IN THE MATTER SUSPENSION OR REVOCATION LICENSE OF WILLIAM M. BURKE, M.D., TO PRACTICE MEDICINE AND SURGERY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5030-04T1

IN THE MATTER OF THE SUSPENSION

OR REVOCATION OF THE LICENSE OF

WILLIAM M. BURKE, M.D., TO

PRACTICE MEDICINE AND SURGERY

IN THE STATE OF NEW JERSEY

________________________________________________________________

 

Argued November 1, 2006 - Decided November 30, 2006

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the New Jersey Board

of Medical Examiners, Docket No.

BDS7960-02.

Robert Baum argued the cause for

appellant William M. Burke, M.D.

(Garrubbo, Capece, D'Arcangelo,

Millman & Smith, attorneys; Mr. Baum,

on the brief).

Joan D. Gelber, Deputy Attorney General,

argued the cause for respondent State of

New Jersey (Stuart Rabner, Attorney

General, attorney; Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Ms. Gelber, on the brief).

PER CURIAM

Dr. William M. Burke had practiced cardiology and internal medicine in this State since 1966. In 2001-2002, the Board of Medical Examiners charged him with gross malpractice, negligence, dishonesty, and various other malpractices. Administrative Law Judge (ALJ), Elinore Reiner, conducted a lengthy hearing and issued an initial decision recommending that the Board revoke the doctor's medical license. The Board upheld the ALJ's decision and revoked Dr. Burke's license. The doctor appealed, arguing that the revocation proceedings were barred by the entire controversy or collateral estoppel doctrines, the proceedings violated his due process rights, Judge Reiner was biased and committed cumulative errors, the State failed to prove that he deviated from accepted standards of medical practice, and the Board abused its discretion by revoking his license rather than imposing some lesser penalty. After reviewing the record in light of these arguments and the pertinent law, we conclude that they are all without merit. R. 2:11-3(e)(1)(D)-(E). Consequently, we affirm the Board's final decision and add only these brief comments.

Although Judge Reiner was permitted to draw an adverse inference from Dr. Burke's failure to testify at the revocation proceedings, Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810, 821 (1976), such an inference was not necessary to decide this case. This was so because the State submitted overwhelming proof of shoddy, fraudulent, and unsafe medical practices involving not only record keeping and billing but also x-rays, stress tests, and injections. There was sufficient credible evidence in the record from which all of the ALJ's findings, which were adopted "in their entirety" by the Board, could reasonably have been made. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Considering the important public interests at issue, it was not a violation of due process to proceed administratively against the doctor despite the ongoing criminal investigation. The doctor was not indicted until after the administrative hearings concluded. There was no constitutional barrier precluding Dr. Burke from being required to choose whether to testify in the administrative proceedings or invoke the Fifth Amendment, even though providing testimony may have aided the ongoing criminal investigation. State v. Kobrin Sec., Inc., 221 N.J. Super. 169, 174 (App. Div. 1987), rev'd on other grounds, 111 N.J. 307 (1988).

Before the Board proceedings began, the doctor settled two Department of Environmental Protection (DEP) charges regarding unnecessary exposure of human beings to radiation. N.J.S.A. 26:2d-10. In support of his claim-preclusion argument, Dr. Burke cites only Hackensack v. Winner, 82 N.J. 1, 33 (1980). This case should not be read so broadly as to preclude the Board from protecting the public from unsafe, dishonest, and ineffective physician practices. In fact, Winner recognized that the judicially developed issue/claim preclusion doctrines should be applied prudently and selectively in administrative proceedings. Id. at 31. Here, none of the doctrines should be applied to prevent revocation of the doctor's license because the Board's concerns far exceeded the narrow focus of the DEP proceedings.

Dr. Burke asserted at oral argument that the State experts judged him by the wrong standard of care. This argument is erroneous for two reasons. First, Dr. Weber did not testify that all physicians should be held to an "excellent" standard of care with respect to record-keeping; rather, he simply explained that the standard required accurate and complete notes that would aid in caring for a given patient, and it was Dr. Burke who commented, while representing himself, that this appeared to him to be a "very high level of care." Dr. Ben-Asher assessed Dr. Burke's record-keeping based upon the minimum that would be acceptable in a given situation. He explained that a brief note would suffice when a patient has a minor ailment, but that the notes would have to be far more extensive if the patient was suffering from hypertension, a heart murmur, or shortness of breath.

Second, and most significant, even though Dr. Weber believed that doctors should practice medicine at the "highest standards of care" and that there was no "excuse for sloppy medicine," we must recognize the expertise of the Board and its ability to discern malpractice, gross malpractice, and unprofessional conduct. In re Suspension or Revocation of the Certificate of Heller, 73 N.J. 292, 308 (1977). This proceeding concerned the "revocation of a professional license and [was] not a civil action for malpractice, which would require expert testimony as to a standard of care." Id. at 308-09. It was not necessary in this proceeding before the Medical Board to provide expert testimony to establish the appropriate standard of care. Ibid.

The conduct of a trial, including cross-examination and its appropriate limits, is firmly within the discretion of the trial judge. Persley v. N.J. Transit Bus, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003); Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000). The same power is granted an ALJ. N.J.A.C. 1:1-14.6(k), (m). Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion that has deprived a party of a fair trial. Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993). That is not the case here.

Here, we find no justification to interfere with Judge Reiner's conduct, and we reject the doctor's allegations of bias. Perhaps we might have ruled differently on a few of the many difficult issues the judge confronted, but we discern in the record only a pattern of impartiality and fairness to a pro se litigant. After evaluating the doctor's contentions regarding the ALJ's conduct of this trial and her rulings pertaining to all witnesses, especially Orlandi, Leaver, Ben-Asher, Beveridge, Stefanelli, Knight, Kielty, Delaney, Hernandez, and Olsen, we find no support for the bias charge. Although hearsay was admitted, as is permitted in administrative proceedings, Weston v. State, 60 N.J. 36, 52 (1972), the judge based no ultimate fact exclusively on hearsay. Ibid.

Finally, we will not ordinarily interfere with the imposition of a penalty that is "both jurisdictionally permissible and reasonable under the circumstances." In re Jascalevich Revocation, 182 N.J. Super. 455, 472 (App. Div. 1982). Judge Reiner found that Dr. Burke demonstrated a "patent disregard for the safety and welfare of his patients, as well as a flagrant disregard for the statutory and regulatory requirements that are intended to assure that medical practitioners do not intentionally or negligently provide substandard services." The Board noted "proven allegations" that the doctor had exposed his patients to "grave risks of harm by performing grossly negligent radiologic studies, . . . incompetent medical examinations, . . . grossly negligent and unnecessary diagnostic studies, . . . and unsterile injection[s]." Furthermore, the Board noted many acts of billing fraud and a failure to make required disclosures regarding his loss of HMO privileges and malpractice insurance. We agree that the evidence supports the Board's penalty, and conclude that in this case revocation was not only reasonable, but also jurisdictionally permitted, and most assuredly justified. N.J.S.A. 45:1-21(b)-(e), (h).

 
Affirmed.

(continued)

(continued)

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A-5030-04T1

November 30, 2006