IN RE: THE SUSPENSION OR REVOCATION OF THE LICENSE OF
Marc Weber appeals a final order of the State Board of Dentistry that revokes his license to practice dentistry and bars him from seeking reinstatement for a period of three years. In addition, the Board's order requires Weber to pay: within two months, restitution to specified patients in the aggregate amount of $32,858.34, N.J.S.A. 45:1–22d; over a period of ten years, $250,000, the aggregate of civil penalties for fifty-six violations, N.J.S.A. 45:1–25a; and over a period of twenty-four months, $160,286.06 in fees and costs, N.J.S.A. 45:1–25d. For the reasons that follow, we affirm.
As required by N.J.S.A. 52:14B–11, a provision of the Administrative Procedure Act, N.J.S.A. 52:14B–1 to –25, the Board referred the Attorney General's (the State's) complaint seeking revocation or suspension of Weber's license to the Office of Administrative Law (OAL) as a contested case. See In re Fannelli, 174 N.J. 165, 173 (2002) (discussing the right to an administrative hearing in such cases). The Administrative Law Judge (ALJ) took testimony and evidence over sixteen days, and he issued an initial decision recommending revocation, a $250,000 civil penalty and imposition of restitution and fees and costs to be set by the Board. Neither party filed exceptions to the ALJ's decision,1 and the Board adopted the ALJ's factual findings and legal conclusions. The Board fixed restitution, fees and costs based on documentation submitted to the Board by the State and only after considering Weber's testimony in support of a mitigated penalty.2
The amended complaint on which Weber was tried in the OAL alleged more than 100 violations in twenty-six counts involving twenty-two specific patients and three counts alleging violations related to Weber's practice involving his obligations as a licensed dentist. The ALJ found and identified a total of sixty-eight violations — three related to Weber's practice in general and the remainder related to eighteen specific patients.3
The sixty-eight violations found by the ALJ and the Board were: one instance of gross negligence in the care of patient U.G., N.J.S.A. 45:1–21(c); six instances of repeated negligence involving the care of six patients, K.H., E.A., C.G., U.G., M.L. and J.E.S., Jr., including deviations from the standard of care involving treatment plans, informed consent and record keeping, N.J.S.A. 45:1–21(d) and N.J.A.C. 13:30–8.7(a)(4); nine instances of “deficient treatment” each involving a different patient, W.R., D.J.M., B.J., J.M., S.M., D.P., K.R., M.L. and U.G., without designating a statute or regulation; two violations of the Board's rule concerning radiographs amounting to professional misconduct, N.J.S.A. 45:1–21(e), N.J.A.C. 13:30–8.7(a)(6) and N.J.A.C. 13:30–1.1(c); fourteen acts involving fraud against patients, N.J.S.A. 45:1–21(b); seventeen violations based on acts of deception or dishonesty, N.J.S.A. 45:1–21(b); sixteen violations based on professional or occupational misconduct, N.J.S.A. 45:1–21(e); one violation for Weber's non-compliance with continuing education requirements, N.J.S.A. 45:6–10.8 and N.J.A.C. 13:30–5.1(a); and two violations based upon Weber's failure to cooperate with directives from the Board to submit sworn statements pertinent to the investigation, N.J.A.C. 13:45C–1.1 to –1.5, which, absent good cause or bona fide claim of privilege, is professional or occupational misconduct within the meaning of N.J.S.A. 45:1–21(e), N.J.A.C. 13:45C–1.2b. See also N.J.S.A. 45:1–18 (setting forth the investigatory powers of the Board and the Attorney General).4
The evidence pertinent to the violations presented during the OAL hearing included the testimony of patients, parents and spouses of patients, an expert witness on deviations from accepted standards of dentistry, Dr. Paul J. Condello, D.M.D., and transcripts of testimony that Weber and his former office manager — Jennifer Barbers (now married to Weber) — gave in depositions and a prior proceeding before the Board. Weber and Barbers did not testify, and Weber presented only one witness — the officer manager for the doctors who purchased Weber's practice.
