At the end of July, the Superior Court of New Jersey, Appellate Division, affirmed the State Board of Medical Examiners’ (“Board”) final decisions suspending the license of a physician for gross negligence, and assessing $410,000 in civil penalties and costs. See In re Hochberg, No. A-0503-16T2, 2018 N.J. Super. Unpub. LEXIS 1835 (App. Div. July 31, 2018). Most notably, the Court found “no basis to second-guess” the Board’s application of its “collective medical expertise” to reject the trial judge’s determination that the physician’s expert witness was more persuasive than the State’s expert on the issue of whether the physician engaged in gross negligence in his treatment of a patient who died under his care.

Factual Background

The disciplined physician, John L. Hochberg, M.D., was the medical director for Northern State Prison in Newark, N.J. As such, he was responsible for the medical care provided to all prison inmates. A young male inmate, identified only by the initials N.D.B., had been receiving treatment in the prison for depression, personality disorder, and substance abuse disorder. Beginning in 2007, and until his death in early 2009, N.B.D. was taking high dosages of amitriptyline, an antidepressant medication.

In October 2008, Dr. Hochberg prescribed N.D.B. treatment for Hepatitis C consisting of a series of injections of the anti-viral drugs Pegasys and Ribavirin. An expected side effect of those medications is decreased hemoglobin levels. At the start of treatment, the patient’s hemoglobin levels were 15.4 grams per deciliter, within the “normal” range of 12.5 to 17. Soon thereafter, however, the patient’s levels began a steady and precipitous decline during which he reported increased symptomology indicative of cerebral hypoxia due to anemia. Eventually, the prison was informed that the patient’s hemoglobin levels were at a “panic value” of 5.1. Even though Dr. Hochberg saw the patient after receiving that notice, his notes did not reference the low level, and he assessed the patient as “clinically sound.”

Meanwhile, other prison medical personnel continued to document, and “flag” for Dr. Hochberg’s review, the clinical deterioration of the patient’s condition, but Dr. Hochberg did not take action. Indeed, in the last days of his life, the patient’s hemoglobin levels dropped to 4.3, a dangerously low level, but Dr. Hochberg again dismissed the significance of this decrease and his records noted only that, if the patient’s levels decreased further, and if he became “symptomatic,” then a blood transfusion might be necessary. Even though he was advised to begin taking steps to admit the patient to the hospital for a transfusion, Dr. Hochberg declined to do so. During his final evaluation of the patient, Dr. Hochberg noted that the patient’s hemoglobin appeared to be rising, apparently referring to a newly recorded level of 4.5, and that this increase demonstrated that it was not necessary to continue to obtain “stat” labs for this patient. The next day, January 24, 2009, the patient died. The autopsy report identified the cause of death as “cardiomegaly with ventricular dilation complicated by amitriptyline intoxication.” The autopsy report also noted as “contributory” the patient’s “marked anemia following hepatitis treatment.”

Procedural Background

Later that year, the Attorney General of New Jersey (“AG”) sought the suspension or revocation of Dr. Hochberg’s medical license for a series of alleged violations ranging from improper record keeping to gross negligence concerning five patients, including N.D.B. The most serious charge—and the principal focus of Dr. Hochberg’s eventual appeal—alleged that Dr. Hochberg had provided grossly negligent medical care to N.D.B. by failing to order a blood transfusion and by failing to consider that the patient’s use of amitriptyline may have contributed to his deteriorating state. At trial before the Office of Administrative Law (“OAL”), Dr. Hochberg and the AG presented competing expert testimony. Dr. Hochberg’s expert testified that the applicable standard of care did not mandate blood transfusion for N.D.B., a patient who, in the expert’s view, was not symptomatic. The AG’s experts disagreed, and opined that N.D.B. was a “critically ill” patient and that the standard of care required Dr. Hochberg to act vigorously to treat him, including transfusion, and that Dr. Hochberg’s approach of just watching blood counts while doing nothing “proactively” was “without a doubt” a gross deviation.

