Polk, Matter of

• Decision Date: 30 July 1982
• Docket Number: T,No. 141816,141816
• Citation: 449 A.2d 7,90 N.J. 550
• Parties: In the Matter of the Revocation of the License of Irwin Jacob POLK, M.D., Licenseo Practice Medicine and Surgery in the State of New Jersey.
• Court: New Jersey Supreme Court

Page 550

90 N.J. 550

449 A.2d 7

In the Matter of the Revocation of the License of Irwin Jacob POLK, M.D., License No. 141816, To Practice Medicine and Surgery in the State of New Jersey.

Supreme Court of New Jersey.

Argued Jan. 25, 1982.

Decided July 30, 1982.

Bertram P. Goltz, Jr., Deputy Atty. Gen., for appellant State Bd. of Medical Examiners (Irwin I. Kimmelman, Atty. Gen., attorney; Erminie L. Conley, former Asst. Atty. Gen., of counsel).

Lewis Cohn, Newark, for respondent Irwin Jacob Polk, M.D. (Sills, Beck, Cummis, Radin & Tischman, Newark, attorneys; Arthur J. Sills, Newark, of counsel).

The opinion of the Court was delivered by

HANDLER, J.

This appeal involves the revocation of a medical doctor's license by the State Board of Medical Examiners for violations of New Jersey statutes regulating the practice of medicine. The primary question presented is whether such violations must be established by clear and convincing evidence rather than by a preponderance of the evidence. The doctor whose license was revoked contends that the use of the lesser burden of proof in medical license revocation proceedings is contrary to the due process and equal protection guarantees of the federal and State Constitutions. Other claims relate to the validity of the statutory standards, the sufficiency of the evidence, the lack of procedural fairness in the manner by which the Board reached its final determination, and the excessiveness of the ultimate sanction of license revocation.

I

These proceedings commenced with the filing of a seven-count complaint with the State Board of Medical Examiners (Board) against Irwin J. Polk, M.D., a Lincroft allergist, charging him with sexual abuse of five juvenile female patients. The complaint alleged that Polk was guilty of "gross malpractice" under N.J.S.A. 45:9-16(h) and N.J.S.A. 45:1-21c; repeated acts of malpractice within the meaning of N.J.S.A. 45:1-21d; professional misconduct under N.J.S.A. 45:1-21e, as well as a lack of good moral character under N.J.S.A. 45:9-6; and an inability to act "consistent with the public's health, safety and welfare," as required under N.J.S.A. 45:1-21i.

The complaining juveniles testified against Polk at a hearing before a panel designated by the Board. The witnesses were adolescent females who were patients of Polk, in some instances for many years. Although there were individual variations among the stories, they shared a common core of factual allegations. All of the girls testified that, over the period of time covered by the complaints, Polk had embraced and kissed them, attempted to touch their pubic areas, fondled and kissed their breasts and made sexually suggestive remarks. Some of the juveniles testified that they were extremely upset and distraught as a result of these episodes. In one case, the girl's family filed a police complaint against Polk which apparently was not pursued.

The defense case consisted of the testimony of 34 witnesses. Over three days, the Board heard several doctors testify regarding both the need to touch female breasts during stethoscope exams and to palpate the abdomen during checks for ulcers. They further testified as to the heightened sensitivity of adolescent females to inadvertent or innocent touching during physical examinations. Witnesses included three past presidents of the Monmouth County Medical Society, each of whom testified to Polk's good reputation. Other character witnesses included two State assemblymen, a mayor, two ministers, a rabbi, the editor and publisher of the local newspaper and former patients. Ten present and former members of the doctor's staff testified, as did his office associate. All confirmed his personal style, which included physical gestures of affection for staff, friends and patients alike.

Polk also testified. He denied having behaved improperly toward any of the complaining witnesses or, indeed, toward any of his patients. For example, as to one of the complaining witnesses, C.D., he conceded that he might have patted her on the rear and complimented her on her body, but only as gestures of affection. He also said that he did not deliberately touch her breasts, except as might have been necessary for the stethoscope exam. He defended his actions as those of a physician trying to develop a rapport with a patient who was having a difficult time at home. He also denied trying to kiss any of his patients intimately and that if he had kissed anyone it would have been on the cheek only.

