IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF STEVEN C. BRIGHAM, ETC. (STATE BOARD OF MEDICAL EXAMINERS)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1944-14T1

IN THE MATTER OF THE SUSPENSION

OR REVOCATION OF THE LICENSE OF:

STEVEN C. BRIGHAM, M.D.

LICENSE NO. MA05106800

TO PRACTICE MEDICINE AND SURGERY

IN THE STATE OF NEW JERSEY.

_____________________________________

Argued May 10, 2018 – Decided September 7, 2018

Before Judges Simonelli, Rothstadt and Gooden

Brown.

On appeal from the New Jersey Department of

Law and Public Safety, Division of Consumer

Affairs, State Board of Medical Examiners.

Joseph M. Gorrell argued the cause for

appellant Steven C. Brigham (Brach Eichler,

LLC, attorneys; Joseph M. Gorrell, of counsel

and on the brief; Richard B. Robins, on the

brief).

Steven N. Flanzman, Senior Deputy Attorney

General, argued the cause for respondent Board

of Medical Examiners (Gurbir S. Grewal,

Attorney General, attorney; Andrea M.

Silkowitz, Assistant Attorney General, of

counsel; Jeri L. Warhaftig, Senior Deputy

Attorney General and Christopher Salloum,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant Steven C. Brigham, M.D. treated patients seeking

to terminate late second and third trimester pregnancies by

initiating dilation and/or fetal demise in New Jersey and later

conducting the abortion procedure in Maryland. He held a New

Jersey license to practice medicine and surgery, but held no

license in Maryland. He alleged he complied with Maryland law by

performing the procedures in consultation with a Maryland-licensed

physician. He challenges the revocation of his New Jersey license

by respondent State Board of Medical Examiners (BME). For the

reasons that follow, we affirm.

I.

Brigham's Background

Brigham received a medical degree in 1986. His main training

for performing abortions occurred in medical school during a "short

preceptorship" with a physician for obstetrics and gynecology

(ob/gyn), during which he observed and conducted a few first

trimester abortion procedures. After graduation, he served a one-

year internship, which included several weeks in an emergency

room. He then worked in various hospital emergency rooms until

accepting a position in a practice specializing in gynecology.

In 1992, Brigham opened his own medical practice in Voorhees.

Over the years, he conducted his practice at several offices in

2 A-1944-14T1

Mount Laurel and Voorhees, including American Women's Services,

American Medical Services, American Wellness Center, American

Women's Center, American Medical Associates, American HealthCare

Services, Grace Medical Care, and Grace Medical Services. None

of these facilities was a licensed hospital or New Jersey licensed

ambulatory care facility (LACF).

During the course of his career, Brigham held licenses to

practice medicine in Florida, New Jersey, New York, and

Pennsylvania. He never held a license to practice medicine in

Maryland or had hospital privileges in New Jersey or privileges

to practice in any LACF, and was not board certified in ob/gyn.

The TOP Rule

N.J.A.C. 13:35-4.2, the termination of pregnancy rule (the

TOP rule) "is intended to regulate the quality of medical care

offered by licensed physicians for the protection of the public."

N.J.A.C. 13:35-4.2(a). During the time period in question here,

September 2009 through August 2010, the TOP rule provided that

"[t]he termination of a pregnancy at any stage of gestation is a

procedure, which may be performed only by a physician licensed to

practice medicine and surgery in the State of New Jersey."

N.J.A.C. 13:35-4.2(b).

In June 2011, the Legislature amended N.J.A.C. 13:35-4.2(b),

which was after the events at issue here, but before the

3 A-1944-14T1

Administrative Law Judge's (ALJ) initial decision and the BME's

final decision in this matter. See 43 N.J.R. 1359(b) (June 6,

2011) (adoption); 42 N.J.R. 1310(a) (July 6, 2010) (proposal).

The amendment "clarif[ied] that the [TOP] rule does not apply to

the provision of a medication to a patient designed to terminate

a pregnancy." 42 N.J.R. 1310(a), at 1311. Thus, after June 6,

2011, N.J.A.C. 13:35-4.2(b) provided:

The termination of a pregnancy at any

stage of gestation is a procedure, which may

be performed only by a physician licensed to

practice medicine and surgery in the State of

New Jersey. "Procedure" within the meaning

of this subsection does not include the

issuing of a prescription and/or the

dispensing of a pharmaceutical.

[43 N.J.R. 1359(b), at 1364.]

The remaining subsections of the TOP rule establish the

criteria for eligibility to perform abortions and where they can

be performed. These subsections separated the stages of pregnancy

in terms of weeks from the start of the woman's last menstrual

period (LMP), i.e., post conception. N.J.A.C. 13:35-4.2(c). For

example, twelve weeks' gestational size, or roughly the first

trimester, was the equivalent of fourteen weeks LMP. Ibid. The

TOP rule has no requirements for terminating pregnancies before

fourteen weeks LMP.

4 A-1944-14T1

Generally, in New Jersey, the second trimester was beyond

fourteen weeks LMP to twenty-eight weeks LMP, and the third

trimester was beyond twenty-eight weeks LMP to delivery. "Late"

second trimester meant beyond twenty weeks LMP until the third

trimester. But see Stenberg v. Carhart, 530 U.S. 914, 923-25

(2000) (stating second trimester runs from twelve through twenty-

four weeks); Planned Parenthood of Ctr. N.J. v. Farmer, 165 N.J.

609, 634 (2000) (stating second trimester is beyond fourteen to

twenty weeks LMP).

As a pregnancy progressed, N.J.A.C. 13:35-4.2(d) to (g)

dictated increasingly stringent conditions for abortions. Beyond

fourteen weeks LMP, abortions had to be performed only in a

licensed health-care facility. N.J.A.C. 13:35-4.2(d). Within

that category, "any termination procedure other than dilatation

and evacuation (D & E) shall be performed only in a licensed

hospital." Ibid. By contrast, "a D & E procedure" could be

performed by a physician in a licensed hospital or in an out-

patient LACF authorized to perform surgical procedures beyond

fourteen weeks LMP but only through eighteen weeks LMP. N.J.A.C.

13:35-4.2(e).

Beyond eighteen weeks LMP through twenty weeks LMP, the

physician planning to perform the D & E procedure in a LACF

authorized for surgical procedures also had to have admitting and

5 A-1944-14T1

surgical privileges at a nearby hospital, which was accessible

within twenty minutes driving time, and which had an operating

room, blood bank, and intensive care unit. N.J.A.C. 13:35-

4.2(f)(2) and (3). The physician had to first file documentation

with the BME, signed by the LACF's medical director, that he or

she was certified or eligible for certification by the American

Board of Obstetrics-Gynecology or the American Osteopathic Board

of Obstetrics-Gynecology. N.J.A.C. 13:35-4.2(f)(1). The

physician also had to cooperate with the medical director to

maintain statistical records showing the number of patients who:

(1) "received termination procedures"; (2) "received laminaria or

osmotic cervical dilators [and] failed to return for completion

of the procedure"; (3) "reported for postoperative visits"; (4)

"who needed repeat procedures"; (5) "received transfusions"; (6)

who had a suspected perforation; (7) "developed pelvic

inflammatory disease within two weeks"; (8) "were admitted to a

hospital within two weeks"; and (9) "died within [thirty] days."

N.J.A.C. 13:35-4.2(f)(7). In addition, the LACF had to have a

credentials committee and a written agreement with an ambulance

service, insuring immediate transportation of patients when

necessary. N.J.A.C. 13:35-4.2(f)(3) and (4).

After twenty weeks LMP, the physician "may request"

permission from the BME "to perform D & E procedures in an LACF,"

6 A-1944-14T1

and must provide "proof, to the satisfaction of the [BME], of

superior training and experience as well as proof of support staff

and facilities adequate to accommodate the increased risk to the

patient of such procedure." N.J.A.C. 13:35-4.2(g).

Medical Terminology: Laminaria,

Misoprostol and Digoxin

Laminaria are a natural product, which have the property of

swelling over time after insertion inside a woman's cervix to aid

dilation for gynecological procedures. They were developed as an

alternative to mechanical devices that could lacerate the cervix.

Laminaria have been used as a cervical dilator in the United States

for at least twenty years. As an expert explained:

Laminaria are a type of dilating device with

the property of becoming swollen by being

exposed to fluids over time. So if you put a

Laminaria device, which is a naturally-

occurring product, sometimes derived from

seaweed, other times from the dogwood tree,

and other naturally-occurring substances, if

you put that stick into a glass of water or

any fluid, over time it will swell up. So

when you put it in the cervix, the opening

into the woman's uterus, the natural

secretions of the cervix will cause the

dilating device to swell over time. And in

about six hours or so, it assumes about

[seventy] to [eighty] percent of its eventual

maximum dilation.

Misoprostol, also known as Cytotec, is a powerful medication

administered for cervical preparation. It causes the cervix to

soften. In late second and third trimester abortions, (beyond

7 A-1944-14T1

sixteen to eighteen weeks LMP), Misoprostol is used to accomplish

cervical softening, typically in conjunction with Laminaria used

for dilation. As an expert explained:

Misoprostol is a prostaglandin which is

a family of chemicals that has the property

of stimulating uterine contractions, and in

so doing, helping the uterus to expel any

pregnancy content. It also has the property

of causing the uterus to increase its tone,

which can be effective in preventing

hemorrhage or reducing blood loss after

pregnancy has ended. And it also can soften

and dilate the cervix, which means it has uses

outside of pregnancy[.] [I]t has multiple

uses in the field of obstetrics and gynecology

and in other fields.

Misoprostol is a known toxic agent to the fetus, i.e.,

potentially harmful to the fetus should the patient reverse her

decision to abort. Sometimes after receiving Misoprostol, the

patient will spontaneously abort.

Digoxin is a drug administered to an in utero fetus by

injection and results in irreversible intra-uterine fetal demise

(IUFD). An expert explained that the act of causing fetal demise

"will cause a process that will irreversibly result in labor and

delivery over time if it [is not] facilitated by a medical

practitioner."

8 A-1944-14T1

Brigham's Prior New Jersey

Disciplinary Action (Brigham I)

In 1993, the BME filed a complaint against Brigham, seeking

to suspend or revoke his New Jersey license. In re Suspension or

Revocation of License of Brigham, 96 N.J.A.R.2d (BDS) 35 (N.J.

Adm. 1996) (Brigham I). The complaint alleged, in part, that

Brigham's insertion of laminaria in patients who were beyond

fourteen weeks LMP "constitute[d] the commencement of an abortion

in the second trimester." This treatment allegedly violated the

TOP rule because Brigham was not legally qualified to perform

abortions, as he held no privileges in any hospital, had no formal

ob/gyn training, and was not Board-eligible or Board-certified in

any specialty.

Specifically, the complaint alleged that patient J.K. was

over twenty-three weeks LMP and carrying a demised fetus when

Brigham inserted Laminaria into her cervix in New Jersey. He

again inserted Laminaria the next day, intending to transport J.K.

to New York the following day for the abortion procedure. At that

time, he was licensed to practice medicine in New York. However,

J.K. was admitted to a New Jersey hospital with complications on

the evening after the second Laminaria insertion, and Brigham was

not directly involved in the rest of her treatment. The complaint

further alleged that patient B.A. was beyond fourteen weeks LMP.

9 A-1944-14T1

Brigham inserted Laminaria in New Jersey and completed the rest

of his treatment in New York.

The BME adopted the ALJ's findings of fact and conclusions

of law that Brigham did not violate the TOP rule by commencing a

termination of pregnancy beyond fourteen weeks LMP using

Laminaria. The ALJ noted the TOP rule was silent about the

insertion of Laminaria for purposes of dilating the cervix

preparatory to the removal of the fetus and the placenta. The ALJ

concluded:

It is clear that insertion of [L]aminaria

does not terminate a pregnancy. It is

likewise clear that it is a necessary step in

achieving adequate cervical dilation so that

evacuation of the uterus can be accomplished

safely. The [BME] is of course free to

interpret the scope of its rule on the

termination of pregnancy, in accordance with

reason, fairness, and adequate notice to those

who are regulated. It would be well if the

rule specifically addressed the use of

[L]aminaria, as I am convinced that Dr.

Brigham would not have utilized the procedure

in New Jersey for patients beyond the

[fourteenth] week of pregnancy if the rule

expressly defined [L]aminaria insertion as a

termination procedure.

Accordingly, the BME penalized Brigham only for using certain

misleading terms in his advertising, not for violating the TOP

rule. The BME made no other comment regarding the applicability

of the TOP rule.

10 A-1944-14T1

The Phillips Letters

By 1996, the governing medical boards in Florida and New York

revoked Brigham's licenses to practice medicine in those states.

By January 1999, he was sending his patients to Pennsylvania to

complete their second and third trimester abortions, even though

he voluntarily retired his Pennsylvania medical license in 1992.

In January 1999, subsequent to Brigham I, Stuart Phillips,

Esq., wrote to the BME regarding "Laminaria insertion in the

office." Without identifying Brigham as his client, Phillips

requested an advisory opinion regarding the TOP rule. He presented

a scenario involving a second trimester abortion performed by a

D & E procedure, and said that Laminaria insertion to dilate the

cervix would be performed in a doctor's office and then one or two

days later the evacuation surgery would be performed either in a

hospital or a licensed/approved facility.

Phillips asked whether the treatment protocol he described

would violate the TOP rule and suggested that Brigham I held

insertion of Laminaria in an office setting was not a violation.

However, he did not explain that the evacuation surgery would be

performed in an out-of-state facility, and did not seek guidance

on any other methods of cervical preparation prefatory to an

evacuation surgery, such as administering Misoprostol or Digoxin.

11 A-1944-14T1

The BME advised Phillips that it shared his view of the

applicability of the TOP rule, and advised "there would appear to

be no problem with regard to the insertion of [L]aminaria prefatory

to a termination of pregnancy whether in an office setting or a

licensed ambulatory care facility."

Brigham's Patients and Treatment Protocol

From September 2009 through August 2010, Brigham induced

dilation and/or fetal demise in approximately 241 patients in his

New Jersey offices. He then performed the evacuation surgeries

in his office in Elkton, Maryland, which Brigham and his staff

called "the surgical center."

All of the 241 patients sought to terminate pregnancies after

fourteen weeks LMP, and all were first treated by Brigham in his

New Jersey offices. Patients who were between fourteen weeks LMP

but less than twenty-four weeks LMP were designated on their

medical records as "American Woman Services" or "AWS" patients.

Forty-three patients who were at least twenty-four weeks LMP or

greater were designated on their medical records as "Grace"

patients.

Brigham's treatment protocol for each type of patient was

different, but all patients were treated first with some

combination of Laminaria, Misoprostol, and/or Digoxin. For an AWS

patient, treatment was a two-day procedure. Brigham's staff would

12 A-1944-14T1

examine the patient in his Voorhees office, perform an ultrasound,

collect lab work, and have the patient sign various consent forms.

