count. Nonetheless, Hochberg
assessed the patient as "clinically sound." He noted, however,
8 A-0503-16T2
that the twelfth and final injection for Hepatitis C was on hold.
The eleventh injection had been administered eight days earlier.
Hochberg also noted that Epogen had been prescribed for the
patient.
On January 16, 2009, a Friday, Hochberg saw N.D.B. and noted
the absence of acute distress. However, that afternoon, infectious
disease nurse Margaret Ukpuno noted that N.D.B. complained of
dizziness after taking a shower, and noted that the staff
encouraged him to stay in bed. Ukpuno informed Dr. Husain, the
consulting infectious disease specialist, about N.D.B.'s
hemoglobin level of 5.1. Husain responded by recommending lab
tests every two or three days until the hemoglobin stabilized at
about 7 to 8, then weekly until it increased to about 10, and then
monthly until it was normal. Ukpuno "flagged" Husain's response
for Hochberg's attention. Hochberg would later countersign it on
Tuesday, January 20, 2009.
From January 16 to January 20, 2009, the patient appeared
pale, and he had some dizziness and low blood pressure. On January
20, during rounds before the end of her overnight shift, nurse
Ogundana found N.D.B. sitting up in bed. He was pale and had a
slight bruise on the bridge of his nose. He reported that he had
fallen, and that his hands were so shaky that he was dropping
everything. She saw juice and coffee on the sheets and the floor.
9 A-0503-16T2
She asked N.B.D. to extend his hands, and they shook. He had been
served breakfast in his cell, because he felt weak and the
infirmary staff did not want to risk a fall.
Hochberg saw N.D.B. that same day and found him to be pale,
but alert and stable, oriented, and in no distress. He noted that
N.D.B.'s hemoglobin had dropped to 4.3, and that the Hepatitis C
viral load was undetectable. Hochberg sent an e-mail to Yasser
Soliman, the Director of Utilization Management, stating that if
N.D.B.'s hemoglobin level dropped any lower and if N.D.B. became
"symptomatic," he would need a transfusion "this weekend."
Hochberg added that N.D.B. "may have fallen as a result of his
anemia, but seems stable."
On January 21, 2009, at 6:15 a.m., Ogundana noted that N.D.B.
was unkempt and dirty, with juice "all over his clothing." He
walked with a broad stance and swung from side to side as if he
were going to fall, so he was instructed to remain in bed. He was
not oriented to time, because he had awakened at midnight and
asked for breakfast. He was told the time, but five minutes later
he said he needed a wheelchair because he could not walk far
without falling and he wanted to go to breakfast.
At 8:39 a.m. on January 21, Hochberg saw N.D.B. and considered
him oriented. He also received Dr. Husain's consultation note.
Husain referenced the hemoglobin levels of 5.1 and 4.3 and
10 A-0503-16T2
confirmed that N.D.B.'s treatment with the anti-viral drugs should
be suspended.
Also, on January 21, Soliman responded to Hochberg's e-mail
by advising him that a request for transfusion would have to be
made promptly if N.D.B. were to be scheduled for outpatient
transfusion on Friday, January 23, 2009. Hochberg replied that
he would try "Aranesp" (Epogen), and stated that if N.D.B.'s
hemoglobin level did not improve "by Friday or perhaps Monday,"
he would send N.D.B. for an outpatient transfusion.3 Soliman
replied that transfusions had to be scheduled on Fridays, and that
requests took a few days to process. Hochberg responded that he
would make the request the next day if the stat lab test results
that he was awaiting warranted it. Later that day, Hochberg
received the lab report, stating N.D.B.'s hemoglobin level as 4.5.
Hochberg noted that as a "mild gain."
That afternoon, two nurses responded after N.D.B. slipped and
fell. His vital signs were normal. Hochberg put N.D.B. on "fall
precaution" status.
