PETER HARVEY, et al. v. ALAN L. LUPINACCI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6887-03T16887-03T1

PETER HARVEY, ATTORNEY GENERAL OF

NEW JERSEY; RENI ERDOS, DIRECTOR

OF THE NEW JERSEY DIVISION OF CONSUMER

AFFAIRS; and THE NEW JERSEY STATE BOARD

OF MEDICAL EXAMINERS,

Plaintiffs-Respondents,

v.

ALAN L. LUPINACCI,

Defendant-Appellant.

________________________________________

 

Argued September 28, 2005 - Decided

Before Judges Fall, Grall and Levy.

On appeal from Superior Court of New

Jersey, Chancery Division, Bergen

County, C-5-04.

Alan L. Lupinacci, appellant, argued

the cause pro se.

Susan C. Berger, Deputy Attorney General,

argued the cause for respondents (Peter C.

Harvey, Attorney General, attorney; Andrea

M. Silkowitz, Assistant Attorney General, of

counsel; Ms. Berger, on the brief).

PER CURIAM

Defendant Alan L. Lupinacci (a.k.a. A. Louis Lupinacci) appeals from a final order of the Chancery Division entered after a summary proceeding on the Attorney General's complaint alleging that defendant practiced medicine without a license, contrary to N.J.S.A. 45:9-22, and engaged in consumer fraud, contrary to N.J.S.A. 56:8-2. Judge Escala found that defendant committed both violations, denied his motion for reconsideration and entered an order restraining defendant from future acts of unlicensed practice and consumer fraud and requiring him to pay a $2500 civil penalty, and costs and fees in the amount of $8194. Because the judge's findings are supported by substantial credible evidence in the record and consistent with controlling legal principles, we affirm.

Although defendant formerly held a license to practice medicine in the State of New Jersey, the Board of Medical Examiners revoked that license on June 30, 1994. The revocation was based upon defendant's plea of guilty to ten counts of criminal sexual contact in the fourth degree contrary to N.J.S.A. 2C:14-3b. The victims of the crimes were his patients. Defendant sought to have his license reinstated, but the Board denied the application by order filed on January 4, 2000. Defendant has a M.D. and a N.D. As defendant explains it, the course of study that leads to a N.D. focuses on natural health and nutrition. Defendant's medical degree and his revoked license to practice medicine are in the name "Alan L. Lupinacci."

In June 2003, defendant was working in the Wyckoff Health Shoppe. A sign that reads "A. Louis Lupinacci, M.D., N.D., C.N.C., Nutritional Counseling" is prominently displayed in the shop's window.

On June 27, 2003, L.K. went to the shop to see "Dr. Al" on the recommendation of her sister's friend, who had described him as "a doctor who treated his patients with a different type of p[er]spective." When L.K. asked for "Dr. Al," defendant identified himself as the person she was looking for. L.K. told defendant that "he had treated [her] sister's friend for anxiety," and he sat down and talked to her. She explained that she recently "had been weaned off Paxil," and "wanted a second opinion . . . because [she] was still sad." On defendant's recommendation, L.K. scheduled a two-and-one-half hour consult session for June 30. The cost was $200. Defendant directed her to bring to the appointment both a urine sample and the results of specific blood tests. On a printed form bearing the heading "From the desk of: A. Louis Lupinacci, M.D., N.D., C.N.C., Nutritional Counseling," he listed the blood screens he would need. When L.K. inquired about medical insurance coverage, defendant told her he would give her the paperwork to submit.

L.K. took her urine sample to the June 30 appointment. Defendant accepted and tested the sample and declared it "good." During the course of her appointment L.K. cried, and defendant told her that he "was going to make [her] feel better physically and mentally." He asked her "intimate" questions about her "sex life" with her husband, and she responded because she believed she was talking to a doctor. She told defendant that she was taking prescription medication for hypothyroidism. At the close of the session, she paid defendant $294.50 for antioxidants that he recommended. He signed an invoice for L.K. to submit to her insurance carrier, over the title "A. Louis Lupinacci, M.D."

Although L.K. testified that defendant never told her he was not licensed to practice medicine or referred her to a doctor, defendant claims that he gave her business cards of a M.D. and a psychologist. He also testified that when dealing with clients he always says, "I am no longer involved in the practice of medicine, I am not a practicing physician. I do natural health now."

Within days of the appointment, L.K.'s husband returned the vitamins. Defendant refunded the purchase price, but did not refund the $200 fee for L.K.'s appointment. He signed the letter transmitting the refund over the title "A. Louis Lupinacci, M.D."

