Last week, the New Jersey State Board of Medical Examiners (“Board”) took unusual disciplinary action against a physician licensee who was not represented by an attorney.
By Consent Order filed July 30, 2018, the Board found that this physician had engaged in the indiscriminate “prescribing of high dosages of controlled dangerous substances [“CDS”] without good cause” when she was employed as the medical director of a pain management practice in 2016. The Board’s Order did not elaborate further on this finding.
Although the Board’s recent disciplinary practices—part of the State’s wider campaign to curtail dangerous CDS prescribing habits—typically lead to the imposition of significant punishment for this type of alleged misconduct, i.e., licensure suspension or revocation,the Board did not impose such a sanction here. Instead, it only reprimanded this physician and took the added step to note that the reprimand was issued specifically “[f]or the Board’s finding that [the physician] engaged in the indiscriminate prescribing of Controlled Dangerous Substances during her period of employment” at the pain management practice. The Board also assessed a $10,000 civil penalty, but stayed the monetary penalty in its entirety. Because, however, the Board found that she had “relapsed into alcohol and/or substance abuse” during her employment as a psychiatrist at another medical practice in 2018—two years after the alleged bad prescribing—the Board accepted her “voluntary surrender” of her medical license “pending a demonstration of fitness, full Professional Assistance Program (‘PAP’) support and further Order of the Board.”
The Board’s reprimand of a physician for indiscriminate prescribing is a notable deviation from the Board’s usual, and far more punitive, approach to cases where it finds improper CDS prescribing. Upon closer review, the Board’s disposition suggests that it might not have had sufficient evidence to support that charge. Rather, it appears that the Board might have leveraged the disciplined physician’s recent substance or alcohol abuse relapse to pressure her to accept a reprimand and thereby waive the process and rights guaranteed to her by the New Jersey Constitution and the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.
In order to prove the charge of indiscriminate prescribing, the Board must overcome substantial evidentiary hurdles. The Board, acting through the Attorney General, would generally need to retain an appropriate expert to review the physician’s medical records, assess the propriety of the presumed bad prescribing, and produce an expert report strong enough to establish—in the face of contrary reports and testimony that would usually be presented by the defense in a contested administrative proceeding—that the prescribing deviates from accepted standards of care and constitutes negligence or gross negligence by a preponderance of all the evidence.
In this case, the Board’s order does not expressly state that it possessed such evidence. Indeed, the Board’s imposition of a mere reprimand for allegations of improper prescribing of unspecified CDS “in high dosages” “without good cause” suggests strongly that it did not, in fact, have the necessary evidence, and that it was willing to accept the imposition of the lesser, but still significant and permanent, sanction of a reprimand merely to resolve the aging CDS allegations against this physician. Indeed, the Board’s Order does not even require the physician to complete remedial continuing medical education courses regarding safe CDS prescribing. Nor does the Board’s Order state that it would consider imposing restrictions on the physician’s ability to prescribe CDS when she returns to practice upon demonstrating substance abuse rehabilitation. The omission of such provisions—typically included in Consent Orders resolving allegations of indiscriminate CDS prescribing—further underscores the Board’s apparent lack of evidence.
The Board’s readiness to publicly and quickly dispose of the CDS allegations at issue in this case, is understandable. Against a highly-politicized backdrop of heightened governmental efforts to curb the State’s tragic opioid epidemic, the Board and the good public servants who serve it, including the Assistant and Deputy Attorneys General assigned to investigate and prosecute licensed professionals, face considerable pressure to resolve allegations of indiscriminate prescribing in a manner suggestive of the positive developments that the public demands and deserves with respect to the opioid epidemic. This environment may cause officials to encourage practitioners to consent to a sanction that otherwise might not be supported by the evidence.
Practitioners under Board investigation—especially those without legal representation—should therefore carefully scrutinize the allegations levied against them before agreeing to accept the imposition of a sanction that will have long-term, and adverse, professional consequences. The Board’s unusual disciplinary action here—against a physician who did not have the benefit of legal counsel—is a case in point. An experienced professional liability attorney will be able to assist such a practitioner assess the strength of the State’s evidence, and navigate the complex professional board disciplinary process towards a reasonable, evidence-based, resolution.