3
The record does not explain why Aranesp would first be "tried"
on January 21, 2009, eight days after Godinsky had prescribed
Epogen and seven days after Hochberg ordered the patient to "start"
taking Epogen.
11 A-0503-16T2
On January 22, 2009, at 6:56 a.m., Ogundana noted that N.D.B.
was easily arousable and had no complaints. On January 23, 2009,
at 7:23 a.m., Ogundana noted that N.D.B. had no acute distress,
but his speech was mumbled and incoherent. Ogundana testified
that N.D.B. commented that he did not know what he was saying.
Ogundana added that, sometime after midnight, N.D.B. was in his
wheelchair and getting ready for breakfast. That was the third
instance of such confused behavior, and N.D.B. told her that he
did not always know what time it was. However, Ogundana testified
that she did not see anything during her shift that suggested a
need to call a doctor.
Hochberg saw N.D.B. at 8:39 a.m. on January 23, 2009. His
notes mentioned anemia, but also stated that the hemoglobin level
appeared to be rising, an apparent reference to the increase from
4.3 to 4.5. Hochberg noted that this meant the patient's blood
tests no longer needed to be sent to the lab on a "stat" basis.
Hochberg also noted that he intended to keep N.D.B. in the
infirmary until his hemoglobin level reached 8.
During the afternoon of Friday, January 23, 2009, nurse
Dorothy Okeke recorded N.D.B.'s blood pressure as 126/74, pulse
rate at 76, and pulse oxygen saturation at 97. N.D.B. was sleeping
in bed, but during rounds he had been arousable and verbally
responsive. He complained that his hand was shaking and causing
12 A-0503-16T2
him to drop his juice and food. N.D.B. also complained of muscle
weakness and fainting, and he had been "seen on [the] floor."
At some point during the overnight shift, N.D.B.'s vital
signs were noted at similar levels as at the prior reading. At
5:00 a.m. on January 24, 2009, during nursing rounds, N.D.B. was
found sitting in his wheel chair.
Later that morning, at 6:11 a.m., a guard told Ogundana that
N.D.B. was not responsive, so she and the medication nurse
immediately went to his cell. His body was warm, but he had a
very weak pulse with no breath sounds, and Ogundana could not get
a blood pressure reading. The pulse oximeter device had a negative
result, which she understood to indicate that "there is no life."
Ogundana and the other nurse attempted CPR, but N.D.B. was
pronounced dead as of 7:12 a.m.
An autopsy was performed the following day. The final autopsy
report listed the cause of death as "[c]ardiomegaly with
ventricular dilatation complicated by amitriptyline [Elavil]
intoxication." The report also noted "[m]arked anemia following
hepatitis treatment" as being "contributory."
The State and Hochberg each presented expert testimony
concerning Hochberg's treatment of N.D.B., as well as other
patients. Dr. Paul Goldberg, who was board certified in internal
medicine, testified for the State. Goldberg opined that a
13 A-0503-16T2
hemoglobin level of 9.9 represented moderate anemia, and was an
expected side effect of N.D.B.'s Hepatitis C treatment, but that
medical action was not required at that point. According to
Goldberg, the later decrease to 6.4 was significant.
Goldberg further opined that a hemoglobin level of 5.1 was
"alarming" because it was dangerously low, enough to make a person
weak and confused and to cause circulatory collapse. He testified
that Hochberg should have noted physical exam findings to justify
his conclusion that N.D.B. was "clinically sound" at that level,
and Hochberg should have considered the possibility of internal
bleeding. However, Hochberg apparently disregarded that
possibility, because he did not even order an occult blood test.
Goldberg also testified that Hochberg should have recognized
that the nurse's notes from January 20, 2009, about N.D.B.'s
falling and shakiness, showed that the anemia was affecting N.D.B.
– that he was becoming symptomatic. He opined that the dizziness,
in a young man who was previously functioning normally, was "quite
striking" and was a sign of sickness or decompensation. According
to Goldberg, having hands too shaky to hold things, along with
increasing dizziness and falling, was a significant deterioration.