Brigham would then examine the patient, answer any questions,

insert Laminaria, and send the patient home after telling her the

evacuation surgery would be performed the next day in a surgical

facility located about an hour away. The next day, the patient

would return to the Voorhees office and receive another Laminaria

insertion and sometimes Misoprostol. That same day, the patient

would travel by car to the Elkton office and undergo an evacuation

surgery performed by Brigham or, after July 30, 2010, by Nicola

Riley, M.D., a Maryland licensed physician employed by Brigham.

For a Grace patient, who was typically in the late second or

third trimester (twenty-four weeks LMP or later), treatment was a

three-day procedure. Brigham's staff would examine the patient

in his Mount Laurel office and perform an ultrasound to confirm

pregnancy. His staff would tell the patient the evacuation surgery

would be performed in another office located about an hour from

Voorhees, have her sign various consent forms, collect payment,

and then tell her to follow a staff member for a twenty-minute

drive to the Voorhees office. That same day, Brigham would meet

the patient at his Voorhees office, describe the surgical

procedure, review the consent forms with the patient, answer any

13 A-1944-14T1

questions, and insert Laminaria and administer Digoxin to cause

fetal demise.

On the second day of treatment, the Grace patient would return

to the Voorhees office and have an ultrasound to confirm fetal

demise. Brigham would insert Laminaria and the patient would

return home. On the third day, the patient would return to the

Voorhees office and then travel by car to the Elkton office, where

she would undergo a surgical evacuation performed by Brigham or,

after July 30, 2010, by Riley.

None of the AWS or Grace patients were given the address of

the Elkton office unless they asked, and most did not. Patients

traveled to that office in their own car, led in a caravan by one

of Brigham's employees, or they could ride in a staff member's

car. Brigham followed in another car, and everyone stayed in

contact by cell phone during the drive. None of the patients were

told that Brigham had no license to practice medicine and surgery

in Maryland. The patients who testified at the administrative

hearing said this would not have mattered to them had they known

before their abortions.

Brigham's Employees

George Shepard, Jr., M.D. was an Obstetrician/Gynecologist

in his mid-80s and held a license to practice medicine in Maryland

until the Maryland State Board of Physicians (Maryland Board)

14 A-1944-14T1

permanently revoked it on November 19, 2010. The Maryland Board

found Shepard practiced medicine with, or aided, Brigham, an

unauthorized person, in the practice of medicine.

In his August 19, 2010 statement to Detective Sergeant Holly

Smith of the Elkton Police Department, Shepard said he had trouble

with his right arm, stopped driving, suffered a stroke, which

limited his ability to use his dominant side, stopped performing

abortions in 2001, and had not seen any patients, medically, since

2001.1 He also said he worked at the Elkton office only two days

a week, was paid monthly, and Brigham hired him two years earlier.

Shepard said his responsibilities at the Elkton office were

"just to make sure that the facility [was] clean, and they treat

the patients well[.]" He said he did not conduct any hiring or

firing or give instructions "to the staff unless . . . they're

just not doing something right," and never instructed the doctors.

He also said that Brigham did not hire him to assist, instruct,

or teach the doctors, and he was at the Elkton office only to make

sure the patients were feeling well when they left.

1

Shepard did not testify at the administrative hearing. His

statement was admitted into evidence.

15 A-1944-14T1

Shepard also said that Brigham performed the evacuation

surgeries at the Elkton office, while Riley observed.2 According

to Shepard, Riley looked over Brigham's shoulder as he was telling

her "what he's doing, and how he would do it or, you know, if

you're going to do anything, don't do this, or don't do that."

Shepard claimed he was "sitting there . . . in the same room, but

. . . not looking over [Brigham's] shoulder" or "get[ting] up and

walk[ing] around and see[ing] what [Brigham was] doing." Shepard

explained that the patient would be covered, so he would not see

or do anything. He was just sitting there waiting to see how long

the procedure would take. He was not concerned that Brigham had

no license to practice medicine in Maryland so long as a Maryland

licensed physician was present.

It is undisputed that Shepard never performed any surgical

evacuations in the Elkton office. Nevertheless, he signed the

patient forms stating that the procedures were performed and the

patients were fine when they left. However, he never saw an

ultrasound or physically touched a patient.

Brigham employed "Dr. F.N.", a physician licensed only in

Bangladesh, as a medical reviewer. In the beginning of her

employment, she worked as a trainee, traveled in the car with

2

Riley was not interviewed by Smith and did not testify at the

hearing. The Maryland Board revoked her medical license as well.

16 A-1944-14T1

Brigham's patients from Voorhees to Elkton, and observed less than

twenty surgical evacuations in the Elkton office. Dr. F.N.

testified that Brigham and Riley performed all of those surgeries,

with Shepard being either in the room or on the speakerphone. Dr.

F.N. saw Shepard only twice in the operating room.

Dr. F.N. testified that when they were on the telephone,

Brigham would tell Shepard about the patient. She sometimes

overheard them conversing about complications, such as amniotic

fluid embolism, uterine rupture and perforation, uterine

perforation, disseminated intravascular coagulation, or post-

procedure hemorrhage. She also testified that at the direction

of someone whom she could not recall, she would write Shepard's

name or "Dr. Walker's" name on the medication logs. However, she

did not remember seeing anyone named Dr. Walker at the Elkton

office and "could not remember her face."

Smith interviewed Kimberly M. Walker, M.D.3 Walker told Smith

that she never performed any evacuation surgeries at the Elkton

office, but was present for fifty surgeries Brigham performed.

Walker did not have a license to practice medicine or surgery in

Maryland when she worked at the Elkton office.

3

Walker did not testify at the hearing.

17 A-1944-14T1

A.H. worked in the Voorhees and Mount Laurel offices before

becoming project manager in the Elkton office for second and third

trimester patients. Prior to her promotion, she conducted patient

intakes and counseling, assisted the doctors, and worked in the

recovery room.

A.H. testified that Shepard introduced himself to patients

at the Elkton office as the "medical director" and reviewed the

patient charts with Brigham prior to each surgery. During the

surgery, Shepard took the patient's pulse, monitored oxygen

saturation and pain levels, sometimes instructed Brigham to give

the patient more anesthesia, and always talked with Brigham about

the surgery while it was ongoing. A.H. also saw Shepard

instructing Brigham about repositioning the fetus through

vaginal/uterine massage.

A.H. testified that Shepard would meet with patients after

the surgery to ensure their pain was being managed. Shepard and

Brigham also would review and sign the patients' charts after each

procedure. Sometimes during a surgery, the staff would take notes

on the vital signs and hand the notes to a doctor for entry in the

chart. According to A.H., only the doctors wrote on the patient

records.

On cross-examination, A.H. testified she was at the Elkton

office approximately forty times between November 2009 and March

18 A-1944-14T1

2010. She stated that Shepard was sometimes on the speakerphone

during the surgeries. She also claimed it was her job to fill in

the doctor's name on the consent forms for the Grace patients, and

it was her error that the forms did not contain the doctor's name.

C.R. worked in the Voorhees office. Her duties included

traveling to Maryland with patients and monitoring them in the

recovery room after their surgeries. She testified that Shepard

introduced himself to patients at the Elkton office as "the medical

director," and talked to Brigham during the surgeries about the

patient and the surgery. She also saw Shepard demonstrating to

Brigham maneuvers to position the fetus, and both of them reviewing

medical records together. She further stated she was responsible

for writing Shepard's name on the recovery room logs, and Shepard

instructed her to write his name since he was the medical director,

and not Brigham's name.

K.G. worked in the Mount Laurel office. She met patients at

the office, gave them consent forms, answered their questions,

explained the entire process, and performed ultrasounds. She

testified that the patient would meet with Brigham, who explained

the process, answered questions, and went over the consent form.

She claimed that during her approximately twenty intakes with

patients, only three patients asked for the address of the surgical

center, which she gave to them.

19 A-1944-14T1

K.G. testified she saw Shepard driving himself from his home

to the Elkton office, and he was physically able to help patients

off the operating room table. She said that Shepard would meet

each patient, make sure the patient was not in too much pain, and

decide the order of the surgeries.

K.J., a foreign medical school graduate trained in emergency

medicine, but not licensed in the United States, worked in the

Elkton office and previously worked in the Voorhees office, where

she conducted patient intakes, explained procedures and consent

forms, and drove patients to the Elkton office. During intakes,

she gave AWS patients the choice of going to an office in either

Pennsylvania or Maryland for their evacuation surgeries, and most

picked Maryland since it was three hours closer. If patients

asked about the Maryland office, she would tell them the facility

was in Elkton, but very few asked about the location.

K.J. testified that prior to accepting a patient in the Elkton

office, Brigham discussed the case over the telephone with Shepard,

and it was Shepard who decided whether to accept the patient for

surgery. Shepard introduced himself to patients at the Elkton

office as the "medical director," decided the order of their

surgeries, and made sure patients were not in pain during the

procedure. Shepard also discussed complications with Brigham and

20 A-1944-14T1

showed him more than one "obstetrical maneuver." K.J. said Shepard

never performed any of the abortions.

K.J. said that Brigham and Shepard had "a form that they used

to sign where it says Dr. Shepard is the Medical Director and they

are engaging in consultation, him and Dr. Brigham . . . and [she]

saw Dr. Shepard signing that form several times." K.J. described

Shepard as mentally intact and initially able to drive himself.

Brigham's Patient Records

Patient D.B. was an AWS patient. She signed Laminaria-

insertion and use-of-Misoprostol consent forms and a preprinted

form entitled "Informed Consent for Abortion after 14 Weeks,"

which was blank where the name of the doctor who would perform the

abortion should have been inserted. Brigham's name did not appear

in her records. Instead, a note from Riley stated she performed

the abortion by herself as "the attending physician." There was

also a completed form entitled, "Second Trimester Non-Surgical

Abortion," but the section for "Delivery Notes" was crossed out,

and a form entitled "Daily Tissue and Regulated Medical Waste

Log," which showed D.B.'s name and Shepard as the doctor.

Complications arose after D.B.'s abortion and Brigham's staff told

her family members who had accompanied her to the Elkton office

to take her to the hospital.

21 A-1944-14T1

Patient V.O. was an AWS patient. She signed a Laminaria-

insertion consent form and a preprinted form entitled "Informed

Consent for Abortion after 14 Weeks," which showed Brigham's name

as the doctor who would perform the abortion. Shepard and Brigham

signed her "Abortion Record." Brigham admitted that approximately

one month after the abortion, he and Shepard signed the forms and

he wrote his name onto the consent form, along with a statement

on the Abortion Record: "Non-viable fetus removed by Dr. Brigham

while engaging in consultation with Dr. Shepard."

Patient S.B. was an AWS patient. She signed Laminaria-

insertion and use-of-Misoprostol consent forms, and an "Informed

Consent for Abortion after 14 Weeks" form, which was blank where

the name of the doctor who would perform the abortion procedure

should have been inserted. She was nineteen weeks LMP, and had

received Laminaria on August 10, 2010. According to the

"Medication [Dispensing] Log," Brigham administered Doxycycline

on August 10, 2010. She had an abortion on August 11, 2010, and

the Elkton Recovery Room Log indicated that Shepard was the doctor.

Patient S.A. was an AWS patient. She signed Laminaria-

insertion and use-of-Misoprostol consent forms, and a preprinted

form entitled "Informed Consent for Abortion after 14 Weeks,"

which was blank where the name of the doctor who would perform the

abortion should have been inserted. Her records also contained a

22 A-1944-14T1

completed form entitled, "Second Trimester Non-Surgical Abortion,"

but the section for "Delivery Notes" was crossed out. She had her

abortion at the Elkton office on August 11, 2010, and the Recovery

Room Log indicated that Shepard was the doctor.

Patient A.C.'s patient records indicated she was an AWS

patient. She signed Laminaria-insertion and use-of-Misoprostol

consent forms, and a preprinted form entitled "Informed Consent

for Abortion after 14 Weeks," which had no name of the doctor

performing the procedure. There was also a completed form

entitled, "Second Trimester Non-Surgical Abortion," but the

section for "Delivery Notes" was crossed out. She had her abortion

at the Elkton office on August 11, 2010, and the Recovery Room Log

indicated that Shepard was the doctor.

Records of many other Grace and AWS patients of Brigham, who

did not testify, were admitted into evidence, along with Recovery

Room Logs from the Elkton office. To summarize, each of the

patient records in evidence contained an "Abortion Record," which

stated: "The patient [ ] did [ ] did not, spontaneously deliver

the fetus and placenta." On each form, the "did" box was checked,

indicating a spontaneous delivery. Almost all of the preprinted

forms entitled "Informed Consent for Abortion after 14 Weeks," did

not include the name of the doctor who would be performing the

abortion procedure. All of the Elkton Recovery Room Logs reflected

23 A-1944-14T1

Shepard as the "doctor" for each of the 241 patients treated there.

The Recovery Room Logs displayed data for each patient, including

stage of pregnancy, fee paid, type of sedation and whether the

patient was a "Grace" patient. Brigham's name did not appear on

the Recovery Room Logs.

Expert Testimony

Edward Steve Lichtenberg, M.D., testified for the BME as an

expert in ob/gyn with a specialty in contraception and family

planning, including the performance of abortions in all

trimesters. He defined "termination of pregnancy," often called

an abortion, as an "induced abortion . . . designed to complete

the emptying of the uterus using only medications, devices or

both." This was distinct from "a spontaneous abortion or

miscarriage." He also distinguished fetal demise from feticide,

which occurred when fetal demise happened "at the hands of a

practitioner or the patient."

Lichtenberg testified that a D&E was "a surgical abortion

performed beyond the first trimester." The steps involved in a

D&E were counseling, consent, cervical preparation, and extraction

of the products of conception. During counseling, a patient would

be informed about the medical facts of her condition as verified

by an ultrasound, assessed by a medical team, and advised of her

24 A-1944-14T1

options, including abortion, adoption, carrying to term, or

further counseling.

Lichtenburg explained that during consent, the patient would

sign a consent form on which she expressed her intent to go forward

with a surgical abortion, and be informed of the name of the

surgeon and the various features and risks of the procedure.

Although some consent forms did not include the individual

surgeon's name, such as when groups of physicians were working

together, "typically a single senior physician is identified on

most consent forms."

Lichtenburg also explained that during cervical preparation,

devices, medications, or other actions would be applied to cause

the cervix to soften and dilate over time. Lichtenberg testified

that "the degree of cervical dilation necessary to safely evacuate

the uterus increases with increasing gestation, and gestation

progresses geometrically, not linearly." He then opined that

Brigham failed to provide his patients seeking second and third

trimester abortions with competent medical care, in part, because

he never told them he was not licensed in Maryland, and this

failure breached the bond of trust between patient and physician.

Lichtenberg testified that Brigham's ineligibility to perform

the evacuation surgery in New Jersey did not alleviate him from

the responsibility of engaging in a relationship of trust with his

25 A-1944-14T1

patients. He further opined that Brigham's plan for patient travel

also deviated from accepted standards of care because the patients

were instructed to follow a line of cars without knowing their

ultimate destination.