The three-member panel found that the complaining witnesses were credible. With the exception of two witnesses whose stories were not supported by sufficient evidence, the panel believed all of the complaining witnesses and determined that Polk had engaged in the particular acts charged for lascivious, not medical, reasons. It concluded that his conduct was "reprehensible." It further found the acts to have been committed "in a knowing manner" since there was "no evidence of mental or emotional incompetence," although Polk had sought and been granted additional time to prepare a psychiatric defense. It recommended that Polk's medical license be revoked.

Its findings were presented to the full Board of Medical Examiners, which by unanimous vote accepted the report's recommendations, including the penalty of revocation. Polk then filed an appeal. The Appellate Division reversed, holding:

It is our considered conviction that, quite aside from a violation of any constitutional prohibitions, considerations of fundamental fairness alone demand that disciplinary proceedings against physicians (essentially no different in purpose and no less crucial in effect upon the physicians than upon the lawyers) be subject to the clear-and-convincing standard of proof. In each instance, the protection of the public interest is the paramount concern, and "the dire consequences which may flow from an adverse finding" are identical. In short, we are unable to perceive any justifiable basis for the lawyer to receive the advantage of the more favorable standard of quantum of proof in disciplinary proceedings, while denying the benefit of the same standard to the physician similarly situated. [In Re Polk License Revocation, 178 N.J.Super. 191, 194, 428 A.2d 551 (App.Div.1981) ]

The Board of Medical Examiners filed a petition for certification which was granted. 87 N.J. 398, 434 A.2d 1077 (1981).

II

The first issue is whether the State Board of Medical Examiners could constitutionally revoke Dr. Polk's license to practice medicine using the preponderance of the evidence burden of proof as opposed to clear and convincing evidence. Polk asserts that due process under the Fourteenth Amendment, as well as under the State's Constitution, requires application of the higher clear and convincing burden of proof.

This jurisdiction has long recognized that the usual burden of proof for establishing claims before state agencies in contested administrative adjudications is a fair preponderance of the evidence. In Atkinson v. Parsekian, 37 N.J. 143, 149, 179 A.2d 732 (1962), we observed that: "In proceedings before an administrative agency, ... it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." See In re Suspension or Revoc. License of Kerlin, 151 N.J.Super. 179, 184 n.2, 376 A.2d 939 (App.Div.1977) ("Where disciplinary proceedings with respect to a profession or occupation are vested in an administrative agency in the first instance, the charges must be established by a fair preponderance of the believable evidence").

This burden of proof is not found explicitly in any general statute governing proceedings in contested cases before State administrative agencies, nor is it found in any of the provisions of Title 45, which defines the regulatory authority of the State Board of Medical Examiners and governs the practice of medicine in this jurisdiction. Nevertheless, this particular standard of proof--a preponderance of the evidence--has been consistently applied in agency adjudications for many years. ¹ See Malone v. Fender, 80 N.J. 129, 402 A.2d 240 (1979).

Despite this settled practice, Polk contends that application of the preponderance of the evidence burden of proof in the proceedings to revoke his license to practice medicine constitutes a denial of substantive due process.

Several jurisdictions that have expressly considered this issue have held that a preponderance of the evidence burden of proof is adequate to protect the interest involved in professional licensure. Ferguson v. Hamrick, 388 So.2d 981, 983 (Ala.1980); Sherman v. Commission on Licensure to Practice the Healing Art, 407 A.2d 595, 601 (D.C.App.1979); In re Wilkins, 294 N.C. 528, 242 S.E.2d 829, 842 (1978). Cf. Matter of Robson, 575 P.2d 771, 776-77 (Alaska 1978) (holding that due process does not require a higher standard than a preponderance of the evidence for disbarment of an attorney). But see Fallon v. State Bd. of Medical Examiners, 441 P.2d 322, 326 (Wyo.1968). Other decisions that apply a greater burden of proof suggest that this may be desirable as a matter of legislative policy, but it is not constitutionally mandated. Cf. Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (deportation proceeding); Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659 (1958) (naturalization proceedings).

In addressing Polk's constitutional argument, we find the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to be relevant and instructive. ² This analytical approach, as applied most recently by the Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), requires an examination and balancing of three factors: (1) the nature of the private interest affected by the proceeding; (2) the countervailing governmental...