Goldberg opined that Hochberg's failure to perceive that N.D.B.
was symptomatic was "profoundly below the standard of care."
14 A-0503-16T2
Goldberg opined that N.D.B.'s behavior and confusion early
on January 23, 2009, were consistent with cerebral hypoxia due to
anemia, and that Hochberg should have considered that condition
as well, given N.D.B.'s hemoglobin level. Goldberg testified that
the increase in hemoglobin from 4.3 to 4.5 was insignificant.
Goldberg acknowledged that a decision to transfuse is "based
on clinical judgment," but he believed that the medical literature
called for a transfusion when the hemoglobin level declined to 6,
unless exceptional circumstances dictated otherwise. His final
opinion was that N.D.B. was "critically ill" and that the nursing
staff documented his decompensation, yet Hochberg failed to act
"in the face of clear evidence that this was a very sick patient,"
which was "unequivocally a gross deviation."
Goldberg later acknowledged that weighing the risk of
transfusion against the risk of harm from not transfusing was also
a matter of clinical judgment, and that a patient's being immuno-
compromised would make the risks from transfusion "at least
somewhat greater." However, Goldberg testified that the risk of
complications was still quite low, and the risk to N.D.B. of having
a transfusion was greatly outweighed by the benefits. He opined
that the standard of care "when confronted with this specific
situation" of an anemic patient "getting sick" for uncertain
15 A-0503-16T2
reasons was to "have acted vigorously," which would have included
transfusion.
However, Goldberg testified that Hochberg's notes on January
23, 2009, indicating that N.D.B.'s hemoglobin no longer needed to
be tested on an expedited basis, plainly showed that Hochberg was
not even considering a transfusion. Goldberg opined that the
approach of just watching blood counts while doing nothing
"proactively" was "without a doubt" a gross deviation from the
standard of care, at least by the time N.D.B.'s hemoglobin level
declined to 5.1 and lower.
When confronted with an article stating that administering
Epogen could be an alternative to "chronic transfusion" for
treating anemia caused by drugs used to treat Hepatitis C, Goldberg
explained that N.D.B.'s anemia was acute rather than chronic. He
also explained that a transfusion can increase the hemoglobin
level by two grams per deciliter within an hour, whereas Epogen
takes four weeks to increase it by one gram.
When asked if a transfusion would have been of any benefit
if N.D.B. had in fact been suffering from amitriptyline toxicity,
due to Elavil, Goldberg opined that relieving the burden of anemia
would have increased N.D.B.'s capacity to handle other problems,
including such toxicity. Goldberg testified that he would have
found deviations from the standard of care even if N.D.B. had
16 A-0503-16T2
recovered, and he was not basing his conclusions on an assumption
that anemia was the cause of death.
Goldberg opined that Hochberg had full responsibility for all
of N.D.B.'s care because he was the prison medical director. As
N.D.B.'s condition worsened, the patient records did not show that
Hochberg sought further advice from Husain and Soliman about
anemia, or from Garcia and Mucowski about whether Elavil could
have been causing N.D.B.'s symptoms.
Doctor Angelo Scotti, who testified as Hochberg's expert, was
a primary care physician with a subspecialty in infectious
diseases. He also had experience directing an emergency room and
an intensive care unit. Scotti testified that transfusion
protocols became more conservative starting in the 1980s, when
increasing numbers of patients acquired infections such as
hepatitis and HIV from transfused blood. According to Scotti,
transfusion is only mandated - as opposed to being a matter of
clinical judgment - when a patient has hemorrhagic shock, or shock
due to blood loss.
Scotti testified that transfusion is not mandated by the
patient's hemoglobin level alone, but rather by the patient's
entire condition. According to Scotti, the standard of care is
to transfuse when mandated, and failing to do so would be a
deviation. Conversely, where transfusion is not mandated,
17 A-0503-16T2
ordering a transfusion, where there is no "true indication" for
it, would be a deviation. Scotti testified that not every patient
with a hemoglobin level of 5 or 6 should receive a transfusion,
although he conceded that when the hemoglobin level is less than
6, "you certainly should be considering transfusion in most
patients."