Lichtenberg also opined that Brigham's patient records

deviated from accepted standards, including the requirements in

N.J.A.C. 13:35-6.5. He explained that the consent forms Brigham's

patients signed insufficiently warned of serious consequences,

often did not contain the name of the designated surgeon, and

contained inconsistent information that the patient would be

receiving both a medical (non-surgical) and a surgical abortion.

He concluded Brigham never contemplated that any of his patients

would undergo a medical abortion. Further, each patient's Abortion

Record reflected a spontaneous abortion when, by definition, a

spontaneous abortion occurred without physician assistance in the

delivery of the fetus and placenta.

Lichtenberg opined that Brigham's patient records, in their

aggregate, demonstrated "serious deviations" from accepted

standards of care, and these "serious deviations" made it difficult

to know whether there were defects in any step of the termination

of pregnancy. He stated that "when there are blanks in the chart,

when notations are absent, it's hard to know exactly what went

on." He noted there was "no reasonable explanation" why data

26 A-1944-14T1

would be missing from patient records, since records should be

filled out "at the time of the operation."

Lichtenberg opined that Brigham's conduct was a gross

deviation from the standard of care, since he performed second and

third trimester abortions outside a LACF or hospital. He explained

that the increased risks encountered as a pregnancy advanced

resulted in the need for facilities of "higher quality with more

equipment and more resuscitative measures and higher quality staff

to handle possible complications."

M. Natalie McSherry, a Maryland lawyer, testified for Brigham

as an expert in general health care law, particularly regarding

the practicing, licensing, and disciplining of medical

professionals in Maryland. She explained that Maryland had a

statutory exception to its licensure requirements, which permitted

out-of-state physicians to practice in Maryland if they were

engaging in "consultation" with a Maryland-licensed physician.

However, she found no authority interpreting that exception.

Rather, she relied on her experience interacting with physicians

to conclude that "consultation" meant "a couple of health care

providers talking to each other about the care of a patient."

Thus, she opined that Brigham was engaging in "consultation" with

Shepard and therefore permitted to perform abortions in Maryland.

27 A-1944-14T1

McSherry also refuted the testimony of Christine Farrelly, a

fact witness for the BME. Before becoming the Acting Executive

Director of the Maryland Board, Farrelly worked as a compliance

analyst investigating complaints about Brigham's treatment of

patients in Maryland. Testifying about Maryland's law, Farrelly

stated the Maryland Board had a form posted on its website since

2003 that had to be submitted for approval when an out-of-state

physician sought to practice medicine in Maryland under the

licensure requirement exception. McSherry testified, however,

that she was unaware of this form, despite her involvement in many

healthcare cases before the Maryland Board, and said there was no

rule, regulation, or order requiring submission of the form.

Gregg P. Lobel, M.D., testified for Brigham as an expert in

anesthesiology. He opined that Brigham's use of Midazolam, an

anti-anxiety medication, would cause the patients, even without

any other drugs, to experience amnesia and likely not remember

what happened during their surgeries. He testified he could not

discern from the patient records whether D.B. had received more

medication than had been documented before she had a complication

requiring emergency hospital treatment after her surgery.

Gary Mucciolo, M.D., testified for Brigham as an expert in

ob/gyn and pregnancy terminations. He opined that an abortion or

termination of pregnancy meant the procedure of evacuation or

28 A-1944-14T1

"surgical intervention" for "emptying of the uterus of pregnancy

contents[;]" an abortion did not constitute administering

Laminaria or Misoprostol, or inducing fetal demise. He explained

that the accepted general standard of care allowed a physician to

send the patient home after receiving prefatory steps on one or

two days, and perform the surgical evacuation on the following

day.

On cross-examination, Mucciolo agreed with Lichtenberg's

explanation that the risks increased as pregnancy advanced, but

opined a second trimester abortion, like a first trimester

abortion, was a "minor" surgery. However, he admitted that he

referred his patients requiring IUFD, like Brigham's Grace

patients, to a perinatologist to perform the injections, and then

had their abortions performed in a hospital where he held

privileges.

Mucciolo opined that Brigham's consent forms and patient

records met the general standard of care because they gave patients

"a clear understanding" of the procedures that would be performed.

However, he admitted that Brigham's use of "spontaneous" in the

Abortion Records was a "little confusing." Nevertheless, he still

believed he could get a clear understanding of the procedures

Brigham performed from the records.

29 A-1944-14T1

Brigham's Testimony

Brigham testified that he opened offices in Maryland to avoid

anti-abortion protestors and because women in New Jersey who were

pregnant past twenty-four weeks could not terminate their

pregnancies any closer than Colorado. He did not tell his patients

about his Elkton office because he wanted to keep the address

confidential to avoid problems with protestors. He did not

establish the Elkton office until he consulted legal counsel

concerning Maryland's laws for unlicensed physicians and,

consequently, signed a "Consultation Engagement Agreement" with

Shepard in September 2009. The agreement stated, in part:

WHEREAS, Dr. Shepard desires that Dr. Brigham

engage in consultation with him regarding the

care and treatment of patients, and

WHEREAS, provided that it comports with

Maryland law, Dr. Brigham is willing to

consent to Dr. Shepard's request that Dr.

Brigham start engaging in consultation with

him,

NOW, THEREFORE, it is hereby AGREED:

1. Dr. Shepard hereby requests that Dr.

Brigham enter into this Engagement in

which Dr. Brigham agrees that he shall

be engaging in consultation with Dr.

Shepard regarding the care and treatment

of patients.

. . . .

3. During the Term of this engagement,

Dr. Brigham shall at all times remain

30 A-1944-14T1

engaging in consultation with Dr.

Shepard, as provided herein.

Brigham described his interaction with his patients, i.e.,

counseling, examinations, and review of the records and consent

forms. He explained that patients beyond twenty-four weeks LMP,

the Grace patients, were non-elective cases and had to present

justifiable reasons to terminate their pregnancies. He claimed

he declined more patients than he accepted, and Shepard

participated in those decisions.

Brigham testified that Shepard was the medical director at

the Elkton office, supervising staff and hiring Riley. Before

that, Shepard had stopped treating patients and was working for

him as the medical and lab director in his Baltimore office.

Shepard's role at the Elkton office was to decide the order of the

surgeries and monitor patients' vital signs during and after

surgery. Shepard also taught him about significant complications

and obstetrical maneuvers. In return, he taught Shepard about

specific medical procedures so Shepard could oversee the

physicians in his role as medical director.

On cross-examination, Brigham asserted he never performed an

evacuation surgery in the Elkton office when he was not consulting

with Shepard or Riley. He testified that on those "few times"

when Shepard was listening on the telephone, Shepard would speak

31 A-1944-14T1

to the staff by speakerphone and would listen for the pulse

oximeter. Brigham insisted that, even on the telephone, Shepard

could give him advice and consultation. However, he admitted that

if there was a problem, Shepard would not have been able to step

in and render emergency care or assistance. Even so, he stated

he had "a lot of emergency medicine background," and there were

other physicians who were present and could have assisted, such

as Dr. F.N. and Walker, even though they were not licensed to

practice medicine in Maryland.

Brigham also explained that Shepard would leave the premises

before they could complete the patient records together, so the

records were often incomplete. He claimed the Maryland police

seized most of the patient records before they could be competed.

The following colloquy occurred between Brigham and his attorney

regarding his patient records:

Q. Now, some of the records in this

case do not have a filled out abortion record

as is contained in the [V.O.] case.

You are aware of that, correct?

A. I am.

. . . .

. . . [B]ecause I was not licensed in Maryland

and I was doing these procedures with Dr.

Shepard, I wanted to document it, that Dr.

Shepard was there and that Dr. Shepard - - or,

at least that Dr. Shepard was engaging in

32 A-1944-14T1

consultation, and I wanted to create a

documentary record.

. . . .

I wanted to have Dr. Shepard's signature on

the record to prove that he was, I would say

in [ninety-eight] percent of the time,

[ninety-nine] percent of the time he was

there, and if he wasn't there in person he was

there by telephone, to show that a

consultation did - - that he, himself,

concurred that he was engaging in consultation

with me. So I wanted him to sign it, and I

signed it [V.O.'s patient records].

. . . .

Dr. Shepard always has this issue that he had

to get home to get his kids. . . . [O]ur

typical [mode of operation] was that we would

sit down at the end of the day and sign all

of the documents, but sometimes he had to rush

out and didn't have time to actually do all

the documentation.

. . . .

. . . [W]e had fallen behind on doing our

documentation, and then the police basically

came in and seized them, and that was it.

. . . .

That is my answer. [The patients'

records] are just not complete. They were

seized before we could have a chance to finish

completing them.

Brigham testified that no one was ever lost while traveling

to Maryland, and the caravan kept in touch by cell phone. He also

testified that he spoke to the head of the emergency room at

33 A-1944-14T1

Christiana Hospital in Newark, Delaware, who had verbally agreed

to accept and treat any of his patients, if necessary.

Summary of the ALJ's Initial Decision

and the BME's Final Decision

The ALJ first concluded that Brigham did not violate the TOP

rule by inserting Laminaria or inducing fetal demise in New Jersey.

The ALJ explained the TOP rule applied only when the physician

commenced the surgical process to evacuate the uterus in a D&E

procedure, and did not regulate the entire process beginning with

consultation and counseling and proceeding through prefatory steps

to the surgery, including dilation and/or initiation of fetal

demise. Thus, because Brigham had not performed any surgical

evacuations in New Jersey, the ALJ recommended dismissal of the

charge that his treatment violated the TOP rule.

The ALJ concluded Brigham's patient records provided

sufficient information concerning the recorded surgical

procedures, and Brigham's consent forms were sufficiently

comprehensive. Thus, the ALJ recommended the BME find that any

alleged violations of the professional standards of care to

maintain proper patient records were "relatively minor."

However, the ALJ concluded that Brigham was not authorized

under Maryland law to practice medicine there. The ALJ found

Brigham had knowingly obtained Shepard's cooperation only for

34 A-1944-14T1

legal reasons and not for the medical consultation that would have

allowed Brigham to practice in Maryland. Citing to Brigham's past

conduct, specifically, the disciplinary actions by the medical

boards in New York, Pennsylvania, and Florida, and a New York

conviction for failing to file income taxes, and to his

"willingness to play fast and loose with the law in Maryland[,]"

the ALJ concluded Brigham "has finally cut enough corners." The

ALJ therefore recommended the BME find Brigham had committed a

"major violation of professional standards" by engaging in the

unlicensed practice of medicine in Maryland, and revoke his license

for "knowingly effectuat[ing]" a scheme to engage in the unlicensed

practice of medicine and surgery.

The BME rejected the ALJ's conclusion on the applicability

of the TOP rule, and held that Brigham commenced pregnancy

terminations in New Jersey and violated the TOP each time he

performed any prefatory act in his New Jersey office for a patient

whose treatment was ultimately completed in Maryland. However,

relying on Brigham I and the Phillips letters, the BME found

Brigham could have reasonably believed his conduct was not subject

to the TOP rule when he treated patients with Laminaria and/or

Misoprostol in New Jersey. Consequently, for penalty purposes

only, the BME found Brigham violated the TOP rule in forty-three

Grace cases when he administered Digoxin to effect fetal demise

35 A-1944-14T1

in New Jersey prior to conducting the surgical evacuation in

Maryland.

The BME adopted the ALJ's finding that Brigham's arrangement

with Shepard was a deliberate sham and his conduct constituted the

unlicensed practice of medicine in Maryland. Accordingly, the BME

held that Brigham's unlicensed practice of medicine in Maryland

substantiated the charges that he had engaged in acts constituting

a crime or offense relating adversely to the practice of medicine,

and provided the basis for disciplinary sanction and revocation

of his license.

The BME also adopted the ALJ's finding that Brigham's patient

records failed to conform to regulatory recordkeeping

requirements. Although the BME agreed with the ALJ's

characterization that these violations, in any individual case,

were "minor," it held Brigham's "repeated and consistent"

recordkeeping violations were "substantial" and "serious." The

BME also held "the record of this case support[ed] the remainder

of charges" that Brigham's conduct constituted: gross and/or

repeated acts of negligence, the use or employment of dishonesty,

deception, and/or misrepresentation, and professional misconduct.

As to penalty, the BME concurred with the ALJ's recommendation

to revoke Brigham's license, but found the scope of Brigham's

36 A-1944-14T1

violations of law was far more expansive and the extent of his

misconduct far more pervasive than the ALJ's conclusions.

The BME held that Brigham committed multiple statutory

violations when treating not less than 241 patients, which included

forty-three Grace patients. Specifically, only as to his Grace

patients, the BME found Brigham violated N.J.S.A. 45:1-21(h) by

"perform[ing] termination of pregnancy procedures in New Jersey

in violation of [the TOP rule]." For all of his patients, the BME

found Brigham violated: (1) N.J.S.A. 45:1-21(b) for "two

independent bases" of dishonesty, deception, misrepresentation,

false promise or false pretense for failing to inform patients of

salient facts and for consistent deceptive recordkeeping

practices, which the BME merged for penalty purposes; (2) N.J.S.A.

45:1-21(c) by engaging in acts constituting gross negligence; (3)

N.J.S.A. 45:1-21(e) by engaging in acts of professional

malpractice; (4) N.J.S.A. 45:1-21(f) by engaging in acts

constituting "the unlicensed practice of medicine in Maryland[;]"

and (5) N.J.S.A. 45:1-21(h) by failing "to maintain patient records

consistent with the requirements of N.J.A.C. 13:35-6.5[.]" Thus,

the BME "unanimously conclude[d] that no action short of revocation

of licensure could adequately redress the violations of law found

or adequately protect the public interest." The BMA also imposed

monetary penalties. This appeal followed.

37 A-1944-14T1

II.

Our review of a final administrative decision is limited. In

re Stallworth, 208 N.J. 182, 194 (2011). We "afford a 'strong

presumption of reasonableness' to an administrative agency's

exercise of its statutorily delegated responsibilities." Lavezzi

v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat.

Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)).

Thus, "[w]ithout a 'clear showing' that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in the

record, an administrative agency's final quasi-judicial decision

should be sustained, regardless of whether a reviewing court would

have reached a different conclusion in the first instance." Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9

(2009).

Our review of an administrative decision is limited to three

questions: (1) whether the decision is consistent with the agency's

governing law and policy; (2) whether the decision is supported

by substantial evidence in the record; and (3) whether, in applying

the law to the facts, the agency reached a decision that could be

viewed as reasonable. Ibid. Implicit in the scope of our review

is a fourth question, whether the agency's decision offends the

State or Federal Constitution. George Harms Const. Co. v. N.J.

38 A-1944-14T1

Tpk. Auth., 137 N.J. 8, 27 (1994). The burden of proof is on the

party challenging the agency's action. Lavezzi, 219 N.J. at 171.

