State Bd. of Medical Examiners v. Weiner

• Decision Date: 20 April 1961
• Docket Number: No. AM--142,AM--142
• Parties: STATE BOARD OF MEDICAL EXAMINERS, Complainant-Respondent, v. Albert L. WEINER, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 199

67 N.J.Super. 199

170 A.2d 467

STATE BOARD OF MEDICAL EXAMINERS, Complainant-Respondent, v. Albert L. WEINER, Respondent-Appellant.

No. AM--142.

Superior Court of New Jersey Appellate Division.

Argued March 27, 1961.

Decided April 20, 1961.

David Seliger, Camden, for respondent-appellant (Plone, Tomar, Parks & Seliger and Charles A. Cohen, Camden, attorneys).

Burrell Ives Humphreys, Deputy Atty. Gen., for complainant-respondent (David D. Furman, Atty. Gen., attorney).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This is a motion for leave to appeal the refusal of the State Board of Medical Examiners ('Board' hereinafter) to terminate its previous suspension of the license to practice medicine and surgery of the movant, Dr. Albert L. Weiner.

It appears that during a period of several months prior to October 25, 1960 a substantial number of patients of the movant, after being treated by him (for what ailment it does not appear in the papers before us) by parenteral injections, developed serum hepatitis. Fourteen of them died. On the date mentioned the State Commissioner of Health issued an order to the movant to cease the administration of parenteral and other drugs and materials until further notice '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.'

On November 16, 1960, it is stated in the Attorney General's brief, Dr. Weiner was notified to appear before the State Board of Medical Examiners' Committee on Illegal Practice. He appeared and was questioned concerning the outbreak of serum hepatitis. On November 17, 1960 the secretary of the Board wrote Dr. Weiner that the Board at a meeting on November 16, 1960 determined that his license to practice medicine should be 'temporarily suspended, effective immediately, until the conclusion of the Board's investigation into certain alleged practices in the treatment of certain of (his) patients.' The action was stated to be based 'on the opinion that to continue the privilege of license to practice medicine in New Jersey to a doctor where the morbidity and morality has reached the proportion which appears to be occurring in your practice is not in the public interest.'

No complaint or proceeding of any kind has been instituted by the Board since that time, nor has Dr. Weiner been served with specific charges or afforded a hearing or other opportunity to meet any charges against him, as is purportedly required by R.S. 45:9--16 N.J.S.A. before any suspension or revocation of license (with exceptions not here applicable) may take place. But an Ex parte investigation by the Board and other health agencies has been and, we are advised, is still going on to determine the precise cause of the outbreak of the disease.

On January 13, 1961 the movant filed with the Board a petition to terminate the suspension of his license, asserting he had 'given such aid in the investigation * * * as he has been requested to give,' and that more than a reasonable time to complete the investigation had elapsed. On February 13, 1961, no response having been received from the Board, movant's attorneys wrote to it requesting information on the status of the petition. The Attorney General responded for the Board February 28, 1961, stating that a report was being awaited from a liver specialist on an investigation being made for the Board and other state health agencies and that no final action would be taken until the report was received. It is not disclosed whether such a report was eventually received, but we were advised at the hearing of this motion that the investigation was still proceeding, another of Dr. Weiner's patients having died of the disease in March 1961.

A meeting of the Board took place on March 8, 1961 and Dr. Weiner's petition for reinstatement discussed, but, according to the affidavit of the secretary of the Board, 'no action or decision was taken thereon.' In consequence thereof this motion was filed by the movant.

Movant's position is that the suspension or the failure to lift it after a reasonable time had elapsed for investigation of the outbreak of the disease and his alleged connection with it and for the filing of charges against him which he might meet at a hearing, was violative of his rights under the statute. The total suspension of his license to practice for the four months which had elapsed at the hearing of the motion, and the prospect of its indefinite continuance without preferment of charges and hearing, obviously aggrieve him.

In opposition, the Attorney General submits an affidavit by Dr. Dougherty, Director of the Division of Preventable Diseases in the Department of Health, dated March 23, 1961, stating that an investigation is still being pursued into the matter by the Board, the State Health Department and the Bureau of Inspectors of the Division of Professional Boards; and that in his 'considered medical opinion the opidemiological, clinical and pathological findings show that the illnesses were infectious, viral in origin and transmitted by parenteral means.' He further says that in his 'considered medical opinion the above described outbreak of serum hepatitis and the illnesses and deaths therefrom resulted from the activities of Doctor Weiner, to wit, his repeated and continued failure to use reasonable, standard and accepted medical practices in the treatment of his patients.' The 'reasonable, standard and accepted medical practices' referred to are not specified in the affidavit, nor is it stated how they were violated by the licensee. It is to be noted in this connection, suprisingly, that negligence or malpractice, no matter how gross, is not specified in the statute which lists the kinds of offenses or transgressions for which the Board may suspend or revoke a medical license (N.J.S.A. 45:9--16). Convictions or pleas amounting to guilty on indictments or informations of certain criminal offenses are so listed, and the Attorney General suggests that one such, 'crime involving moral turpitude,' might be encompassed by Dr. Weiner's conduct, considered as repetitive gross negligence, but there is as yet no such indictment or information on file, much less a conviction or plea thereto.

However, the Attorney General informs us that the subject matter hereof is being, or shortly will be, presented to the Camden County grand jury and that indictments are expected to ensue. It is argued that an administrative suspension is proper when it occurs 'in connection with an investigation directed toward criminal prosecution'; moreover, that the Board's action was not punitive against Dr. Weiner, as in cases of suspensions or revocations under the statute, but protective of the public interest pending the outcome of an investigation looking to criminal proceedings being brought against the licensee. It seems, Sub silentio, to be conceded that the Board does not propose, whether...