A recently decided case, In the Matter of the License of Pemberton, M.D., is an example of the deference New Jersey courts give to decisions made by the New Jersey State Board of Medical Examiners. On June 10, 2024, the New Jersey Appellate Division upheld the Board’s decision to suspend a doctor’s license after he tested positive for illegal substances during a failed remediation plan, finding the Board’s decision to be well-reasoned and supported by substantial credible evidence as a whole. Given the doctor’s systemic use of illegal substances coupled with several positive blood and urine tests, the Appellate Division agreed that the Board did not have to wait for the doctor to cause harm to a patient before it suspended his license because the evidence clearly demonstrated that as the doctor was using illegal substances, his ability to practice medicine was likely to be impaired.

This case brings awareness to doctors, who should know that the Board has the power to suspend or revoke a doctor’s license if the doctor engages in drugs or uses alcohol within the previous 365 days in a manner likely to impair his/her ability to practice medicine with reasonable skill and safety.  N.J.S.A. 45:1-21(1). Doctors should also be aware that the Board’s authority is broad enough to revoke a medical license if the doctor poses a risk of harm to the next patient. Simply stated, the Board need not wait until the doctor causes harm before taking action. 

Additionally, this case highlights remedial action plans that hospitals can take to rehabilitate complaints related to a medical staff member’s conduct and poor quality of care if it stems from purported substance abuse.  The hospital can place the doctor on a remediation plan that could include a referral to the Professional Assistance Program of New Jersey (PAP).  The PAP works in tandem with the Board’s Impairment Review Committee (IRC) by providing services to doctors with chemical dependencies or other impairments. It is authorized by statute to enter into letter agreements with these doctors detailing their plan for recovery and each doctor’s obligations. Therefore, hospitals must also be aware that the PAP is obligated to report immediately the identity of any doctor that has not complied with the terms of this letter agreement, and to report to the IRC if that doctor has tested positive for the presence of a substance that was not appropriately prescribed for a legitimately documented reason, or if the doctor demonstrates a relapse. This is a separate avenue from the hospital’s corrective action, collegial intervention, or summary suspension.

Courts will only reverse the Board’s decision if it was arbitrary, capricious, or unreasonable or, if it was not supported by substantially credible evidence. The Appellate Division evaluated the Board’s decision using the following three criteria to determine whether the Board’s decision should be given substantial deference:

  1. whether the Board followed the law;
  2. whether the record contained substantial evidence to support the Board’s decision; and
  3. whether the Board’s decision was clear error because the conclusion could not have reasonably been made based on the relevant facts.

Ultimately, the Appellate Division found no merit in the doctor’s arguments that the State failed to demonstrate proof that he was impaired and determined that the Board’s thorough and well-reasoned decision was supported by the record. Read together, New Jersey courts will not disturb well-reasoned administrative decisions unless the decision is shown to be arbitrary and capricious.  Here, it was not.

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Photo of Jessica M. Carroll Jessica M. Carroll

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing…

Partner, Employment Law, Healthcare and Litigation Departments

Ms. Carroll concentrates her practice in litigation, with an emphasis on representing healthcare providers at both the state and federal levels and within arbitration forums. Her experience encompasses serving as counsel for hospitals in medical staffing and peer review disciplinary matters arising out of issues related to quality care and patient safety. She also provides risk management guidance on issues at the intersection of various state laws and medical licensing regulations, including the potential impact of physician medical staff disciplinary actions triggering the obligation to report to the National Practitioner Data Bank (NPDB).

Ms. Carroll’s work includes the representation of hospitals, physicians, physician practices, and pharmaceutical companies in matters related to restrictive covenants, breach of contract, violations of due process and fundamental fairness, defamation and trade libel claims, as well as matters related to professional licensure and credentialing. She also handles anti-competitive claims alleging violations of New Jersey’s Anti-Trust Act, the Sherman Anti-Trust Act, and the Lanham Act, in addition to employment related claims, including violations of the New Jersey Law Against Discrimination (NJLAD) and the Conscientious Employee Protection Act (CEPA).

Ms. Carroll counsels her clients on the most effective and economical legal strategies by evaluating liability and exposure against alleged damages. She handles a broad range of day-to-day tasks beginning at the inception of a matter, including orders to show cause, serving and responding to discovery, ensuring compliance with court-ordered deadlines, appearing and defending depositions, and retaining experts, through resolution by way of settlement, motion practice, or alternative dispute resolution.

Contact information:

jcarroll@greenbaumlaw.com | 973.577.1910 | vCard  | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.