The Legislature has granted the BME "broad authority" under

the Medical Practices Act (MPA), N.J.S.A. 45:9-1 to -27.9, to

regulate the practice of medicine in New Jersey, and "to promulgate

rules and regulations to protect patients and licensees." In re

License Issued to Zahl, 186 N.J. 341, 352 (2006); N.J.S.A. 45:9-1

and -2. "The Board's supervision of the medical field is critical

to the State's fulfillment of its 'paramount obligation to protect

the general health of the public.'" Id. at 353 (quoting In re

Polk, 90 N.J. 550, 565 (1982)). The BME is "the guardian of the

health and well-being of [State] citizens." Polk, 90 N.J. at 566.

Thus, the right of physicians to practice their profession is

subordinate to the government's interest "to assure the health and

welfare of the people of the State through the regulation and

supervision of the licensed medical profession." Id. at 565.

In tandem with the MPA, the BME has the power to discipline

and regulate the license of any physician in New Jersey under the

Uniform Enforcement Act (UEA), N.J.S.A. 45:1-14 to -27. N.J.S.A.

45:1-21; Del Tufo v. J.N., 268 N.J. Super. 291, 296 (App. Div.

1993). The BME may revoke a physician's license under the UEA if

the physician:

39 A-1944-14T1

b. Has engaged in the use or employment of

dishonesty, fraud, deception,

misrepresentation, false promise or false

pretense;

c. Has engaged in gross negligence, gross

malpractice or gross incompetence which

damaged or endangered the life, health,

welfare, safety or property of any person;

d. Has engaged in repeated acts of

negligence, malpractice or incompetence;

e. Has engaged in professional or

occupational misconduct as may be determined

by the board;

f. Has been convicted of, or engaged in acts

constituting, any crime or offense involving

moral turpitude or relating adversely to the

activity regulated by the board. For the

purpose of this subsection a judgment of

conviction or a plea of guilty, non vult, nolo

contendere or any other such disposition of

alleged criminal activity shall be deemed a

conviction;

. . . .

h. Has violated or failed to comply with the

provisions of any act or regulation

administered by the board[.]

[N.J.S.A. 45:1-21.]

"The remedial nature of the UEA suggests its liberal

interpretation." In re Kim, 403 N.J. Super. 378, 386 (App. Div.

2008) (citing N.J.S.A. 45:1-14). Importantly, "the Legislature

did not require a finding of patient harm before authorizing

license revocation[ under] N.J.S.A. 45:1-21[.]" Zahl, 186 N.J.

40 A-1944-14T1

at 355 (finding physician's deceitful and fraudulent conduct

warranted license revocation). These violations, however, must

be proven by a preponderance of the evidence in a medical

disciplinary hearing. Polk, 90 N.J. at 560.

We afford substantial deference to a professional board's

disciplinary action and choice of sanction because of the board's

specific expertise, special knowledge, and statutory obligation

to regulate the licensed profession. Zahl, 186 N.J. at 353. For

statutory disciplinary proceedings, "[t]he issues, the evidence

and the standards are thoroughly understood by the parties

involved. They relate to a profession, a specialty in which the

parties, the witnesses and the members of the tribunals are all

uniquely qualified and share a common expertise." Polk, 90 N.J.

at 567-68. Accordingly, our Supreme Court repeatedly has

admonished that reviewing "courts should take care not to

substitute their own views of whether a particular penalty is

correct for those of the body charged with making that decision."

Stallworth, 208 N.J. at 191 (quoting In re Carter, 191 N.J. 474,

486 (2007)).

Nevertheless, we are "in no way bound by the agency's

interpretation of a statute or its determination of a strictly

legal issue." Ardan v. Bd. of Review, 231 N.J. 589, 604 (2018)

(quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). We

41 A-1944-14T1

consider those issues de novo. L.A. v. Bd. of Educ. of Trenton,

221 N.J. 192, 204 (2015). Moreover, "[w]hen resolution of a legal

question turns on factual issues within the special province of

an administrative agency, those mixed questions of law and fact

are to be resolved based on the agency's fact finding." Campbell

v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001).

Brigham argues the BME's finding that he violated the TOP

rule was incorrect as a matter of law, contrary to Brigham I, and

a violation of his right to adequate notice and due process of

law. He relies on N.J.A.C. 13:35-4.2(b), which stated at the time

of his conduct in question: "The termination of pregnancy at any

stage of gestation is a procedure, which may be performed only by

a physician licensed to practice medicine and surgery in the State

of New Jersey."

Brigham first claims the BME's conclusion he violated that

section is contrary to the plain language of the regulation,

illogical, and strains credulity. He takes no issue with the

BME's concepts that termination of a pregnancy involves a continuum

of care, the focus of which is fetus evacuation from the uterus,

or that this continuum involves a process. Instead, he notes the

TOP rule discusses termination in terms of a "procedure," and not

a continuum of care or a process. Relying on the experts'

testimony, he asserts that inserting Laminaria or administering

42 A-1944-14T1

Misoprostol and Digoxin constitute preparations for the

termination procedure, i.e., dilation and fetal demise, but do not

constitute performance of the surgical evacuation procedure

itself.

Brigham further argues that by finding he violated the TOP

rule, the BME contradicted Brigham I that insertion of Laminaria

was prefatory to performing an evacuation procedure and did not

contravene the TOP rule, and the BME's changes to the TOP rule

should have been made after formal rulemaking without violating

his right to adequate notice and due process of law.

The BME has discretion to define the TOP rule as commencing

with any or all prefatory steps to terminate a pregnancy, and as

applying "to all steps along the continuum which are taken for the

distinct purpose of allowing a physician to safely perform a

termination procedure[.]" The MPA gives the BME "broad authority"

to regulate and supervise the practice of medicine in New Jersey

and to protect patients. Zahl, 186 N.J. at 352-53.

However, the problem here is that Brigham never performed an

evacuation surgery in New Jersey. There is nothing in the BME's

express or implied powers under the MPA or UEA permitting it to

hold a physician directly liable under the TOP rule for not

performing a surgical evacuation in New Jersey that would violate

the regulation if performed here, or hold a physician directly

43 A-1944-14T1

liable for violating the TOP rule by performing a surgical

evacuation in another state. The BME recognized it could not

"establish standards of medical practice in States outside of New

Jersey." Thus, the BME's discussions about viewing a termination

of pregnancy as a process or a procedure are a red herring, since

the TOP rule governs D & E procedures, that is, dilation and

evacuation. Even if Brigham started the termination procedure in

New Jersey, his surgical evacuations never occurred here.

Furthermore, N.J.A.C. 13:35-4.2(d) states that "[a]fter

[fourteen] weeks LMP, any termination procedure other than . . .

(D & E) shall be performed only in a licensed hospital." The BME,

however, never found that inducing fetal demise terminates a

pregnancy or constitutes a termination procedure. It declined to

distinguish between reversible and irreversible prefatory steps

to a surgical evacuation, instead finding that use of Laminaria,

Misoprostol, and/or Digoxin were all prefatory acts to that

procedure.

Because Brigham did not perform the surgical evacuations in

New Jersey, the BME could not find Brigham violated the TOP rule.

Accordingly, the BME's revocation of Brigham's license for

violating the TOP rule was arbitrary, capricious, and

unreasonable, as it was not based on sufficient credible evidence

he performed the surgical evacuations in New Jersey. The BME

44 A-1944-14T1

decision also contravened the plain language of the regulation,

and went beyond its implied and express powers by trying to impose

the TOP rule's reach into another state.

Having reached this conclusion, we decline to address

Brigham's additional argument, raised for the first time on appeal,

that the TOP rule is unconstitutional.

III.

Brigham contends the BME erred in denying his motion to

dismiss the TOP rule violation and gross negligence claims as

barred by the doctrine of collateral estoppel. We disagree.

The doctrine of collateral estoppel "bars relitigation of any

issue which was actually determined in a prior action, generally

between the same parties, involving a different claim or cause of

action." In re Liquidation of Integrity Ins. Co., 214 N.J. 51,

66 (2013) (quoting Div. of Youth & Family Servs. v. R.D., 207 N.J.

88, 114 (2011)). This doctrine also applies in administrative

settings. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.

104, 107 (1991).

For collateral estoppel to apply:

the party asserting the bar must show that:

(1) the issue to be precluded is identical to

the issue decided in the prior proceeding; (2)

the issue was actually litigated in the prior

proceeding; (3) the court [or agency] in the

prior proceeding issued a final judgment on

the merits; (4) the determination of the issue

45 A-1944-14T1

was essential to the prior judgment; and (5)

the party against whom the doctrine is

asserted was a party to or in privity with a

party to the earlier proceeding.

[In re Estate of Dawson, 136 N.J. 1, 20 (1994)

(citations omitted).]

"It is equally clear that '[e]ven where these requirements are

met, the doctrine, which has its roots in equity, will not be

applied when it is unfair to do so.'" Olivieri v. Y.M.F. Carpet,

Inc., 186 N.J. 511, 521-22 (2006) (alteration in original) (quoting

Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

Our Supreme Court has identified "a variety of fairness

factors" favoring application of collateral estoppel, including:

"conservation of judicial resources; avoidance of repetitious

litigation; and prevention of waste, harassment, uncertainty and

inconsistency." Allen v. V & A Bros., Inc., 208 N.J. 114, 138

(2011) (quoting Olivieri, 186 N.J. at 523). In contrast, the

fairness factors weighing against application of collateral

estoppel include consideration of whether:

the party against whom preclusion is sought

could not have obtained review of the prior

judgment; the quality or extent of the

procedures in the two actions is different;

it was not foreseeable at the time of the prior

action that the issue would arise in

subsequent litigation; and the precluded party

did not have an adequate opportunity to obtain

a full and fair adjudication in the prior

action.

46 A-1944-14T1

[Ibid. (quoting Olivieri, 186 N.J. at 523).]

Also weighing against preclusion is "a concern that 'treating the

issue as conclusively determined may complicate determination of

issues in the subsequent action[.]'" Ibid. (quoting Restatement

(Second) of Judgments § 29 (Am. Law Inst. 1982)). Indeed,

collateral estoppel will not be applied "where, after the rendition

of the judgment, events or conditions arise which create a new

legal situation or alter the rights of the parties." Kozlowski

v. Smith, 193 N.J. Super. 672, 675 (App. Div. 1984) (quoting

Washington Twp. v. Gould, 39 N.J. 527, 533 (1963)). Another

example is when "new evidence has become available that could

likely lead to a different result." Barker v. Brinegar, 346 N.J.

Super. 558, 567 (App. Div. 2002).

Thus, "[t]he relevant focus 'must center on whether the

conditions precedent to the application of the collateral estoppel

doctrine have been satisfied and, if so, whether the application

of the doctrine is equitable under the circumstances.'" L.T. v.

F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting R.D., 207

N.J. at 116).

Brigham argued on his motion to dismiss that the legal issues

before the BME were identical to the issues raised in Brigham I,

namely, determining what act constitutes a termination of

pregnancy as governed by the TOP rule. He asserted the BME

47 A-1944-14T1

resolved this issue in Brigham I when it dismissed the disciplinary

violations based on injecting Laminaria in his New Jersey offices

on patients who were past fourteen weeks LMP, and then performing

their evacuation surgeries in New York. He maintained the

Phillips' letters reinforced the BME's policy that his treatment

plan did not violate the TOP rule. Thus, he argued that collateral

estoppel barred those claims alleging he violated the TOP rule

when performing any prefatory acts to the evacuation of a fetus

and placenta, including use of Laminaria, Misoprostol, or Digoxin.

The BME denied the motion, finding that collateral estoppel

did not apply because there were "substantial differences" between

the issues presented here and in Brigham I. The BME never reached

the issues in Brigham I of whether Laminaria insertion in a New

Jersey office setting was conduct that commenced the termination

of a pregnancy and therefore triggered the TOP rule, or whether

Brigham was subject to the TOP rule once he inserted Laminaria

into his patients. In fact, it was "not at all clear that the

dismissal [in Brigham I] was based on a conclusion that the

insertion of [L]aminaria was not an act that triggered the

requirements of N.J.A.C. 13:35-4.2."

Second, the BME found differences in the ways that Brigham

treated his patients in the two cases. It explained:

48 A-1944-14T1

[In Brigham I, Brigham] had inserted

[L]aminaria [into patient J.K.] on two

instances in his office, and he had intended

to transport J.K. the following day to a

clinic in New York ("an additional two hour"

trip) to perform a D & E. There was no

allegation made, however, that [Brigham] ever

administered or intended to administer

[M]isoprostol, a cervix softening compound, to

J.K. before embarking on the planned trip to

New York. It is thus the case that the

question whether the administration of

[M]isoprostol was an act that "commenced" an

abortion (or otherwise subjected . . . Brigham

to the requirements of the [BME's] termination

regulation) was never considered, or even

before the [Office of Administrative Law] or

the [BME], in the prior action. Nor was any

consideration given to the question whether

it was negligent or grossly negligent to

administer [M]isoprostol to a patient (who had

previously had [L]aminaria inserted also to

effect cervical softening) and then have that

patient travel over [fifty] miles to an out-

of-state location for the actual performance

of her abortion.

In similar fashion, a crucial issue in

the present application – namely, whether the

administration of [D]igoxin to cause fetal

demise is an act that constitutes the

commencement of a termination procedure,

and/or an act that needs to be performed in a

manner consistent with the requirements of the

[BME's] termination rule – was neither

considered nor decided in the prior case,

because J.K. was not administered [D]igoxin.

It is alleged in three of the five

specifically identified cases now before the

[BME] (S.D., M.L. and J.P.) that . . . Brigham

injected [D]igoxin to kill the patient's fetus

(or fetuses) at the same time that he inserted

[L]aminaria to effect cervical softening.

Whether . . . Brigham thereby engaged in acts

which subjected him to the requirements of the

49 A-1944-14T1

[BME's] termination regulation is a new

question, and clearly was not an issue

resolved in the 1993 action.

Third, the BME found that Brigham I did not consider the

adequacy of the informed consent that Brigham obtained. The BME

noted that in Brigham I, patient J.K. had been "fully aware and

advised who would be performing her procedure and where that

procedure would be perform[ed." However, here, Brigham's patients

were not advised where their procedures would be performed, nor,

in some cases, who would be performing them.

Fourth, there was no allegation in Brigham I that Brigham was

not licensed to perform the D & E procedures in New York, or was

not in full compliance with New York law. He was licensed in New

York when he inserted Laminaria in his patients in New Jersey,

intending to perform the evacuation surgery in New York. In the

present case, however, he was never licensed in Maryland, where

he intended to perform the evacuation surgery.

Finally, the BME rejected any claims that the Phillips letters

supported application of collateral estoppel to dismiss the

present charges. It explained:

The letter[s] clearly do[] not address any

practice other than insertion of [L]aminaria

in an office setting – indeed, Mr. Phillips

expressly stated that his [unnamed] client was

looking for an opinion "only as to that

procedure." . . . Brigham's suggestion that

the letter[s] should be read to somehow

50 A-1944-14T1

endorse other actions performed in an office

setting that may be "prefatory" to an

abortion, such as the injection of [D]igoxin

or administration of [M]isoprostol, is not

only strained, but also directly contrary to

text in his attorney's letter. Mr. Phillips

was thus careful to point out that the

insertion of [L]aminaria affected only the

cervix, was a reversible procedure, and "did

not kill the fetus" or evacuate the uterus.