A. The Evidence
From November 1995 until December 2006, Weber was the sole owner of Whitehouse Dental Associates, doing business as Weber Dental Associates (Weber Dental). Weber sold his practice for $1,550,000 pursuant to an agreement that gave the buyer, the dentists owning “Perfect Smile,” control of the practice effective November 30, 2006. The agreement provided for Weber and Barbers to work for Perfect Smile through December 2008. Indeed, Weber treated a patient at Perfect Smile as late as May 2008. The only violations found by the ALJ and the Board after November 30, 2006 involved patients Weber treated.
There is no dispute that Weber's practice was not in good order when purchased by Perfect Smile. Weber acknowledged that because of his problem with substance abuse during a period commencing in 2003 and ending in 2006, his practice was a “mess.” “[N]othing [was] written down”; it “was a free-for-all,” with no one “in charge of every single little thing.” He acknowledged understanding that he “was responsible for the practice” while he “still owned it.”
Perfect Smile's office manager's testimony supports Weber's account of the condition of his practice. She reviewed Weber Dental's files prior to the sale and found that Weber Dental had as many as three thousand patients, but their files were missing or in disarray and not readily accessible. According to her, after the sale the dentists who purchased the practice intercepted mail addressed to Weber, including communications from the Board, and destroyed some of his records.
The agreement of sale and a stipulation of the parties, admitted into evidence by the ALJ, demonstrate that Weber Dental's finances were mismanaged as well. Amounts owed suppliers of veneers, caps, crowns and bridges ordered for specific patients were not paid, and that led one supplier to withhold completed work and refuse new orders from Weber Dental. The agreement of sale called for Perfect Smile to make the $213,000 deposit due on the purchase price by directly paying specified amounts to Weber Dental's creditors — a total of $63,726 went to suppliers of dental materials, and $48,000 went to patients owed refunds. In addition, it provided for $100,000 of the amount due to Weber at closing to be placed in escrow to provide for a variety of specified purposes, including certain refunds.
Patients were due refunds for work that was never completed, either because permanent veneers, crowns and bridges they had paid for were never placed or improperly fitted. Many of the patients had been urged to take loans offered by lenders through Weber Dental to cover costs that they were told would not be covered by their respective insurers. Weber Dental generally charged and received the full cost of the work against those loans in advance, even though staff members had told some of the patients that the loans would be charged only as the work was done and that amounts covered by insurance would not be billed to, or would be paid by, Weber Dental on the loans.
Weber Dental's staff had reason to urge patients to take the loans and to select expensive braces and crowns. Barbers and others participated in a “staff appreciation program” offered by one of the lenders. Weber knew about and approved that program, through which staff members who signed up patients for loans received gift certificates — for example, Barbers acknowledged receipt of a $100 gift certificate for an up-scale department store. In addition, with respect to materials used in treatment, Weber himself rewarded a member of his staff who sold patients a specific brand of braces, and patients were urged to select expensive crowns. Although use of those products and the loans generated substantial income for the practice, neither of these incentive programs were disclosed to the patients involved.
Prior to the commencement of this disciplinary action, several of Weber Dental's patients complained to the Board, the Attorney General or the local police department about delay in the replacement of temporary with permanent fixtures and Weber's failure to refund payment for uncompleted work. During the investigation that followed, problems with the treatment received by patients were uncovered as well.
The paragraphs that follow summarize the evidence about each patient the ALJ identified as a victim of one or more violations and the facts supporting the restitution awarded by the Board to nine of the eighteen patients. Because the ALJ did not find any violations specific to the patients named in counts eleven, fifteen, sixteen and eighteen — respectively P.J., J.N., D.P. and R.R. — we do not discuss them.
K.H., the patient named in count one, saw Weber in February 2007, after the sale of the practice. The ALJ found deceptive practices, fraud and repeated acts of negligence related to her care. Following a routine checkup, Weber told K.H. and her father that she would lose four front teeth if she did not have them covered with veneers, at a cost of $3950, which she would have to pay in advance. Later, when things had not gone smoothly, Weber told K.H.'s mother that the veneers were strictly cosmetic.
