State Bd. of Medical Examiners v. Weiner

• Decision Date: 05 July 1961
• Docket Number: No. A--564,A--564
• Citation: 172 A.2d 661,68 N.J.Super. 468
• Parties: STATE BOARD OF MEDICAL EXAMINERS, and Roscoe P. Kandle, State Commissioner of Health, Complainants-Respondents, v. Albert L. WEINER, Respondent-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 468

68 N.J.Super. 468

172 A.2d 661

STATE BOARD OF MEDICAL EXAMINERS, and Roscoe P. Kandle State Commissioner of Health, Complainants-Respondents, v. Albert L. WEINER, Respondent-Appellant.

No. A--564.

Superior Court of New Jersey Appellate Division.

Argued June 19, 1961.

Decided July 5, 1961.

Charles A. Cohen, Camden, for respondent-appellant (Plone, Tomar, Parks & Seliger, Camden, attorneys; William Tomar, Camden, of counsel; Charles A. Cohen on the brief).

David D. Furman, Atty. Gen., for complaints-respondents (Burrell Ives Humphreys, Deputy Atty. Gen., of counsel and on the brief; Thomas F. Tansey, Deputy Atty. Gen., on the brief).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an appeal by Albert L. Weiner, pursuant to R.R. 4:88--8, contesting the action of the State Board of Medical Examiners (Board) in temporarily suspending his license to practice medicine and surgery pending the outcome of a manslaughter indictment returned against him by the Grand Jury of Camden County. The appeal presents substantial challenges to the nature and extent of the professed statutory suspension and revocation authority of the Board.

The history of this litigation was developed in part in our decision holding that Dr. Weiner possessed the right to appeal, as from a final order, reported in 67 N.J.Super. 199, 170 A.2d 467 (App.Div.1961), but further exposition is warranted in view of the unusual circumstances surrounding the initial suspension and the later continuation thereof, the latter event comprising the major subject of this appeal.

Following a significant outbreak of alleged serum hepatitis (resulting in nine deaths) among patients treated and administered parenteral injections by Dr. Weiner, the State Commissioner of Health--by notice of October 25, 1960--ordered the osteopath, 'in the interest of protection of public health based upon evidence of an unusual incidence of mortality due to an infectious or other toxic agent,' to cease 'the administration and use of parenteral and other drugs and materials until further notice.' Dr. Weiner immediately complied with this order, which, with a slight modification to permit injections of gamma globulin, has remained in effect to the present time.

Shortly thereafter, Dr. Weiner was notified by the Deputy Attorney General, counsel to the State Board of Medical Examiners, to appear before the Board's Committee on Illegal Practice in Princeton, N.J. on November 16, 1960, for the purpose of 'inquir(ing) into certain alleged practices in the treatment of certain of your patients.' Dr. Weiner appeared at the meeting, a transcript of which is included in the record before us. He was represented by counsel, who were equipped with an investigator and a 'medical consultant.' Six members of the Committee, ten members of the Board (plus several of their secretaries), and the Board's Chief Administrative Officer were present. The proceeding was conducted by the aforementioned counsel to the Board.

At the outset, Dr. Weiner was informed that any statements made could later be used against him, but was requested to cooperate in a 'very informal' proceeding in order that the Board might receive a full picture of the factual details relating to certain known incidents in his recent practice. He was informed that

'* * * at this point, there is no formal charge against you insofar as this Board is concerned. This is merely an inquiry. We're attempting to get from you an explanation of what this is all about, so that the Board can make its own determination, if any future course of action is necessary.'

When asked by Dr. Weiner's attorney to identify the statutory basis for the proceeding and to detail any charges contemplated against his client, the Board's counsel referred momentarily to N.J.S.A. 45:9--16, mentioned the possibility of 'a criminal charge of homicide,' and proclaimed that 'if the Board at any time feels that any practitioner licensed by the Board is not practicing in a manner which is consistent with the standards which this Board observes, it can call the license in at any time and suspend and revoke it, if it feels it is in the best interest of the general health and welfare.' He then further indicated the Board's position with respect to the proceeding:

'* * * We are extending a courtesy to Doctor Weiner respecting his rights and his position to the Nth degree. * * * You can refuse to answer, you can demand to leave this room and to take your client with you, but I am advising you now that if you take such action Doctor Weiner will leave this room without his license, because there are 13 deaths already involved here. The only thing this Committee wants to know at this time is, what is causing these deaths. We want to get to the bottom of it, and I would appreciate your cooperation and your client's cooperation in telling us his story.'