Defendant displays a disclaimer that is typed on eight-and one-half by eleven-inch paper, framed and hung beneath a clock on the wall to the side of the chair behind his desk. It reads: "Nutritional Counselors, at the Institute for Health and Wellness, L.L.C. do not practice medicine. Further, they do not diagnose, treat, prescribe for or cure any disease." The disclaimer further indicates, "counselors will approach your general health problems . . . and make suggestions that may help stimulate the body's natural healing powers."

On the basis of the foregoing evidence, Judge Escala found:

The defendant sought to capitalize on the[se] designations [doctor, Dr. and M.D.] in order to create the impression [in] a would-be customer that he in fact was an authentic "doctor," i.e., what the general public regards as a doctor, someone authorized by a license to practice medicine. I note that the defendant did not disclaim his being licensed to L.K., rather he disclaimed his "practicing medicine any more." . . .

If the defendant were not in the health-care field, the use of "Dr." or "M.D." would not be confusing. For example, a person with an M.D. after his name dealing in philately, or running an auto-repair shop, would not mislead customers as to the area in which he was operating. In such a case, not being licensed would be of no import. Here, however, defendant clearly sought recognition in the general field of health. Defendant, in fact, used that very word--health--in the names of his establishment, first "The Wyckoff Health Shoppe" and later "The Institute for Health and Wellness."

Defendant "counseled" L.K. for depression. . . . Counseling is treatment. The treatment of depression constitutes the practice of medicine. Bellardini v. Krikorian, 222 N.J. Super. 457, 459 (App. Div. 1988). Despite the fact that defendant did not prescribe drugs requiring a prescription to treat L.K.'s depression, his attempt to treat L.K.'s depression with vitamins still falls under [the] gamut of the practice of medicine. Heintze v. New Jersey State Board of Medical Examiners, 107 N.J.L. 420 (Sup. Ct. 1931)(a chiropractor

. . . whose assistant gave directions for vegetarian diet and use of flaxseed tea [in his presence], was practicing medicine and surgery), aff'd, 110 N.J.L. 24 (E & A 1933)].

Defendant raises three issues on appeal. He argues:

I. THE FAILURE OF THE TRIAL COURT TO

RECOGNIZE THAT IT WAS PREJUDICED AND

BIASED BY THE EVIDENCE SUBMITTED BY

THE STATE, ALONG WITH THE TRIAL

COURT'S FAILURE TO RECOGNIZE THE

SUBSTANDARD REPRESENTATION BY

DEFENDANT'S ATTORNEY VITIATED THE

PROCESS OF THE SUMMARY HEARING.

II. BY EXTENSION OF THE ABOVE (POINT I),

THE COURT'S FINDING THE DEFENDANT IN

VIOLATION OF THE CONSUMER FRAUD ACT

(N.J.S.A. 56:8-1 Et Seq.) SHOULD BE

MADE NULL AND VOID.

III. THE FAULTY READING, INTERPRETATION AND

APPLICATION OF N.J.S.A. 45:9-18 AND

N.J.S.A. 45:9-5.1 BY THE COURT, ALONG

WITH THE OMISSION OF KEY, IN FACT

ESSENTIAL, WORDING OF N.J.S.A. 45:9-

18, AND THE "INVENTING LAW AS YOU GO"

ATTITUDE CONSTITUTED ERRORS.

Our review of the record convinces us that defendant's arguments lack sufficient merit to warrant extended discussion in a written decision, and we provide a brief explanation for that conclusion on each issue. R. 2:11-3(e)(1)(E).

Defendant's claim about prejudice based on the Attorney General's evidence is essentially an objection to introduction of the Board of Medical Examiner's orders revoking and denying reinstatement of defendant's license to practice medicine. Both orders refer to defendant's criminal convictions. The status of defendant's license to practice medicine was relevant to the allegations in this complaint and the evidence was admissible to establish the Board's rulings. See N.J.R.E. 401; N.J.R.E. 402. The judge did not rely upon the underlying facts in reaching a decision on the present allegations and the probative value was not substantially outweighed by any risk of undue prejudice. N.J.R.E. 403.

Defendant bases his claim of bias at the time of the hearing on a question the judge posed. When defendant explained that a N.D. degree focuses on natural health and nutrition, the judge inquired: "[W]ho gives out such degrees[?] Is it something one could get at Harvard or Columbia University?" A judge may question a witness to clarify and qualify a witness' testimony, and the question neither suggests bias nor abuse of the judge's discretion. N.J.R.E. 614; State v. Medina, 349 N.J. Super. 108, 130-32 (App. Div.), certif. denied, 174 N.J. 193 (2002). Equally unsupported is the claim of bias based on the judge's denial of his motion for reconsideration. The judge's refusal to consider evidence that was available to defendant at the time of the hearing and his decision to limit argument to matters relevant to the relief requested were the product of a proper exercise of discretion not partiality. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996).