The process of installing veneers required the grinding of the four teeth in preparation for veneers and a tooth to be fitted for a crown. It also required the taking of impressions of the teeth to be covered. Those steps were to be followed by placement of temporary and then permanent veneers. After placement of ill-fitting temporary veneers and a temporary crown and a series of delays in installation of permanent fixtures, K.H. went elsewhere to have the work completed. But the second dentist had to first treat K.H. for an abscess and infection, which had developed at the site. His work cost $10,000.
Dr. Condello, the State's expert, reviewed K.H.'s records and identified several deviations from the standard of care. There was no record of informed consent being obtained and an x-ray demonstrated that the nerve of a tooth that had a temporary crown had been penetrated and was bleeding because the pulp was left exposed and the crown did not fit.
The patient named in count two, E.A., saw Weber in September 2006, before he sold his practice. The ALJ found three violations related to this patient's care and billing — repeated negligence, professional misconduct and fraud.
Weber told E.A. she needed implants and a night guard to prevent additional damage caused by grinding her teeth. E.A. agreed to and was measured for the night guard but did not want implants. Nevertheless, while she was having her teeth cleaned, Weber and a member of his staff suggested she complete forms to qualify for a $6000 loan to cover the cost of the implants in case she changed her mind. E.A. agreed, but when she reviewed the papers at home and realized she had authorized a loan and attempted to cancel it, she learned that the lender had already paid Weber Dental $6000. E.A. did not get the loan cancelled until January 2007, and, despite repeated requests, she never received the night guard.
According to Dr. Condello, Weber's failures to provide the night guard he deemed necessary was a deviation from the standard of care.
C.G. is the patient named in counts three and twenty-four. Based on her treatment and billing, the ALJ found deceptive and fraudulent practices amounting to professional misconduct, deviation from the standards of care related to x-rays and installation of an ill-fitting crown, a violation of the Board's rule governing x-rays, and repeated negligence. The Board awarded C.G. restitution in the amount of $4390.
C.G. saw Weber in June of 2006. Following the initial examination, Weber advised that she needed a bridge and a plate, which would not be covered by her insurance. Weber and Barbers suggested a loan, and C.G.'s husband paid $4390 to the lender. In addition, Weber billed and was paid by the family's insurer. Ultimately, due to delays in C.G.'s treatment that Weber blamed on the fact that the supplier had failed to deliver the bridge, C.G.'s dental work was completed elsewhere and paid by the insurer. Dr. Condello reviewed C.G.'s records, and he found that a crown Weber placed was too big for the root of the tooth, that the x-rays in her file were too poor to read and did not cover a wide-enough area of her mouth given the proposed treatment and that the practice notes did not identify the dentist.
S.H., the patient named in count four, saw Weber in October 2005 for pain she attributed to a cavity. Weber told her she needed two teeth extracted and implants, which would cost $3000 and not be covered by her insurance. Barbers had S.H. sign for a $3000 loan, but a loan in the amount of $6500 was issued by a different lender. On discovering the new loan, S.H. cancelled her scheduled appointment. It was only after repeated efforts and the lender's commencement of collection proceedings that Weber Dental cancelled the loan.
W.R., the patient named in count five, saw an associate dentist practicing at Weber Dental in May 2006. With respect to this patient the ALJ found fraudulent and deceptive practices and professional misconduct. The Board awarded W.R. $2335 as restitution.
Weber's associate suggested that W.R. get veneers for cosmetic reasons. She was interested but wanted to postpone the work because she was going on a vacation on June 10, 2006. On the assurance that the work would be completed in time, W.R. proceeded and Weber Dental arranged a loan. On June 1, her teeth were ground in preparation for the veneers, but the veneers did not arrive before her trip. Consequently, she left for vacation with her teeth being sensitive to hot and cold. In fact, the veneers had still not arrived on July 24. At that point, W.R. attempted, without success, to cancel the loan and went to another dentist. W.R. never obtained a refund, and she paid the loan to protect her credit rating.
Weber treated L.V., the patient named in count six, after he sold his practice. Based on this patient's care, the ALJ found fraud and deceptive practice and professional misconduct. The Board awarded L.V. $552 as restitution. Weber installed a crown, but L.V. had paid him $552 for a porcelain crown that he did not receive. He sought a refund of that amount, but Weber declined to assist him and told him to talk to the new owners.