Digoxin injections prior to a D & E procedure

are done for a completely different purpose –

to kill the fetus. Given that distinction,

we find . . . Brigham's suggestion that the

letter should presently be interpreted to

condone his injections of [D]igoxin in

patients M.L., S.C. and J.P. to be entirely

baseless.

Other significant distinctions need to be

drawn between the facts now before the [BME]

and those posited in Mr. Phillips' letter.

Mr. Phillips clearly, and repeatedly, asserted

in his letter to the [BME] that the D & E

procedure which was to follow the insertion

of [L]aminaria was going to be performed in a

manner completely consistent with the [BME's]

termination regulation and New Jersey law.

Mr. Phillips did not suggest that the D & E

procedure would be performed in another state,

by a physician who would not otherwise be

qualified under the [BME's] regulation to

perform the procedure, or in any setting other

than an approved LACF or hospital. Nor did

Mr. Phillips suggest that the D & E procedure

might be performed by a physician other than

the physician inserting the [L]aminaria, or

that the physician's office was far removed

from the site at which the D&E was to be

performed.

Thus, the BME denied Brigham's motion due to the substantial

differences between the current claims and Brigham I, and the

51 A-1944-14T1

distinctions between Brigham's recent conduct and the conduct

addressed in the Phillips letters

On appeal, Brigham argues the BME should have applied

collateral estoppel to dismiss the TOP violation and gross

negligence claims since he had met all five of the Dawson prongs.

He reiterates that the same issues of what act commenced a

pregnancy termination procedure and whether his conduct and

treatment plan constituted gross negligence were presented in

Brigham I and the present action, and the BME answered the issues

by ruling in Brigham I that insertion of Laminaria in an office

setting did not violate the TOP rule. He reiterates the Phillips

letters reinforced the Brigham I ruling, wherein the BME declared

that a medical treatment plan requiring the patient to travel one

hour out-of-state for an evacuation surgery after Laminaria

insertion in New Jersey was lawful and consistent with generally

accepted standards of medical care.

There is no real dispute that Brigham met the third, fourth,

and fifth Dawson prongs, 136 N.J. at 20. However, he did not meet

the first and second prongs. Under the first prong, the prior

action must have involved substantially similar or identical

issues. Ibid. Some courts have required the issues to be

"precisely the same[.]" In re Liquidation, 214 N.J. at 68. This

prong therefore requires consideration of

52 A-1944-14T1

[1] whether there is substantial overlap of

evidence or argument in the second proceeding;

[2] whether the evidence involves application

of the same rule of law; [3] whether discovery

in the first proceeding could have encompassed

discovery in the second; and [4] whether the

claims asserted in the two actions are closely

related.

[First Union Nat'l Bank v. Penn Salem Marina,

Inc., 190 N.J. 342, 353 (2007).]

Here, even though the BME alleged in both actions that Brigham

violated the TOP rule by commencing pregnancy terminations on

patients after fourteen weeks LMP in his New Jersey office and

then completing the termination out of state, the actual issues

here were not the same or similar as in Brigham I. In Brigham I,

the BME was never faced with deciding whether, and what, prefatory

acts to the D & E procedure triggered compliance with the TOP

rule. There was also no substantial overlap of evidence, since

Brigham's prefatory steps in this case included Laminaria

insertion, along with administration of Misoprostol and/or

Digoxin.

Further, even though the BME had alleged similar claims in

both actions that Brigham's treatment constituted gross

negligence, the actual issues were not the same or similar.

Brigham held a license to practice medicine in New York and could

perform evacuation surgeries there, and the BME in Brigham I was

never faced with deciding whether his treatment plan constituted

53 A-1944-14T1

gross negligence. Consequently, discovery in Brigham I could not

have encompassed the evidence discovered in this case.

Moreover, under the second Dawson prong, an "issue is actually

litigated" if the issue "is properly raised, by the pleadings or

otherwise, and is submitted for determination, and is

determined[.]" Allesandra v. Gross, 187 N.J. Super. 96, 105-06

(App. Div. 1982) (quoting Restatement (Second) of Judgments § 27,

cmt. d (Am. Law Inst. 1982)). By contrast, an issue is not

"actually litigated" when, although it is raised, "no decision

with respect thereto was ever rendered" by the prior tribunal.

Id. at 106-07.

Here, although both actions concerned the TOP rule and the

BME's licensing authority under N.J.S.A. 45:1-21, it was not clear

the BME dismissed the claims in Brigham I based on its conclusion

that Brigham's prefatory act of inserting Laminaria was not a step

that triggered the TOP rule. Since Brigham held a license to

practice medicine in New York, the BME was not faced in Brigham I

with interpreting alleged violations of the TOP rule by a physician

who had no license to perform the ultimate surgical evacuation.

Nor did the BME consider whether it was negligent or grossly

negligent for Brigham to insert Laminaria and/or administer

Misoprostol to a patient who was going to travel to a state where

he could perform her evacuation surgery. Consequently, the similar

54 A-1944-14T1

issues presented in both actions were not actually decided in

Brigham I. As such, because Brigham did not meet the first and

second Dawson prongs, the BME did not err by concluding collateral

estoppel did not bar the TOP rule violation and gross negligence

claims.

In any event, the BME ultimately did not base its decision

on Brigham's treatment of patients only with Laminaria insertion

and/or administration of Misoprostol. In its final decision, the

BME found "Brigham could have reasonably believed, based on the

holdings made in 'Brigham I' and . . . the Phillips letters, that

he would not have been subject to the . . . [TOP rule] in cases

which involved only the insertion of [L]aminaria and/or the

administration of Misoprostol." Consequently, the BME held

Brigham only violated the requirements of the TOP rule each time

he injected Digoxin to effect IUFD in a late term pregnant patient.

Accordingly, we conclude the BME did not err by denying Brigham's

motion, as collateral estoppel did not compel the dismissal of any

claim.

IV.

Brigham contends the BME erred in revoking his license under

N.J.S.A. 45:1-21(f) for engaging in acts constituting the

unlicensed practice of medicine in Maryland. We reject this

contention.

55 A-1944-14T1

The BME may revoke any license to practice medicine and

surgery "upon proof" that the licensee "[h]as . . . engaged in

acts constituting, any crime or offense involving moral turpitude

or relating adversely to the activity regulated by the [BME]."

N.J.S.A. 45:1-21(f). The standard of proof is by a preponderance

of the evidence. Polk, 90 N.J. at 560.

This issue involves the interpretation of Maryland law and

its relation to the facts. An agency's interpretation of a statute

or determination of a strictly legal issue is not entitled to

deference, and we will consider these issues de novo. Ardan, 231

N.J. at 608. Further, "[w]hen resolution of a legal question

turns on factual issues within the special province of an

administrative agency, those mixed questions of law and fact are

to be resolved based on the agency's fact finding." Campbell, 169

N.J. at 588 (citation omitted). Applying those review standards,

we discern no error.

In Maryland, physicians are governed currently by the Medical

Practice Act, found in the Maryland Code Annotated, Heath

Occupation §§ 14-101 to 14-702. Cornfeld v. State Bd. of

Physicians, 921 A.2d 893, 897 (Md. Ct. Spec. App. 2007). The Act

is administered by the Maryland Board, which has both licensing

and disciplinary responsibilities. Ibid.

56 A-1944-14T1

During the period of Brigham's conduct at issue, Maryland

required individuals to be licensed in order to practice medicine

there. Md. Code Ann., Health Occ. § 14-301; 1997 Md. Laws, ch.

201, § 1, at 1924 (Apr. 29, 1997, effective Dec. 31, 1998).

Maryland law defined "practice medicine" as:

(1) "Practice medicine" means to engage, with

or without compensation, in medical:

(i) Diagnosis;

(ii) Healing;

(iii) Treatment; or

(iv) Surgery.

(2) "Practice medicine" includes doing,

undertaking, professing to do, and attempting

any of the following:

(i) Diagnosing, healing, treating,

preventing, prescribing for, or

removing any physical, mental, or

emotional ailment or supposed

ailment of an individual:

. . . .

2. By appliance, test, drug,

operation, or treatment; [and]

(ii) Ending of a human pregnancy[.]

[Md. Code Ann., Health Occ. § 14-101(l); 2007

Md. Laws, ch. 539, § 1, at 3504-05 (May 17,

2007, effective June 1, 2007).]

Maryland law further states: "Except as otherwise provided

in this title, a person may not practice, attempt to practice, or

offer to practice medicine in this State unless licensed by the

57 A-1944-14T1

Board." Md. Code Ann., Health Occ. § 14-601; 2007 Md. Laws, ch.

359, § 1, at 2283 (May 8, 2007, effective Oct. 1, 2007).4 A person

found violating any of those statutes was guilty of a crime and

subject to criminal sanctions and fines, including imprisonment.

Md. Code Ann., Health Occ. § 14-606(a)(4); 2007 Md. Laws, ch. 359,

§ 1, at 2283-84 (May 8, 2007, effective Oct. 1, 2007).5

However, there are certain exceptions to the licensing

requirements. During the period of Brigham's conduct at issue,

the exception statute stated:

(a) Subject to the rules, regulations, and

orders of the Board, the following individuals

may practice medicine without a license:

. . . .

(2) A physician licensed by and residing

in another jurisdiction, while engaging

in consultation with a physician licensed

in this State;

. . . .

4

In 2013, Maryland's General Assembly repealed and reenacted HO

§ 14-601 without change. 2013 Md. Laws, ch. 307, § 1, at 2295,

and ch. 308, § 1, at 2297-98 (May 2, 2013, effective Oct. 1, 2013).

It is the same today. Md. Code Ann., Health Occ. § 14-601 (2014

repl. vol. & 2017 pocket pt.).

5

In 2013, Maryland's General Assembly repealed and reenacted HO

§ 14-606 with amendments not relevant here. 2013 Md. Laws, ch.

307, § 1, at 2296-97, and ch. 308, § 1, at 2298-99 (May 2, 2013,

effective Oct. 1, 2013). Today, violators are still guilty of a

crime. Md. Code Ann., Health Occ. § 14-606 (2014 repl. vol. &

2017 pocket pt.).

58 A-1944-14T1

(5) A physician who resides in and is

authorized to practice medicine by any

state adjoining this State and whose

practice extends into this State, if:

(i) The physician does not

have an office or other

regularly appointed place in

this State to meet patients;

and

(ii) The same privileges are

extended to licensed

physicians of this State by

the adjoining state[.]

[Md. Code Ann., Health Occ. § 14-302(a)

(emphasis added); 1993 Md. Laws, ch. 627, §

2, at 3068 (May 27, 1993, effective July 1,

1993).]

Brigham did not fit into the treating physician exception in

HO § 14-302(a)(4), since New Jersey does not adjoin Maryland and,

more importantly, since he had "an office or other regularly

appointed place in [Maryland] to meet patients." Thus, in order

to practice medicine in Maryland without a license, Brigham had

to meet the consultation exception in HO § 14-302(a)(2).

In May 2013, Maryland's Governor signed "an emergency

measure" adopted by the General Assembly for, among other things,

"the purpose of authorizing certain physicians engaged in certain

consultations to practice medicine without a license from the

State Board of Physicians under certain circumstances," as it was

"necessary for the immediate preservation of the public health or

59 A-1944-14T1

safety[.]" 2013 Md. Laws, ch. 582, § 3, at 5203, and ch. 583,

§ 3, at 5213 (May 16, 2013, effective May 16, 2013).6 Consequently,

before the BME's final decision in this matter, HO § 14-302(a)(2)

was amended to provide:

(a) Subject to the rules, regulations, and

orders of the Board, the following individuals

may practice medicine without a license . . .

:

. . . .

(2) A physician licensed by and

residing in another jurisdiction,

if the physician:

(i) Is engaged in

consultation with a physician

licensed in the State about a

particular patient and does

not direct patient care[.]

[Md. Code Ann., Health Occ. § 14-302(a)

(emphasis added); 2013 Md. Laws, ch. 582, §

2, at 5195, and ch. 583, § 2, at 5206 (May 16,

2013, effective May 16, 2013).]

In its final decision, the BME revoked Brigham's license by

adopting the ALJ's conclusion that his conduct constituted the

unlicensed practice of medicine in Maryland. In so doing, the BME

deferred to the ALJ's "persuasive" and "detailed discussion" of

Maryland's principles of statutory interpretation regarding the

6

Pursuant to the Maryland Constitution, Article II, § 17(d): "If

the Bill is an emergency measure, it shall take effect when

enacted."

60 A-1944-14T1

meaning of the consultation exception as it existed in 2009 and

2010.

The ALJ noted that even though the legal and medical experts

clashed on Maryland's meaning of "consultation," they agreed the

meaning of the term, as used in the statute, had not been the

subject of any decision of the courts of Maryland or the Maryland

Board. Finding no direct precedent, the ALJ used Maryland's

accepted principles of statutory construction and relied on

Connolley v. Collier, 385 A.2d 826, 829-30 (Md. Ct. Spec. App.

1978), aff'd, 400 A.2d 1107 (Md. 1979). In Connolley, the court

recognized that, at times, the meaning of an unclear and ambiguous

statutory word or phrase can be understood by examining subsequent

legislation. Ibid. (citation omitted). Thus, the ALJ found the

2013 amendment of HO § 14-302(a)(2)(i) could "reasonably be seen

as addressing any doubt about whether the sort of activity

[Brigham] was engaged in was within the limited [consultation]

exception . . . and not as a change to existing law." The ALJ

explained:

The amendment can be seen simply as the

Legislature's re-assertion of the primacy of

licensure by Maryland authorities for those

who choose to practice medicine in that State,

which was always implied by the fact that the

"consultation" situation authorized in the

first statute was but an exception and not a

normal avenue for practice in the state.

61 A-1944-14T1

In view of the above, it appears that the

Maryland Court of Appeals, and on the

administrative level, the Maryland Board of

Physicians, would each determine that the

consultation provision allowed only a very

narrow exception to the general licensure

requirement, and that it was always the

intention of the Maryland Legislature to

restrict such practice in line with the

understanding that a Maryland physician and

patients being treated in Maryland would

benefit by the ability of Maryland doctors to

consult about the treatment of their patients

with out-of-state licensees who had some

expertise or at least some special knowledge

that could assist the Maryland doctor in that

physician's care of his or her patient, care

that the Maryland physician directed and was

ultimately responsible for.

The ALJ therefore concluded that Brigham's employment of

Shepard was not a valid consultation relationship within the

meaning of Maryland law, since Brigham "surely did direct patient

care," obtained Shepard's cooperation for legal reasons, and

therefore had engaged in the unlicensed practice of medicine in

Maryland. The BME agreed, further finding that the relationship

between Brigham and Shepard "through the lens of medical

practitioners . . . was anything but an ordinary or typical

consultative relationship." The BME concluded:

Dr. Shepard possessed neither the skill set

nor the experience level which one would

typically expect from a medical consultant.

