By written order issued on August 22, 2018, the New Jersey State Board of Medical Examiners (“Board”) declined the Attorney General’s emergent request that it order the immediate, temporary, suspension of a physiatrist’s license for alleged indiscriminate prescribing of controlled dangerous substances (“CDS”). Instead, recognizing its “obligation to be fair” to the physiatrist, the Board ordered only that that he be “prohibited from prescribing, dispensing, and/or administering any and all [CDS] to any and all patients[.]” Notably, the Board’s decision might portend a significant change in its approach to the assessment and resolution of temporary suspension applications.

I. Background

On July 30, 2018, the Board ordered the disciplined physiatrist, Bruce Coplin, M.D., to show cause why his medical license should not be temporarily suspended, or otherwise limited. The Board’s Order came on the heels of the Attorney General’s (“AG”) same-day filing of a nine-count, forty-nine-page long, Verified Administrative Complaint alleging numerous instances of gross negligence and indiscriminate CDS (mostly opioids) prescribing vis-à-vis eight pain management patients whom he had stopped treating in 2016, 2017, or 2018.

As he summarized in his supporting brief, the AG alleged that Dr. Coplin “repeatedly failed to implement coherent treatment plans for his patients,” and “consistently prescribe[d] CDS without exploring any treatments within his physical medicine specialty.” The AG also alleged that Dr. Coplin’s records are “devoid of relevant and necessary information” including information that would “justify why a certain medication is warranted.” This conduct, the AG concluded, allegedly revealed that Dr. Coplin’s “inability to grasp the very fundamentals of medicine demonstrates that he presents an imminent danger to the public health, safety, and welfare and warrants the temporary suspension of license to practice medicine[.]”

Following an emergent hearing on August 8, the Board made clear that it did not agree with the AG’s claim that Dr. Coplin’s alleged misconduct justifies temporary suspension. To be sure, the Board found the physician “most disturbingly” ignored red flags of opioid diversion, “falsely recorded” physical examinations to justify his CDS prescribing, failed to develop long-term treatment plans or goals for his patients, failed to make “meaningful efforts to attempt alternative therapies and/or to taper the amounts of [prescribed] opioids,” and evinced a “dereliction of judgment” by pre-signing opioid prescriptions for distribution to his patients. Despite these serious findings, however, the Board concluded that it “necessarily must balance our paramount obligation to protect the public health, safety and welfare with our obligation to be fair to the Respondent” and thus held that its concerns for the public safety, which were “rooted to Dr. Coplin’s poor judgment in treating pain management patients,” will be adequately addressed by stripping Dr. Coplin’s authority to write opioid prescriptions. II. The Bottom Line

Make no mistake about it, the Board’s decision is a win for the doctor. Although he no longer has the legal authority to write prescriptions for controlled dangerous substances, Dr. Coplin will be able to continue to practice medicine in the months (and perhaps years) that it will take for the plenary proceeding on the AG’s Complaint to conclude before the Office of Administrative Law and, eventually, the Board. But the Board’s decision raises the question: if the physician’s judgment was so bad, and his conduct posed such a danger to the public, why didn’t the Board suspend the license? In the past, a finding of bad judgment, particularly when buttressed by the conclusions of the sort the Board has made here, would almost always result in the temporary suspension of the physician’s license.

This time was different. Despite its explicit determination that Dr. Coplin manifested “poor judgment” and “engaged in careless and reckless conduct” that “placed his patients and/or the public in clear and imminent danger,” the Board nonetheless concluded that the public would be protected by limiting his prescribing privileges pending a full trial on the merits. This unexpected result suggests either that the AG’s evidence did not show a strong, imminent danger to the public and/or that the Board might now be willing, in view of its renewed “obligation to be fair” to its licensees, to meaningfully consider resolving temporary suspension applications alleging indiscriminate CDS prescribing in a manner that is less severe than full licensure suspension. Indeed, the Board expressed that it is “[m]indful that imposition of a temporary suspension is an extraordinary remedy which should be imposed only when a full cessation of practice is necessary to adequately protect the public interest[.]”

By declining to order the immediate, temporary suspension of the medical license of a physician accused of indiscriminate opioid prescribing, the Board may be signaling a significant change in its approach to the assessment and resolution of temporary suspension applications that are predicated upon allegations of poor medical judgment and indiscriminate CDS prescribing. It now appears that the Board will give more credence to arguments that it has frequently rejected before—namely, that the public would be protected by limiting an accused physician’s prescribing privileges or other temporary restraints short of suspension. This suggests that the Board will more carefully scrutinize the AG’s allegations that a physician’s continued practice of medicine poses a “clear and imminent danger.” Most importantly, it reflects the considered judgment that the Board need not exercise the most draconian of statutory remedies at its disposal—the immediate, temporary, suspension of licensure before a trial on the merits—in order to protect the public health, safety, and welfare.