Judge Escala's findings on defendant's violations are supported by the record, and his legal conclusions are consistent with controlling principles. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Proof of defendant's license revocation and L.K.'s testimony established all the elements of unlicensed practice of medicine and consumer fraud.

Any person who practices "medicine and surgery" without a license is subject to penalty. N.J.S.A. 45:9-22. The phrase "the practice of medicine or surgery" includes both "the practice of any branch of medicine and/or surgery, and any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition . . . ." N.J.S.A. 45:9-5.1 (emphasis added). A person is "regarded as practicing medicine and surgery" if the person:

use[s] the words or letters "Dr.", "doctor", "professor", "M.D.", or "M.B." in connection with his name, . . . and . . . in connection with such title or titles . . . holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, or . . . offer[s] or undertake[s] by any means or methods to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.

[N.J.S.A. 45:9-18.]

L.K. went to a "health shoppe" posted with a sign that announced the presence of "A. Louis Lupinacci, M.D., N.D., C.N.C." When she asked for Dr. Al, he identified himself. When she said she was feeling "sad," he scheduled an appointment and requested blood test screens and a urine sample. He listed the blood tests he wanted on a form identifying himself as "A. Louis Lupinacci, M.D., N.D., C.N.C., Nutritional Counseling." When L.K. said she was "sad," defendant told her he would make her feel better physically and mentally. The evidence supports the finding that defendant used the titles M.D. and doctor while holding himself out as one able to diagnose (implicitly by requesting blood results and a urine sample and explicitly by declaring the urine "good") and able to treat her mental and physical condition by providing a remedy, the vitamins. See N.J.S.A. 45:9-18; N.J.S.A. 45:9-5.1; Pinkus v. MacMahon, 129 N.J.L. 367, 368-69 (Sup. Ct. 1943) (sale of health food remedy to improve the conditions of persons who described physical symptoms amounted to unauthorized practice of medicine).

The Attorney General's evidence also established consumer fraud. Defendant sold L.K. vitamins for approximately $300 and services for $200 by both creating and reinforcing a false impression that he was a medical doctor licensed to diagnose and make "better" the physical conditions contributing to her sadness. The sales amount to a violation of N.J.S.A. 56:8-2. That statute prohibits the "use . . . of any . . . deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression or omission of any material fact with intent that others rely . . . in connection with the sale . . . of any merchandise . . . ." Ibid. "Merchandise" is defined to include both goods and services offered to the public for sale. N.J.S.A. 56:8-1; cf. Macedo v. Dello Russo, 178 N.J. 340, 346 (2004) (advertising by licensed doctor is not subject to N.J.S.A. 56:8-2).

Defendant's claim of ineffective assistance of counsel is also without merit. On motion for reconsideration defendant sought to introduce evidence not presented by his attorney at the hearing: a copy of the business cards of a medical doctor and a psychologist; L.K.'s intake sheet; and a report of an undercover investigator for the Division of Consumer Affairs who visited him. He argues that his counsel's failure to introduce that evidence amounted to ineffective assistance of counsel. None of that evidence negates or undermines in any way the proofs that establish defendant's violations. Because there is no reasonable probability that the result of the proceeding would have been different if defendant's attorney had presented the evidence, see State v. Preciose, 129 N.J. 451, 463-64 (1992), we decline to consider whether counsel was deficient or if such deficiency would be relevant in the context of this civil action. See ibid.; State v. Fritz, 105 N.J. 42, 58 (1987).

At oral argument before this court, the Attorney General conceded that the final amended order should be revised to limit the restraint against defendant's business activity. We agree that the first paragraph of the order should be revised to substitute the word "when" for the phrase "and from" as follows: "from engaging in, or holding himself out as engaging in, the practice of medicine and surgery, including . . . counseling

. . . in a nutritional counseling business, health shop, health care service or similar establishment and from when using . . . 'doctor,' 'M.D.,' 'N.D.,' 'Naturopathic Physician,' 'Nutritional Doctor' or any other title denoting licensure in connection with [such an] establishment."

 
Affirmed.

We use initials to identify L.K. and seal the record in this case in order to protect confidential information about L.K.'s medical condition that was disclosed under the mistaken belief that she was addressing a medical doctor. See Fireman's Fund Ins. Co. v. Imbesi, 361 N.J. Super. 539, 542-43 (App. Div.), certif. denied, 178 N.J. 33 (2003).

Defendant has not argued that Macedo has any

relevance on the facts of this case.

(continued)

(continued)

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A-6887-03T1

October 14, 2005