Scotti opined that N.D.B.'s condition, even as Goldberg
described it, did not mandate transfusion. He testified that,
when Hepatitis C medications decrease hemoglobin, the treatment
is to stop them, which Hochberg did. Scotti acknowledged that
N.D.B.'s hemoglobin "didn't remarkably increase" from the Epogen
treatment, and that N.D.B. "actually died before [the hemoglobin
level] came up," even though its administration was started at an
appropriate time.
When asked to describe N.D.B.'s condition "during the last
three or four days of his life," Scotti said that N.D.B. was
"deteriorating[,]" "[a]pparently from toxicity from an anti-
depressant," and that he had many symptoms of toxicity and "in
fact, died from the toxicity." The symptoms were limited to the
mental deterioration shown by N.D.B.'s "intermittent episodes" of
imbalance and of confusion about the time of day. Scotti asserted
that N.D.B. exhibited "no physical abnormalities."
18 A-0503-16T2
Scotti opined that N.D.B.'s hemoglobin level was stable even
though it was low. He testified that dizziness was a complication
of Elavil even at normal and nontoxic levels, and in any event,
dizziness was "a very difficult symptom" to assess because patients
use the term to describe "almost everything." It could also have
been a complication of the Epogen, because "dizziness and nausea
are side effects of almost any medication." However, Scotti opined
that disorientation "certainly" was not a symptom of anemia,
because he had never seen anemia cause that symptom in his
experience or in the literature.
Scotti acknowledged that "sometimes" Epogen has an effect
"within a day or two and sometimes it doesn't happen[,]" which is
why "the routine" is to order its administration for thirty days,
because if it has no effect by then, "it's probably not going to
work." He admitted that giving a transfusion would have been a
reasonable exercise of clinical judgment in this case.
Nonetheless, based on N.D.B.'s records, Scotti would not have
ordered a transfusion even when N.D.B.'s hemoglobin level was 4.3.
According to Scotti, the risks of transfusion included acquiring
another disease from the transfused blood, due to imperfect
screening, and possible resulting damage to N.D.B.'s liver. On
cross-examination, however, he admitted that by January 15, the
19 A-0503-16T2
patient's hemoglobin had reached what a testing lab would consider
"panic values" indicating a potential emergency.
In addition to opining that N.D.B.'s confusion, dizziness and
other symptoms "were most likely related to his toxic levels of
the anti-depressant" Elavil, Scotti agreed that Hochberg should
have been familiar with Elavil. In response to a question from
the ALJ, Scotti confirmed that Hochberg "should have considered
. . . if Elavil was playing a part" in the patient's symptoms. He
admitted that the medical records did not reflect such
consideration. Scotti denied, however, that Hochberg necessarily
should have documented his consideration of that possibility. He
asserted that it was "appropriate" to note a differential diagnosis
in the patient's records but "it's certainly not always done."
Hochberg did not testify at the hearing.
II
In his initial decision, the ALJ found that Scotti's
experience with transfusion justified giving his opinions greater
weight than Goldberg's opinions. The ALJ relied on Scotti's
testimony in finding that the standard of care did not mandate a
transfusion for N.D.B. at any particular hemoglobin level. He
credited Scotti's opinion that Hochberg did not deviate from the
standard of care by making a clinical decision to give Epogen the
20 A-0503-16T2
"necessary time" to work while remaining open to a transfusion "at
some point."