Ordinarily, a treating physician requests that

a consultant examine his or her patient

because the consultant possesses specialized

62 A-1944-14T1

knowledge and expertise above and beyond that

held by the treating physician. . . .

In this case, . . . Brigham did not need

Dr. Shepard to perform any of the functions a

true medical consultant would be expected to

perform. The record below suggests that Dr.

Shepard had never performed an abortion on a

patient greater than 11 weeks LMP, and that

he last performed an abortion in 2001. While

we recognize that Dr. Shepard, as a Board-

certified OB/GYN, may have had some knowledge

about the general practice of obstetrics and

gynecology different and apart from . . .

Brigham, we reject any suggestion that . . .

Brigham had any need to tap Dr. Shepard's

knowledge base or any need to consult with

him.

. . . [I]t is patently obvious that Dr.

Shepard was not then acting as a consultant.

At best, at times that he was present in

Elkton, Dr. Shepard performed functions that

otherwise could have been performed by a nurse

or qualified medical assistant. When he was

present on the phone alone, he couldn't

perform even those limited functions.

The BME also found the record was devoid of other indicia of

a true consultative relationship between Brigham and Shepard. It

noted there was no evidence that Shepard ever billed independently

for performing a consultation, and no written or typed consultation

report or note by Shepard in any patient record. Instead, the BME

found the record showed Brigham employed and paid Shepard.

The BME also rejected Brigham's claim that Shepard was

consulted on whether to accept patients for surgery. In addition

to finding that such action was not sufficient to qualify any

63 A-1944-14T1

doctor as a medical consultant, the BME found there was no

documentation evincing any decision by Shepard on filtering

patients. The BME determined that Brigham's claims were "entirely

inconsistent with the recorded statement Shepard gave to Smith,

which clearly suggested that Shepard played a far more limited and

inconsequential role." The BME concluded:

It is thus clear to us that, from a medical

perspective alone, there is more than ample

reason to adopt [the ALJ's] ultimate

conclusions that any claimed consultative

relationship was a sham and that . . . Brigham

simply effectuated a scheme to allow him to

practice in Maryland with no illusions that

he had any actual need for medical

consultation with Dr. Shepard.

Finally, the BME gave no weight to the fact that Brigham was

not convicted or criminally charged with the unlicensed practice

of medicine in Maryland. It explained that a New Jersey licensee

could be sanctioned under N.J.S.A. 45:1-21(f) if he or she

"'engage[d] in acts that constituted a crime or offense . . .

relat[ing] adversely to the activity regulated by the [BME]."

Thus, even if Brigham was not convicted or charged with any

offense, he was subject to penalty in New Jersey for having engaged

in the unlicensed practice of medicine in Maryland, since "the

unlicensed practice of medicine in Maryland is in fact punishable

as a crime, and that the crime would be one that relates adversely

to the activity regulated by the [BME]." The BME stated: "[F]rom

64 A-1944-14T1

the viewpoint of practicing physicians," it was "clear that the

relationship between. . . Brigham . . . Shepard could not

reasonably be considered to be a 'consultative' relationship."

The BME also stated:

We further clarify that the finding that

. . . Brigham engaged in the unlicensed

practice of medicine in Maryland substantiates

the charges made within the Administrative

Complaint that . . . Brigham engaged in acts

which would constitute a crime or offense

relating adversely to the practice of

medicine, which in turn provides basis for

disciplinary action in New Jersey pursuant to

[N.J.S.A.] 45:1-21(f).

Brigham argues that the BME erred by ignoring his expert's

testimony as to the meaning of consultation. He claims the BME

improperly inserted a requirement not in the Maryland statute,

that a consulting physician must examine the patient and/or possess

specialized knowledge and expertise beyond that of the consultee

or treating physician.

Citing various Maryland sources and the universal prohibition

against ex post facto laws, Brigham posits there is no support for

the BME to rely on the ALJ's interpretation and therefore apply

the 2013 amendment in HO § 14-302(a)(2)(i) to evaluate his conduct.

He insists the amendment was a complete change in the law, not a

mere clarification, leads to absurd results, and contradicts the

definition of consultation accepted by the experts, as "[o]ne

65 A-1944-14T1

physician providing an opinion or assistance to another

physician[.]" He claims the ALJ and BME misinterpreted the holding

in Connolley, and should have applied Maryland's "rule of lenity,"

which requires a statute's ambiguity to be interpreted in favor

of an individual charged with a violation due to fairness and lack

of notice.

Finally, Brigham argues that even if the BME's definition of

"in consultation with" in HO § 14-302(a)(2) was accurate, the

preponderance of evidence proved his conduct came within that

definition, as amended. He asserts: "The fact that . . . Shepard

had skills that [he] did not and was present to communicate those

skills plainly constitutes consultation." He avers it was

immaterial whether Shepard was present during all of the surgeries,

and his motivation for consulting with Shepard was irrelevant.

Thus, he concludes the BME erred in revoking his license by finding

he had violated N.J.S.A. 45:1-21(f).

In Maryland, as in New Jersey, the paramount goal of statutory

interpretation is to "ascertain and effectuate the intent of the

Legislature." Mayor & Town Council of Oakland v. Mayor & Town

Council of Mountain Lake Park, 896 A.2d 1036, 1045 (Md. 2006). To

discern the Legislature's intent, Maryland courts "look first to

the plain language of the statute, giving it its natural and

ordinary meaning." Breslin v. Powell, 26 A.3d 878, 891 (Md. 2011)

66 A-1944-14T1

(quoting State Dep't of Assessments & Taxation v. Maryland-Nat'l

Capital Park & Planning Comm'n, 702 A.2d 690, 696 (Md. 1997)). In

Breslin, the court stated:

If the language of the statute is clear and

unambiguous, courts will give effect to the

plain meaning of the statute and no further

sleuthing of statutory interpretation is

needed. If the sense of the statute is either

unclear or ambiguous under the plain meaning

magnifying glass, courts will look for other

clues — e.g., the construction of the statute,

the relation of the statute to other laws in

a legislative scheme, the legislative history,

and the general purpose and intent of the

statute.

[Ibid. (citations omitted).]

Here, the plain meaning of the statutory phrase, practicing

medicine "while engaging in consultation with" a licensed Maryland

physician, is ambiguous on the face of the version of HO § 14-

302(a)(2) applicable at the time of Brigham's conduct. Thus, the

BME did not err by looking for other clues.

Before discussing any impact of the 2013 amendment, the

prohibition against ex post facto laws, and a rule of lenity, we

note that the consultation exception to the physician licensing

requirements was part of the original statutory scheme adopted by

Maryland's General Assembly in 1888 to regulate practitioners of

medicine and surgery. 1888 Md. Laws, ch. 429, §§ 1-10, at 697-

700 (Apr. 5, 1888, effective Apr. 5, 1888) (codified as Md. Code

67 A-1944-14T1

of Pub. Gen. Laws, Health, Art. 43 ("Practitioners of Medicine"),

§§ 39-477) (1888 Act). The history of this 130-year-old exception

is a more significant clue in divining the meaning of "in

consultation with" in HO § 14-302(a)(2) and addressing Brigham's

arguments.

The 1888 Act, entitled "an Act to promote the public health

and regulate the practice of medicine in the State of Maryland,"

permitted three classes of persons to practice medicine: those who

had graduated from a medical college; those who had passed an

examination given by the State Board of Health; and those who had

been practicing medicine in Maryland for ten years. 1888 Md.

Laws, ch. 429, § 1-3, at 697-98; Md. Code, Health, Art. 43, §§ 39-

41. See generally Aitchison v. State, 105 A.2d 495, 498 (Md.

1954) (discussing history of the 1888 Act). Anyone not possessing

the required certificate or not already having practiced ten years

was guilty of a crime. 1888 Md. Laws, ch. 429, § 8, at 699; Md.

Code, Health, Art. 43, § 46. However, expressly excepted from the

statutory requirements were "commissioned surgeons in the United

States army, navy or marine hospital service" and "physicians or

7

John Prentiss Poe, The Maryland Code. Public General Laws, Vol.

I, at 791-94 (Baltimore: King Bros., 1888). Originally published

in volume 389 of the Archives of Maryland series in 1888, and

republished in 2001 by the Maryland State Archives. See Archives

of Maryland Online at http://aomol.msa.maryland.

gov/000001/000389/html/index.html (last visited Feb. 1, 2018).

68 A-1944-14T1

surgeons not resident in this state, who may be called in

consultation within this state." 1888 Md. Laws, ch. 429, § 6, at

699; Md. Code, Health, Art. 43, § 44. Thus, the nonresident

physician was considered the consultant.

In 1892, the General Assembly repealed and reenacted those

provisions with additions and amendments. 1892 Md. Laws, ch. 296,

§ 1, at 412-17 (Apr. 2, 1892, effective June 7, 1892) (codified

as Md. Code of Pub. Gen. Laws, Health, Art. 43, §§ 39-528). See

Manger v. Bd. of State Med. Exam'rs, 45 A. 891, 892 (Md. 1900)

(declaring that "the whole scheme devised by the Act of 1888 was

swept away by the Act of 1892"). The language of the consultation

exception to the licensing requirements was amended to exclude

"physicians or surgeons in actual consultation from other States."

1892 Md. Laws, ch. 296, § 1, at 417 (emphasis added); Md. Code,

Health, Art. 43, § 499 (Section 49) (emphasis added).

8

John Prentiss Poe, Supplement to the Code of Public General

Laws of Maryland, Containing the Public General Laws Passed at the

Sessions of the General Assembly of 1890, 1892, 1894, 1896, 1898,

at 330-35 (Baltimore: King Bros., 1898). Originally published

in volume 391 of the Archives of Maryland series in 1898, and

republished in 2001 by the Maryland State Archives. See Archives

of Maryland Online at http://aomol.msa.maryland.

gov/000001/000391/html/index.html.

9

Poe, Supplement, at 335. See 1894 Md. Laws, ch. 217, §§ 1-2,

at 271-75 (Apr. 6, 1894, effective Apr. 6, 1894); 1896 Md. Laws,

ch. 194, §§ 1-2, at 311-14 (Apr. 4, 1896, effective Apr. 4, 1896).

69 A-1944-14T1

In 1894 and 1896, the General Assembly added sections to

Article 43 not relevant here, but did not change the language of

the consultation exception in Section 49. Md. Code, Health, Art.

43, §§ 39-63.10 In Manger, 45 A. at 893, a case concerning whether

the appellant was grandfathered under the new provisions, the

Court of Appeals harmonized both the 1892 and 1894 enactments by

employing "a rule of very general application that statutes should

be read so as to harmonize their various provisions[,] and so as

to give effect to all their parts, if that be possible, rather

than in a way to defeat or nullify any portion of them."

Meanwhile, a defendant who had been prosecuted for unlawfully

practicing medicine in Maryland without being officially

registered challenged the constitutionality of the licensing

exceptions in Section 49 of the 1892 enactment. Scholle v. State,

46 A. 326, 326 (Md. 1900). The Court of Appeals rejected the

defendant's claim, significantly explaining:

Here the purpose of the Acts in question

was the protection of the public from the

consequences of ignorance and incapacity in

the practice of medicine and surgery. As a

means of effecting this[,] they exact from the

persons proposing to engage in the business a

certain degree of skill and learning, to be

evidenced by a certificate upon which the

10

Poe, Supplement, at 330-41. See 1894 Md. Laws, ch. 217, §§ 1-

2, at 271-75 (Apr. 6, 1894, effective Apr. 6, 1894); 1896 Md.

Laws, ch. 194, §§ 1-2, at 311-14 (Apr. 4, 1896, effective Apr. 4,

1896).

70 A-1944-14T1

public may rely. . . . Those to whom the

provisions of the acts do not apply are

commissioned surgeons of the U.S. Army and

Navy, and Marine Hospital; physicians and

surgeons in actual consultation from other

states; and persons temporarily practicing

under the supervision of an actual medical

preceptor.

The reasons for these exemptions from the

operation of the Act are apparent and are

entirely of a public character. The

competency of the first class is assured by

the exactions required of them before they

could become commissioned in the service of

the United States . . . . Nor can any reason

having in view the public protection be

assigned for requiring certificates of the

remaining classes. Neither of these classes

can be said to be practitioners within this

State. The physician from another State, "in

actual consultation," has co-operating with

him a registered physician. To require him

to license as for general practice [] would

have no other effect than occasionally to

deprive the patient and the local physician

of the benefits of the advice of some of the

most eminent and skillful gentlemen in the

profession. Moreover, . . . the public are

fully protected from the incompetency of the

foreign physician . . . by the presence and

supervision and restraints of the certified

physicians of the State. This section

therefore cannot be objected to as in any

respect arbitrary or unreasonable, or as in

any manner creating any unjust discrimination.

[Id. at 327 (emphasis added).]

In 1902, the General Assembly repealed Section 49. 1902 Md.

Laws, ch. 612, §§ 1-2, at 883-91 (Apr. 11, 1902, effective Apr.

11, 1902) (codified as Md. Code of Pub. Gen. Laws, Health, Art.

71 A-1944-14T1

43, §§ 39-65). Nevertheless, it reenacted the consultation

exception in a different section and added, for the first time,

the out-of-state treating physician exception:

[N]othing herein contained shall be construed

to apply . . . to any physician or surgeon

from another State, territory or district in

which he resides when in actual consultation

with a legal practitioner of this State;

. . . nor shall the provisions of this Article

apply to physicians or surgeons residing on

the borders of a neighboring State, and duly

authorized under the laws thereof to practice

medicine or surgery therein, whose practice

extend[s] into the limits of this State;

provided, that such practitioners shall not

open an office or appoint places to meet their

patients or receive calls within the limits

of this State without complying with the

provisions of this Act[.]

[1902 Md. Laws, ch. 612, § 1, at 889-90

(emphasis added); Md. Code, Health, Art. 43,

§ 61 (emphasis added).]

Throughout subsequent repeals, reenactments, amendments,

recodifications, and changes to this article and subtitle, the

1902 language of the consultation exception and the out-of-state

treating physician exception did not change until 1981. Compare

1957 Md. Laws, ch. 29, § 2/138, at 40-41 (Feb. 1, 1957, effective

June 1, 1957); 1963 Md. Laws, ch. 97, § 1/139, at 187-88 (Mar. 14,

1963, effective June 1, 1963); 1967 Md. Laws, ch. 398, § 1/139,

at 966-67 (Apr. 21, 1967, effective June 1, 1967). See Aitchison,

72 A-1944-14T1

105 A.2d at 499-500 (listing statutory exceptions "to the broad

definition of practitioner of medicine").

In 1981, as part of its Code revisions, the General Assembly

repealed "Article 43, Health," and created a new "Health

Occupations" Article by reenacting, revising, amending, and

recodifying the laws relating to, among other occupations,

practitioners of medicine. 1981 Md. Laws, ch. 8, §§ 1-10, at 53-

760 (Mar. 23, 1981, effective July 1, 1981). See Blevins v.