The presiding Administrative Law Judge (“ALJ”) agreed with Dr. Hochberg’s expert that it was acceptable for Dr. Hochberg not to order transfusion, but found that Dr. Hochberg engaged in gross negligence with respect to N.D.B. by failing to consider the significance of the patient’s use of amitriptyline. In so doing, the ALJ concluded that Dr. Hochberg’s experts were more persuasive than the AG’s on the transfusion issue. The ALJ sustained most of the AG’s remaining charges. Based on his findings regarding N.D.B., the ALJ recommended that the Board suspend Dr. Hochberg’s license for six months and assess a civil penalty of $50,000 plus the costs of prosecution. The other violations, the ALJ found, did not warrant suspension of licensure.

Before the Board, the AG urged the Board to reject, among other findings, the ALJ’s conclusion that Dr. Hochberg’s failure to transfuse was not a gross deviation, and argued that the Board should adopt the findings of the State’s expert and then revoke Dr. Hochberg’s license. In contrast, Dr. Hochberg contended that his license should not be suspended because he treated N.D.B. in a way his expert, whom the OAL found to be more credible, thought appropriate.

The Board modified the ALJ’s findings of fact and conclusions of law, and imposed a five-year term of suspension and assessed $410,000 in costs and penalties. In so doing, the Board found that, with respect to N.D.B., Dr. Hochberg’s expert’s conclusion that an individual with N.D.B.’s low hemoglobin levels would not be symptomatic to be “inconceivable.” The Board stated that “[i]n our collective medical expertise, the risks of not doing a transfusion on a patient presenting as N.D.B. did far outweighed the possible risks of the transfusion itself.” Dr. Hochberg’s failure to address the needs of this “critically ill” patient, the Board held, constituted gross negligence. This key failure, along with other violations, showed that Dr. Hochberg had engaged in a “clear pattern, spanning more than ten years, of failure to recognize and aggressively treat significant medical issues and poor record keeping” justifying licensure suspension. In so doing, the Board confirmed the long-standing principle that “if treatment is not documented in the patient record, we cannot assume that [a physician] provided the treatment[.]” The Board also noted that Dr. Hochberg’s lack of remorse for his conduct militated against a lesser sanction.

On appeal, Dr. Hochberg did not challenge most of the Board’s findings and instead focused on the Board’s findings regarding N.D.B. He argued that the Board should have deferred to the ALJ’s evaluation of the expert witnesses, and particularly to the ALJ’s decision that Dr. Hochberg’s expert on the transfusion issue was more persuasive. The Appellate Division disagreed, finding that, unlike lay witnesses, the Board “is expected to use its expertise in evaluating the testimony of expert witnesses.” Following a comprehensive review of the administrative record, the Court concluded that the Board’s decision was supported by “substantial credible evidence” and that the Board’s sanction was not “shockingly unfair.”

Bottom Line

The Appellate Division’s decision underscores the deference it will accord the Board’s collective medical expertise. The Court is often hesitant to disturb the Board’s findings with respect to the propriety of medical care. Because the Board is statutorily empowered to suspend or revoke a physician’s license for any one of a broad range of reasons, see N.J.S.A. 45:1-21, physicians mounting appellate challenges to Board decisions should consider contesting all findings the Board made to justify the appealed actions—a strategy that Dr. Hochberg did not pursue. In addition, physicians may wish to consider reviewing sanctions imposed by the Board in other factually-similar cases to confirm that the appealed sanction is consistent with prior actions. If it is not, then, depending on the specific facts at issue, the physician might have a strong argument on appeal that the imposed sanction is arbitrary, capricious, and unreasonable.

Ultimately, the Board’s decision, as upheld by the Appellate Division, serves as a stark reminder for all physicians of their obligation, both to their patients and to their professional reputations, to document everything that happens over the course of a patient’s care, and, to pay close attention, and respond proactively, to all potentially adverse developments that might signal a decline in a patient’s condition.