However, the ALJ agreed with Goldberg's opinion that Hochberg
committed "a substantial departure from the standard of care," and
thus gross negligence, by failing to consider whether N.D.B.'s
symptoms could have reflected a condition other than anemia that
required hospitalization and transfusion. In particular, he found
that Hochberg should have considered whether the medication in
N.D.B.'s "mental-health-related regimen" was producing N.D.B.'s
symptoms. The ALJ found that Hochberg could have pursued that
inquiry himself or ensured that it was pursued by Garcia, the
doctor who was "most directly responsible for and trained to deal
with" N.D.B.'s psychiatric issues and medication. The ALJ noted
that Scotti did not disagree with that view.
In rendering its decision, the Board relied on the same
medical evidence as the ALJ. However, the Board relied on its
"collective medical expertise" to "reject [the ALJ's] finding that
the expert opinion of Dr. Scotti was more persuasive than that of
Dr. Goldberg," and to reject the ALJ's "conclusions of law" about
negligence, which the ALJ based on Scotti's testimony.
The Board agreed with Goldberg that N.D.B. was symptomatic
in numerous ways to the point of becoming critically ill, and that
he needed a transfusion, regardless of whether the "precise cause"
21 A-0503-16T2
of his condition was anemia or tricyclic toxicity. The Board
rejected Scotti's testimony that Hochberg had a justification for
waiting for N.D.B. to become "symptomatic" and to see if N.D.B.
would show a significant response to the Epogen. The Board found
instead that "the patient record" showed that N.D.B. was already
symptomatic by the time his hemoglobin level declined to 4.3, with
syncope, disorientation, and muscle weakness. It was
"inconceivable" to the Board that anyone with a hemoglobin level
of 4.3 would not be symptomatic.
The Board further agreed with Goldberg that "the most minimal
standard of care" required an occult blood test, evaluations by a
neurologist and hematologist, and a CT scan, which were "simple
tests" that Hochberg failed to order. Rejecting the ALJ's view
on this point, the Board concluded that Hochberg's failure to
address N.D.B.'s "critically low" hemoglobin level constituted
gross negligence.
The Board adopted the ALJ's conclusion that Hochberg had been
grossly negligent "in failing to seek a psychological consult
during the last days of N.D.B.'s life." That conclusion reflected
Scotti's testimony that Hochberg should have focused on the
possibility that the patient had toxic levels of Elavil in his
system.
22 A-0503-16T2
III
On this appeal, our review of the Board's decision is limited
and deferential. See In re License Issued to Zahl, 186 N.J. 341,
353 (2006). We will not disturb the Board's findings so long as
they are supported by substantial credible evidence, "considering
the proofs as a whole with due regard to the agency's expertise."
Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965).
Hochberg contends that the Board should have deferred to the
ALJ's evaluation of the expert witnesses, and particularly to his
decision that Scotti's opinion on the transfusion issue was more
persuasive than that of Goldberg. He also asserts that the Board's
decision was not supported by substantial credible evidence. We
disagree.
The Board owes deference to the ALJ's evaluation of lay
witness testimony, and must clearly explain a decision to disagree
with that evaluation:
In reviewing the decision of an administrative
law judge, the agency head may reject or
modify findings of fact, conclusions of law
or interpretations of agency policy in the
decision, but shall state clearly the reasons
for doing so. The agency head may not reject
or modify any findings of fact as to issues
of credibility of lay witness testimony unless
it is first determined from a review of the
record that the findings are arbitrary,
capricious or unreasonable or are not
supported by sufficient, competent, and
credible evidence in the record. In rejecting
23 A-0503-16T2
or modifying any findings of fact, the agency
head shall state with particularity the
reasons for rejecting the findings and shall
make new or modified findings supported by
sufficient, competent, and credible evidence
in the record.
[N.J.S.A. 52:14B-10(c) (emphasis added).]
On the other hand, the Board is expected to use its expertise
in evaluating the testimony of expert witnesses. "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 Silberman, 169 N.J. Super. 243, 256 (App. Div.
1979) (quoting N.J. State Bd. of Optometrists v. Nemitz, 21 N.J.