Baltimore Cty., 724 A.2d 22, 32-33 (Md. 1999) ("[T]he principal

function of code revision 'is to reorganize the statutes and state

them in simpler form,' and thus 'changes are presumed to be for

the purpose of clarity rather than for a change in meaning.'")

(quoting Bureau of Mines of Md. v. George's Creek Coal & Land Co.,

321 A.2d 748, 754 (Md. 1974)).

One 1981 change eliminated the word "actual" from the

consultation exception and adopted the language of HO § 14-

302(a)(2), stating: "A physician licensed by and residing in

another jurisdiction, while engaging in consultation with a

physician licensed in this State" may practice medicine without a

license. 1981 Md. Laws, ch. 8, § 2, at 564-65 (emphasis added).

This language was in effect during the period of Brigham's conduct

at issue, and remained in effect until the amendments in 2013,

73 A-1944-14T1

discussed above. 2013 Md. Laws, ch. 582, § 2, at 5195, and ch.

583, § 2, at 5206.

We reject Brigham's argument that the BME erred by ignoring

the expert testimony and inserting a new requirement into

Maryland's statute that a consulting physician must examine the

patient and/or possess specialized knowledge and expertise beyond

that of the consultee or treating physician. In Scholle, 46 A.

at 327, the court explained that the reason for the consultation

exception was to permit Maryland's patients and local physicians

to "benefit [from] the advice of some of the most eminent and

skillful gentlemen in the profession." This presumes that the

consulting physician will examine a patient and possess

specialized knowledge and expertise beyond that of the consultee

or treating physician.

In addition, we decline to discuss ex post facto laws and

lenity rules, because the BME did not err in concluding the 2013

amendment to HO § 14-301(a)(2) clarified the meaning of "in

consultation with" in effect during Brigham's conduct and was not

a complete change in the law. The BME's conclusion was supported

by the Scholle court's explanation of the consultation exception

together with the General Assembly's continuation over time of

that exception and its out-of-state treating physician's

exception.

74 A-1944-14T1

The Scholle court, 46 A. at 327, explained in 1900 that

without the consultation exception, patients and local physicians

could be "occasionally" deprived of the advice of the most eminent

and skillful out-of-state physicians. By contrast, since 1902,

without a Maryland license, an out-of-state physician cannot

practice medicine in Maryland in an office or appointed place to

meet patients. When these two exceptions are read together,

consultation historically implied occasional treatment. Indeed,

this intent is reinforced by the language of the 2013 amendment

to HO § 14-301(a)(2): "engaged in consultation with a physician

licensed in the State about a particular patient and does not

direct patient care[.]" Thus, the 2013 amendment did not create

new law, and the BME did not err by using its language to define

consultation.

When the Maryland General Assembly acts, it "is presumed to

be aware of the interpretation that [the judiciary] has placed

upon its enactments," Pack Shack, Inc. v. Howard County, 808 A.2d

795, 803 (Md. 2002) (quoting Waddell v. Kirkpatrick, 626 A.2d 353,

357 (Md. 1993)), and "it 'is presumed to be aware of its own

[prior] enactments.'" Jane Doe v. Md. Bd. of Soc. Work Exam're,

862 A.2d 996, 1005 (Md. 2004) (quoting Md. State Highway Admin.

v. Kim, 726 A.2d 238, 244 (Md. 1999)). The same presumptions

75 A-1944-14T1

apply when our Legislature acts. See In re Petition for Referendum

on City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010).

Further, as in New Jersey, subsequent legislative amendments

of a statute, although not controlling as to the meaning of a

prior law, may be "helpful" in determining legislative intent.

Chesek v. Jones, 959 A.2d 795, 804 (Md. 2008). See D.W. v. R.W.,

212 N.J. 232, 250 (2012) (considering "[b]oth the plain language

and historical evolution of" a statute to reveal legislative

intent); TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533,

542 (2010) ("[A]mendments carry 'great weight' in determining the

intention of the original statute.").

Brigham cites to parts of the legislative history of the 2013

amendment to prove it was a new change to the meaning of

"consultation." However, testimony before Maryland's House Health

and Government Operations Committee on February 27, 2013,

demonstrated that both the sponsor of Maryland's House Bill (HB)

1313, which later became the 2013 amendment, and the newly

appointed head of the Maryland Board wanted the term "consultation"

in HO § 14-302(a)(2) to be clarified. Maryland delegate Bonnie

L. Cullison testified that her bill, among other things, "clarifies

consultation in a way that would allow national and international

experts who are licensed in other jurisdictions to support the

work in our teaching hospitals." Pub. Hearing Before House Health

76 A-1944-14T1

& Gov't Operations Comm., HB 1313 (Md. 2013).11 Dr. Andrea Mathias

testified: "Our teaching hospitals are quite anxious to have the

definition of consultation clarified." Ibid.

In Chesek, 959 A.2d at 804-05, the Court of Appeals held that

a subsequent "clarifying" amendment to a statute may be an

acknowledgement of an implied power already in existence. "The

term 'clarifying' sometimes can be helpful in signaling

legislative intent." Johnson v. Mayor & City Council of Baltimore,

61 A.3d 33, 45 (Md. 2013). However, absent additional evidence,

the use of the phrase "clarifying" in a statute's legislative

history, by itself, does not provide clarity as to legislative

intent.

Here, the fact that the 2013 amendment simply clarified the

meaning of "in consultation with" by acknowledging the meaning

already in existence can be divined from the hearing testimony

along with the history of Maryland's licensing exceptions, which

includes the court's reasoning in Scholle and the General

Assembly's treating physician exception. Thus, even if the

subsequent 2013 amendment itself was not directly applicable to

Brigham's conduct, any ambiguity in the definition of "in

11

View committee hearings at http://mgaleg.maryland.

gov/webmga/frmMain.aspx?id=HB1313&stab=01&pid=billpage&tab=subje

ct3&ys=2013RS.

77 A-1944-14T1

consultation with" in HO § 14-302(a)(2) was clarified by the

language in the amendment.

Finally, the BME did not err in concluding that the

preponderance of evidence proved Brigham's conduct violated

Maryland's licensing requirements to practice medicine and

therefore revoking his license under N.J.S.A. 45:1-21(f).

According to Scholle, 46 A. at 327, the public is protected from

the possible incompetence of an out-of-state consulting physician

"by the presence and supervision" of a Maryland physician.

Although Brigham's motivation for consulting with Shepard did not

matter under Maryland law, and neither did their written agreement,

Brigham violated HO § 14-301(a)(2) by practicing medicine without

a license, at the very least, every time Shepard was not physically

present during an evacuation surgery.

Accordingly, we conclude the BME did not err in revoking

Brigham's license under N.J.S.A. 45:1-21(f), as it did not

misinterpret Maryland law and there was sufficient evidence

supporting its decision that he engaged in acts constituting the

unlicensed practice of medicine in Maryland.

V.

The BME alleged the medical treatment Brigham provided to his

patients seeking late-term pregnancy terminations constituted

gross negligence in violation of N.J.S.A. 45:1-21(c). The BME

78 A-1944-14T1

concluded that "the established facts" supported a finding that

Brigham's "conduct constituted gross negligence in each and every

instance."

The BME initially explained this was "not a case focused on

. . . Brigham's technical competency to perform a D & E, and that

the record [was] devoid of evidence that any individual patient

. . . suffered physical harm as a result of any termination

procedure performed by . . . Brigham." Rather, the issue was

"broader," and focused on "the risk of harm to which patients were

exposed, and whether . . . Brigham's conduct endangered the health,

safety and welfare of his patients."

Applying that broader focus, the BME concluded:

[E]very patient treated in New Jersey by

. . . Brigham was placed in harm's way once

[he] commenced cervical preparation, because

each patient then became committed to having

a termination procedure performed in

circumstances where their treating physician

. . . knew that he could not legally perform

the procedure in New Jersey, and knew or

should have known that he could not legally

perform the procedure anywhere else. The

patients were further exposed to substantial

risk of harm because . . . Brigham held no

hospital or LACF privileges, and thus had

nowhere in New Jersey (or any other state)

where he could go to complete the termination

procedures in the event of any emergency or

unforeseen complications.

In fact, the BME found that the "latter point" was "particularly

significant" because, even if Brigham "honestly believed his

79 A-1944-14T1

practice in Maryland was legal, he had to know that there was a

possibility that a patient could go into active labor, and that a

termination procedure would need to be performed before a patient

traveled to (or arrived in) Elkton on an emergent basis."

Although not directly made a basis for discipline, the BME

observed Brigham's injections of Digoxin exposed his patients "to

additional risk." As such, the BME found there was

nothing in the record below to suggest that

. . . Brigham had any contingency plan for

those patients, beyond possibly assuming that

the patient would then be rushed to a hospital

emergency room and have their care (and

presumably their abortion procedures)

completed by a physician who had no

relationship with . . . Brigham or the

patient.

Thus, concluding Brigham's "failure to have such back-up plans in

place was a clear abrogation of his responsibility as a treatment

provider and placed each and every patient at substantial risk of

suffering grave harm," the BME held his conduct constituted gross

negligence for revocation under N.J.S.A. 45:1-21(c).

Brigham argues the record did not support the BME's finding

he was grossly negligent because he lacked a back-up plan for

patients traveling from Voorhees to Elkton. He further claims the

BME never charged his lack of a back-up plan as gross negligence,

so he had no notice until the BME raised it in its post-hearing

exceptions to the ALJ's initial decision.

80 A-1944-14T1

First, each version of the complaints in this matter12 alleged

the medical treatment Brigham provided to his patients past

fourteen weeks LMP constituted gross negligence in violation of

N.J.S.A. 45:1-21(c). Even though the complaints did not

specifically allege Brigham lacked a medical treatment back-up

plan, they were sufficient to fairly apprise him of the claims and

issues against him.

The procedural requirements of our courts of law are not

imposed on administrative agencies. In re Kallen, 92 N.J. 14, 25

(1983). Nevertheless, administrative contested cases must conform

with due process principles. Ibid. Administrative due process

is generally satisfied if "the parties had adequate notice, a

chance to know opposing evidence, and the opportunity to present

evidence and argument in response[.]" In re Dep't of Ins.'s Order

Nos. A89-119 & A90-125, 129 N.J. 365, 382 (1992).

Here, the complaints charged Brigham with gross negligence

and specifically alleged he commenced his patients' late term

pregnancy terminations in New Jersey when he administered

Laminaria, Misoprostol, or Digoxin, knowing he could not legally

perform the required evacuation surgeries in New Jersey.

Furthermore, the evidence included discussions of whether Brigham

12

The BME filed a first, second, and third amended complaint.

81 A-1944-14T1

could perform the evacuation surgeries on his patients after

treating them with the prefatory steps for dilation and/or fetal

demise to that surgery. Thus, Brigham had adequate notice of the

gross negligence charges filed against him.

Second, the record shows the emergency room director at a

Delaware hospital assured Brigham the hospital would care for any

of his patients in case of an emergency while on route to Elkton.

However, the BME's decision on gross negligence was not dependent

upon whether Brigham had a back-up plan in Delaware for his

patients, or whether he legally could perform evacuation surgeries

in Maryland. Rather, the BME found he endangered his patients by

commencing dilation and/or fetal demise in New Jersey while knowing

he was not able to legally perform their evacuation surgeries

here, within the BME's jurisdiction.

A physician is merely negligent when he or she fails to

exercise the degree of care that a reasonably prudent physician

would exercise under similar circumstances. Schueler v.

Strelinger, 43 N.J. 330, 344-45 (1964). Gross negligence, however,

refers to conduct that demonstrates a conscious or reckless

disregard for the safety or welfare of another. In re Suspension

or Revocation of License of Kerlin, 151 N.J. Super. 179, 185-86

(App. Div. 1977). In holding that basic tort liability concepts

are not applicable in professional disciplinary actions, the court

82 A-1944-14T1

stated in Kerlin: "It is obvious that the terms 'neglect' and

'malpractice,' standing alone, import a deviation from normal

standards of conduct. 'Gross neglect' or 'gross malpractice'

suggest conduct beyond such wrongful action - how far beyond has

been left to the judgment of the Board, subject, of course, to

judicial review." Id. at 186.

Here, the BME relied on its own professional expertise to

find Brigham exposed his patients to harm by his lack of hospital

or LACF privileges in New Jersey. "While the Board, sitting in a

quasi-judicial capacity, 'cannot be silent witnesses as well as

judges,' an agency's 'experience, technical competence, and

specialized knowledge may be utilized in the valuation of the

evidence.'" In re Suspension or Revocation of License of

Silberman, 169 N.J. Super. 243, 256 (App. Div. 1979) (citation

first quoting N.J. State Bd. Optometrists v. Nemitz, 21 N.J. Super.

18, 28 (App Div. 1952); then quoting N.J.S.A. 52:14B-10(b)), aff'd

o.b., 84 N.J. 303 (1980).

The BME's decision that Brigham's patients were exposed to

harm by his lack of hospital or LACF privileges to deal with

unforeseen complications was supported by a preponderance of the

credible evidence in the record. For example, Brigham treated

patient J.P., a Grace patient who was in her second trimester, by

inserting Laminaria and injecting Digoxin in a New Jersey office.

83 A-1944-14T1

His plan was that after a night in a New Jersey hotel, J.P. would

travel to Maryland for the evacuation surgery. However, that

night, J.P. had an emergency and was admitted to a New Jersey

hospital and treated by other physicians, not Brigham.

Brigham claims, however, that J.P. had no medical emergency

and the police prevented him from communicating with her. His

argument avoids the undisputed fact that after performing the

prefatory steps in New Jersey, he could not have treated J.P in

an emergency by continuing his treatment for pregnancy termination

here.

The record supported the BME's holding that Brigham's conduct

constituted gross negligence. Lichtenberg testified that

Brigham's conduct in undertaking cervical preparation in New

Jersey with a plan only to perform the surgery in Maryland was a

"gross and serious deviation" from the "accepted standards of

care." He also stated that Brigham had committed a gross deviation

when he breached his patients' trust by committing them to a

procedure he could not legally perform.

Because J.P.'s treatment and Lichtenberg's opinions supported

the BME's finding, it was a proper exercise of the BME's power.

Silberman, 169 N.J. Super. at 255-56. Hence, we find the BME did

not err in revoking Brigham's license under N.J.S.A. 45:1-21(c),

84 A-1944-14T1

as there was sufficient evidence in the record to support its

decision that he had engaged in gross negligence.

VI.

Brigham contends the BME erred in revoking his license under

N.J.S.A. 45:1-21(b) and (h) by finding evidence of serious and

substantial recordkeeping deficiencies violating N.J.A.C. 13:35-

6.5. This contention lacks merit.

Under N.J.S.A. 45:1-21, the BME may revoke any license to

practice medicine and surgery "upon proof" that the licensee "[h]as

engaged in the use or employment of dishonesty, fraud, deception,

misrepresentation, false promise or false pretense," N.J.S.A.