Dr. Weiner's recital, interspersed by questions and comments from the Board and Committee members and from counsel, was essentially a summary of the recent events in his practice, his reaction to them, and the preventative measures he had taken. He related that he was licensed to practice in New Jersey and had so practiced since 1943. Since 1955, he had been certified in psychiatry by the American Ostopathic Board of Neuropsychiatrists. His practice was exclusively neuropsychiatric, and he operated mainly on the basis of referrals from other physicians and from several hospitals in New Jersey and Pennsylvania with which he was associated. In addition to his hospital connections, he attended clinics one afternoon a week, and, on another afternoon, taught psychiatry and neurology at the Philadelphia College of Osteopathy. His sole office was located in Erlton, Delaware Township, Camden County, and his hours were by appointment in the mornings and evenings, five days a week. The duration of each appointment depended on the type of treatment involved, and varied from 10 minutes to 45 or 50 minutes. He was aided in his practice by two nurses.

Dr. Weiner's therapy consisted mainly of analysis and electric shock, in connection with which he would administer several kinds of drugs, including sodium surital, sodium amobarbital, atropine, methapyraline, hormones, vitamin B, and methan phetamine. In cases of narcoanalysis, the amount of drug injected was determined by the level at which the patient was able to start talking freely. He estimated that he had four to five dozen needles and syringes in the office. He purchased his medication (referring particularly to the sodium surital at this point) through one of the hospitals with which he was connected, in large quantities of five-gram vials. Since the vials were designed for multiple use, the contents would be reconstituted, in the original vial, with 200 cc's of physiological saline. The drug would then be ready for use, each vial usually yielding about ten separate injections. Dr. Weiner said that he administered all intravenous injections personally but that intramuscular injections, such as pre-shock administrations of atropine and methapyraline, or vitamin and hormone injections, might be given by the nurses. He estimated that he administered an average of two to three dozen injections a day and the nurses another 20 or so. He maintained that patients would never, on an office visit, receive injections from his nurses without also seeing him.

Dr. Weiner's normal sterilization procedures consisted of depositing used needles and syringes in a container of commercial detergent, purely for cleansing purposes, for an hour or more, and, when a collection of used instruments had accumulated in the cleanser, placing them all in a hot air sterilizer (he also had a boiling water sterilizer in his office, which had not been in use since 1958) equipped with a laboratory timer. Since the sterilization procedures were usually carried out by his nurses, Dr. Weiner had no first-hand knowledge of their methods; but he said that their instructions were to run the sterilizer continually at a temperature of 375 degrees Fahrenheit and to set the timer, for each batch of instruments, for at least 15 minutes.

Dr. Weiner recalled that he had first encountered difficulty in his practice when a teen-age boy under narcoanalytic treatment came down with an attack of severe abdominal pain three days after his last injection, on July 14, 1960, and was admitted to Metropolitan Hospital for medical examination, which was inconclusive. The boy died on the following day, July 18. As the family refused to permit an autopsy, the case was referred to the County Coroner for a post-mortem; 'phosphorous poisoning' was listed as the cause of death. Several deaths followed shortly thereafter (although it appears from Dr. Weiner's testimony that he was unaware of the one which occurred on July 28, 1960, and knew only of the death of Townsend L. Harris on July 31, 1960). Following the last mentioned demise, the question arose as to possible toxicity of nardil (which the patient had been taking); Dr. Weiner and the attending physician called a physician at one of the pharmaceutical houses, but the inquiry apparently produced no results. On September 7, 1960 another death took place, with findings of 'hepatic destruction'; however, a tissue analysis by a pathologist was inconclusive for either viral or toxic hepatitis. Another death occurred on September 15, 1960, the patient succumbing while on vacation in Illinois.

Following the sixth fatality (although, according to Dr. Weiner, it was only the fourth that he had learned about at that time), one George Lauer, who died on September 24, 1960 at the Delaware Valley Hospital, in Bristol, Pa., and an autopsy report of 'hepatic necrosis,' Dr. Weiner took steps to review his office procedures and techniques. He discussed the situation with Dr. Bond, the internist at Delaware Valley, and it was...