Super. 18, 28 (App. Div. 1952)), aff'd o.b., 84 N.J. 303 (1980).
In this case, as in Silberman, "the Board evaluated the evidence
in the light of its expertise -- an expertise not possessed by the
[ALJ]." 169 N.J. Super. at 256.
Based on its collective expertise, the Board accepted
Goldberg's testimony that, once the patient's hemoglobin levels
dropped to a dangerously low level, the risks of withholding a
transfusion far outweighed any possible risks of the transfusion
itself. We find no basis to second-guess the Board's judgment.
Unlike Scotti, Goldberg explained that the potential risks of a
transfusion were statistically remote, as compared to the
24 A-0503-16T2
substantial risks presented by the patient's extremely low
hemoglobin levels. The Board also found, based on the evidence,
that the patient "was symptomatic and experiencing syncope,
disorientation and muscle weakness," warranting that he be
hospitalized for further testing and a transfusion. The Board's
conclusion, that Hochberg's failure to take those steps was gross
negligence, is supported by substantial credible evidence.
We likewise find no merit in Hochberg's contention that the
Board and the ALJ both erred in finding that Hochberg was grossly
negligent in failing to order a review of the patient's psychiatric
medication. The record reflects that the psychiatrist was giving
the patient a high dosage of Elavil, based on his belief that the
patient could tolerate that dosage. The patient's electronic
medical records, including his psychiatric treatment records, were
available to Hochberg, and Scotti confirmed that Hochberg should
have been familiar with Elavil.
The ALJ found that, as the patient's condition worsened,
Hochberg should have asked the psychiatrist to re-evaluate him to
determine whether his symptoms were related to the dosage of
Elavil. The Board accepted the ALJ's findings, which on this
issue, were supported by Scotti's testimony. The Board's decision
that Hochberg committed gross negligence, in failing to request a
25 A-0503-16T2
psychiatric consultation, is supported by substantial credible
evidence.4
IV
Lastly, Hochberg argues that the license suspension,
penalties and fees are excessive. We find no merit in those
arguments.
Our review of the Board's decision is highly deferential and
we may not substitute our judgment for that of the Board. Zahl,
186 N.J. at 353-544. We will not intervene unless the sanction
is outside the agency's authority, or the "punishment is so
disproportionate to the offense, in light of all the circumstances,
as to be shocking to one's sense of fairness." Id. at 354 (quoting
In re Polk, 90 N.J. 550, 578 (1982)). The Board was authorized
to impose a penalty of up to $10,000 for a first violation and up
to $20,000 for each separate or subsequent violation. N.J.S.A.
45:1-25(a). We find nothing illegal or conscience-shocking in the
$60,000 penalty the Board imposed.
Nor do we find anything shockingly unfair in the five-year
license suspension, which if Hochberg undergoes the retraining the
Board required, may allow him to return to practice on a
4
To the extent not specifically addressed, Hochberg's arguments
are without sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). We decline to consider arguments raised for the first
time in his reply brief.
26 A-0503-16T2
probationary basis after two years. The Board based the suspension
on its finding of "a clear pattern, spanning more than ten years,
of failure to recognize and aggressively treat significant medical
issues and poor recordkeeping." Additionally, based on findings
of gross negligence as to the five patients who were the subject
of the complaint, the Board questioned Hochberg's "ability to
provide competent basic medical care." Hochberg has not appealed
from most of those findings. We affirm the suspension, as well
as the $60,000 penalty.
Likewise, we find no basis to disturb the award of costs and
counsel fees, much of which the Board awarded at the rate of $175
an hour for an attorney with twenty years of experience. Further,
the Board carefully reviewed the application, and made reductions
where it believed the amounts were excessive. A fee award "will
be disturbed only on the rarest of occasions, and then only because
of a clear abuse of discretion." Packard-Bamberger & Co. v.
Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141
N.J. 292, 317 (1995)). We find no clear abuse of discretion here.
Affirmed.
27 A-0503-16T2