45:1-21(b), or "[h]as violated or failed to comply with the

provisions of any act or regulation administered by the board,"

N.J.S.A. 45:1-21(h). The standard of proof is by a preponderance

of the evidence. Polk, 90 N.J. at 560.

Subchapter 6 of N.J.A.C. 13:35 contains the BME's general

practice rules and includes a regulation that controls the

preparation of patient records. N.J.A.C. 13:35-6.5. During the

period at issue, N.J.A.C. 13:35-6.5(b)(1) provided as follows, in

pertinent part:

(b) Licensees shall prepare contemporaneous,

permanent professional treatment records.

85 A-1944-14T1

. . . All treatment records . . . shall

accurately reflect the treatment or services

rendered. . . .

1. To the extent applicable,

professional treatment records shall reflect:

i. The dates of all treatments;

ii. The patient complaint;

iii. The history;

iv. Findings on appropriate

examination;

v. Progress notes;

vi. Any orders for tests or

consultations and the results thereof;

vii. Diagnosis or medical

impression;

viii. Treatment ordered,

including specific dosages, quantities

and strengths of medications including

refills if prescribed, administered or

dispensed, and recommended follow-up;

ix. The identity of the treatment

provider if the service is rendered in a

setting in which more than one provider

practices; [and]

. . . .

xi. . . . The treating doctor shall

also make and document specific inquiry

of or regarding a patient in appropriate

circumstances, such as . . . where

surgery is anticipated with use of

general anesthesia.

86 A-1944-14T1

A licensee may make "[c]orrections/additions" to an existing

record, "provided that each change is clearly identified as such,

dated and initialed by the licensee." N.J.A.C. 13:35-6.5(b)(2).

The regulation was amended in June 2011, but no changes were made

to the portions quoted above, 43 N.J.R. 1359(b) (June 6, 2011)

(adoption).

The BME adopted the ALJ's finding that Brigham violated

N.J.A.C. 13:35-6.5. The ALJ found the evidence proved Brigham's

patient records "were, at least upon facial examination,

confusing." The "Abortion Record" of each patient identified both

that she had a spontaneous unassisted abortion, which was

incorrect, and the equipment and methods used to evacuate the

fetus and placenta. The ALJ found these "confused" records

violated the mandate in N.J.A.C. 13:35-6.5 of maintaining accurate

records, but agreed with Lichtenberg's characterization that the

"deviations from the proper professional standard regarding

keeping of accurate records" were "not serious." The ALJ stated

that "[a]nyone who had reason to examine the record could readily

see that it was not a record of spontaneous delivery, and the

specific means utilized to effectuate the delivery are readily

identified."

The ALJ also found that Brigham's Informed Consent forms were

"not appropriately clear" because they stated the patient, who was

87 A-1944-14T1

requesting a "medical abortion," was required to give her consent

to a "surgical abortion." The ALJ concluded that this, too, only

was "a minor violation of standards."

However, the BME rejected the ALJ's characterizations that

Brigham's recordkeeping violations were minor. Instead, it

concluded the violations were "'substantial' and 'serious,'"

finding Brigham had "consistently prepared records in a manner

that likely would deceive anyone reading his records (at a later

date) regarding the specific identity of the physician who

performed the abortion or the specific procedure performed." The

BME focused on the following violations: (1) "Brigham's consistent

practice of falsely representing [on each patient's] "Abortion

Record" that the patient had spontaneously delivered the fetus and

placenta"; (2) Brigham's practice of identifying only Shepard, and

never himself, as the "doctor" on the "Recovery Room Log"

maintained at the Elkton office for all patients; and (3) Brigham's

practice of leaving blank the identity of the physician performing

the patient's evacuation surgery on her "Informed Consent" form.

As to entries on the Abortion Records, the BME concluded

that, while the "mistake" of indicating a spontaneous delivery

instead of a surgical abortion "could certainly be excused as a

record-keeping error in an isolated instance, it instead was

clearly a deliberate practice as the same error was made in each

88 A-1944-14T1

and every case." As such, the BME "infer[red] that the practice

was done to mislead or confuse anyone subsequently reading or

reviewing . . . Brigham's records as to what actually occurred."

It rejected any testimony that a subsequent reader would be able

to determine from the entire document what actual treatment had

been performed, since it was unreasonable to assume that the reader

would have "a level of experience and sophistication similar to

that of the two expert witnesses."

As to entries on the Recovery Room Logs, the BME concluded

that because Shepard's name alone was listed as the doctor, the

logical inference one reviewing the logs would draw is that Shepard

performed each surgery.

As to the Informed Consent forms, the BME acknowledged that

Brigham's name was sometimes identified on the form as the

physician who would be performing the patient's abortion, and that

all of the forms were maintained within a larger patient record

wherein his name was identified. However, the BME declared that

"one reviewing the Informed Consent form alone would again have

no way to know that . . . Brigham was the physician who was to

perform the abortion." Indeed, relying on its "collective

expertise," the BME concluded that "such practice is inconsistent

with general standards for obtaining and recording an informed

consent." It therefore concluded that "[w]hile the failure to

89 A-1944-14T1

have identified . . . Brigham on an Informed Consent form could

again readily be excused, or considered to be a 'minor' violation

in any isolated instance, the consistency of the practice renders

the violation far more concerning."

Viewing the violations on the Abortion Records, Recovery Room

Logs, and Informed Consent forms in the aggregate, the BME

concluded Brigham's "misleading record-keeping practices support

a conclusion that he engaged in the use or employment of

dishonesty, deception or misrepresentation." The BME stated:

[E]ach deceptive practice was done to mislead

and confuse a subsequent reader of . . .

Brigham's records, and to generally obscure

the truth about the actual procedure performed

and the identity of the physician who

performed the procedure. We thus conclude,

based on record-keeping practices alone, that

. . . Brigham should be found to have violated

N.J.S.A. 45:1-21(b), and should be subject to

penalty for that reason as well as for the

reason that his records failed to conform to

the requirements of the Board's record-keeping

regulation, N.J.A.C. 13:35-6.5 in turn

providing basis for disciplinary sanction

pursuant to N.J.S.A. 45:1-21(h).

The BME, however, declined to find that Brigham's recordkeeping

constituted fraud and limited his violations of N.J.S.A. 45:1-

21(b) to his engaging "in the use or employment of dishonesty,

. . . deception, misrepresentation, false promise or false

pretense[.]"

90 A-1944-14T1

Brigham does not challenge the BME's factfindings. Instead,

he argues the BME erred by not considering all of the evidence

presented before it concluded his recordkeeping deficiencies were

substantial, serious, and deceptive. He claims there was no

evidence of intent to hide his identity in the records from any

subsequent reader or his patients. For example, as to the Abortion

Records, he asserts these documents were not prepared to deceive

a subsequent reader. He explains that aside from the records

impounded by the police before he had time to complete them, he

included his name as the physician who removed the fetus while

engaging in consultation with Shepard. He also claims patient

records are prepared for medical professionals, and they would

know from the notations in the document that surgical procedures

were performed even though the box for spontaneous delivery was

marked. Furthermore, any subsequent reader with "a modicum" of

medical knowledge also would understand the records.

As to the Recovery Room Logs, Brigham asserts he had nothing

to do with the entry notations and points to C.R.'s testimony that

she made them at Shepard's direction. He further claims, because

the patient records were replete with statements that he performed

the surgical procedures, anyone who reviewed them could not have

been misled.

91 A-1944-14T1

As to the Consent Forms, he asserts they were not deceptive,

even though these preprinted forms did not include the name of the

physician, because every patient had met him personally and knew

he would be performing the abortion. Also, his signature was on

every Laminaria insertion sheet and procedure record. Finally,

he points to testimony that the forms were completed without adding

his name.

Licensed physicians have a "duty to ensure that '[a]ll

treatment records . . . accurately reflect the treatment or

services rendered.'" Rosenblit v. Zimmerman, 166 N.J. 391, 399

n.1 (2001) (alterations in original) (quoting N.J.A.C. 13:35-

6.5(b)(2)). Further, N.J.A.C. 13:35-6.5(b) mandates that all

treatment records "accurately reflect" the treatment or services

rendered, and N.J.A.C. 13:35-6.5(b)(1)(ix) requires treatment

records to reflect "[t]he identity of the treatment provider if

the service is rendered in a setting in which more than one

provider practices."

It is undisputed the Abortion Records incorrectly indicated

spontaneous abortions had occurred, Brigham's name never appeared

on the Recovery Room Logs, and the majority of preprinted "Informed

Consent for Abortion after 14 Weeks" forms were blank where the

name of the doctor who would perform the surgery should have been

inserted. Moreover, Brigham admitted to completing patient

92 A-1944-14T1

records well after treatments, which Lichtenberg found was

unreasonable.

The BME's decision that Brigham's recordkeeping violations

constituted acts of dishonesty, deception, misrepresentation,

false promise or false pretense under N.J.S.A. 45:1-21(b) is

entitled to deference, as the evidence and inferences that could

be drawn therefrom support this conclusion. Although we will not

simply rubberstamp an agency's decision, we "may not 'engage in

an independent assessment of the evidence as if [we] were the

court of first instance.'" In re Taylor, 158 N.J. 644, 656-57

(1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Even

if other evidence in the record allowed for a contrary result, the

BME understood the issues and the relevance of the information in

the patient records. We should not substitute our "views of

whether a particular penalty is correct for those of the body

charged with making that decision." Stallworth, 208 N.J. at 191

(Citation omitted). "If . . . [we are] satisfied after [our]

review that the evidence and the inferences to be drawn therefrom

support the agency head's decision, then [we] must affirm even if

we would have reached a different result itself." Clowes v.

Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

Further, Brigham's recordkeeping violations independently

provided sufficient grounds for the BME to revoke his license and

93 A-1944-14T1

impose sanctions under N.J.S.A. 45:1-21. In In re Suspension or

Revocation of License of Jascalevich, 182 N.J. Super. 455, 457-58

(App. Div. 1982), we upheld the BME's license revocation of a

physician who was charged with, among other things, violations of

his recordkeeping responsibilities. We stated:

We are persuaded that a physician's duty

to a patient cannot but encompass his

affirmative obligation to maintain the

integrity, accuracy, truth and reliability of

the patient's medical record. His obligation

in this regard is no less compelling than his

duties respecting diagnosis and treatment of

the patient since the medical community must,

of necessity, be able to rely on those records

in the continuing and future care of that

patient. Obviously, the rendering of that

care is prejudiced by anything in those

records which is false, misleading or

inaccurate. We hold, therefore, that a

deliberate falsification by a physician of his

patient's medical record, particularly when

the reason therefor is to protect his own

interests at the expense of his patient's,

must be regarded as gross malpractice

endangering the health or life of his patient.

[Id. at 471-72.]

Accordingly, we find the BME did not err by concluding Brigham

committed serious and substantial recordkeeping violations. We

further find, based on a physician's duty to ensure accurate

treatment records, that these violations independently provided

sufficient grounds for the BME to revoke Brigham's license and

impose sanctions under N.J.S.A. 45:1-21(b) and (h).

94 A-1944-14T1

VII.

Lastly, Brigham contends that the sanctions of license

revocation, penalties, and costs are not sustainable by the BME's

conclusions that he had violated the TOP rule, engaged in the

unlicensed practice of medicine in Maryland, and committed

recordkeeping violations. Making no specific arguments, he

generally claims the BME's conclusions are not supported by the

facts and are contrary to New Jersey and Maryland law. In his

reply brief, he asserts that the BME's bias and unfairness was due

to the fact that this matter concerned "the explosive issue" of

late term abortions.

"[T]here is no doubt of a court's power of review under the

tests of illegality, arbitrariness or abuse of discretion and of

its power to impose a lesser or different penalty in appropriate

cases." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93

(1973). However, our "review of an agency's choice of sanction

is limited." Zahl, 186 N.J. at 353. As a general rule, we "accord

substantial deference to an agency head's choice of remedy or

sanction, seeing it as a matter of broad discretion, especially

where considerations of public policy are implicated." Div. of

State Police v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997)

(citations omitted).

95 A-1944-14T1

We may set aside a sanction only "where [we are] satisfied

that the agency has mistakenly exercised its discretion or

misperceived its own statutory authority." Polk, 90 N.J. at 578.

The test is "whether such punishment is 'so disproportionate to

the offense, in the light of all the circumstances, as to be

shocking to one's sense of fairness.'" Ibid. (quoting Pell v. Bd.

of Educ., 356 N.Y.S.2d 833, 841 (1974)). Where a penalty or

sanction is found to be in error, we may "finally determine the

matter by fixing the appropriate penalty or remand it to the

[agency] for redetermination." Henry v. Rahway State Prison, 81

N.J. 571, 580 (1980).

As we previously explained, the MPA grants the BME "broad

authority" to regulate the practice of medicine. Zahl, 186 N.J.

at 352. The UEA allows the BME to revoke a physician's license

by finding a preponderance of the evidence that the physician

violated any of the subsections in N.J.S.A. 45:1-21. Polk, 90

N.J. at 560. In addition to license revocation, the BME may assess

civil penalties against the physician under N.J.S.A. 45:1-22.

Neither of those statutes requires patient harm before authorizing

revocation. Zahl, 186 N.J. at 355.

Thus, even though we reverse the BME's finding that Brigham's

conduct violated the TOP rule, there was ample evidence to support

its conclusions that he violated N.J.A.C. 13:35-6.5 by keeping

96 A-1944-14T1

deficient patient records, and engaged in gross negligence and

practiced medicine without a license in Maryland.

Furthermore, the BME concluded that Brigham had "repeatedly

withheld pertinent, if not crucial, information from his

patients," in violation of N.J.S.A. 45:1-21(b). Most importantly,

it explained

that each and every patient treated by . . .

Brigham had a right to know, and should have

been told, what . . . Brigham himself knew

namely, that he could not legally perform an

abortion in New Jersey. Each and every

patient had a right to know that, in the event

there was any emergency requiring

hospitalization in New Jersey before the time

of the scheduled procedure, . . . Brigham

could not have performed their abortion in New

Jersey, and could not even have been involved

in their care because he held no hospital

privileges. Each and every patient should

likewise have been told that her abortion

would be performed in Maryland rather than in

New Jersey, and should have been given far

more specific information about the nature and

location of the facility where . . . Brigham

intended to perform the abortion. Similarly,

each and every patient had a right to know,

and should have been told, that . . . Brigham

was not in fact licensed in Maryland, that his

intent was instead to rely on an exemption to

Maryland licensure law and to perform [the]

abortion "in consultation" with . . . Shepard.

Whether those disclosures would or would

not have changed patients' elections to have

. . . Brigham perform their procedure is

speculative but ultimately irrelevant - what

is relevant is that those were crucial facts

and key elements necessary to allow a patient

to make a knowing and informed choice about

97 A-1944-14T1

her care options. . . . Brigham's failure to

be forthright and honest with his patients

corrupted the informed consent process and

fundamentally shattered the trust inherent in

the physician-patient relationship.

Finally, based on the constellatio

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