Weber saw D.J.M., the patient named in count seven, for a consultation about a cracked tooth in June 2006. Based on the evidence presented, the ALJ found fraudulent and deceptive practices and professional misconduct. The Board awarded D.J.M. $5507 as restitution.
After examining D.J.M., Weber told her she needed four crowns, including a very expensive crown with a longer useful life for the cracked tooth plus laminates for two front teeth. Weber quoted a total cost of $5507. D.J.M. declined the laminates but otherwise agreed. Barbers suggested D.J.M. take a loan in the full amount. Understanding that the loan would be charged only for services rendered, D.J.M. did. Within weeks, D.J.M. realized that she had been charged twice for the expensive crown, complained and stressed that she did not want the laminates. Although Barbers did not return D.J.M.'s calls, D.J.M. continued her treatment. When D.J.M. appeared for her appointment to have the crowns installed, only three of the four were available. During that visit, Barbers advised D.J.M. that she would be reimbursed for the double charge, but that did not happen. The lender also denied her request to eliminate the double charge. D.J.M.'s work was not completed until November 2009, and she ultimately paid the double charge. Later, two of the permanent crowns fell out.
M.N., the patient named in count eight, went to Weber Dental in August 2005 seeking to have gaps between her teeth corrected and her teeth whitened. She was not satisfied and spoke to Weber, who told her she would receive a $750 refund. With respect to M.N., the ALJ found fraudulent and deceptive practices and professional misconduct. The Board awarded M.N. restitution in the amount Weber promised, $750.
In this case, Weber's associate recommended veneers, which would involve grinding of the teeth, followed by veneers and then Invisalign braces, at a total cost of $7000. When the veneers arrived, they were the same color as the teeth M.N. wanted whitened. M.N. was given bleach trays that did not fit, and which would not, in any event work, because the color of the veneers was permanent and use of the trays would have left M.N. with different-colored teeth and veneers.
Weber saw O.C., the patient named in count nine, in March 2008. The ALJ found fraudulent and deceptive practices and professional misconduct related to this patient.
Weber told O.C. she needed work — an extraction of an infected tooth, implants and crowns — that would cost $6500 beyond what her insurance would cover. O.C. signed loan documents that Barbers gave her. After discovering a charge of $875 for a bone graft that had not been mentioned or done, O.C. complained to Barbers and the lender. Barbers told her that Weber would pay her for half of that $875 charge. At that point, O.C. asked for but did not receive her dental records. Consequently, she filed suit against Weber, Barbers and Perfect Smile, which Perfect Smile settled by paying her loan for work not done, including the $875 charge.
B.J., the patient named in count ten, was treated at Weber Dental from January 14 through July 8, 2004, while Weber owned the practice. Weber was not directly involved. The ALJ found fraudulent and deceptive practices and professional misconduct, and the Board awarded $5843 as restitution.
B.J. went to Weber Dental for a cleaning and a cavity, but she mentioned that she was interested in cosmetic work on two upper teeth and whitening. Weber's associate recommended veneers and whitening at a cost of $3358. Barbers suggested a loan, but B.J. declined and charged the cost to her credit card. After impressions were taken and work on the veneers commenced, the dentist suggested additional veneers costing $1500, which B.J. also paid. Temporary veneers were placed in March, but B.J. was turned away from subsequent appointments for installation of permanent veneers scheduled between March 31 and July 8 on the ground that the permanents delivered were inadequate. On one of those visits, the temporaries were drilled out and replaced with others that did not fit well.
B.J.'s final visit was on July 8. She cried on learning that the work could not be completed, and the dental assistant suggested she go elsewhere, which B.J. did. B.J. subsequently spent $21,910 for reconstructive care.
D.M., the patient named in count twelve, started treatment at Weber Dental in May 2006. Weber did not treat her, but he spoke to her in June about her disagreement with a charge against a loan she took at Barbers' suggestion. Weber promised to correct the problem, but it was not addressed until August 2006, when D.M. appeared at the office with a police officer. That day, Barbers had the lender cancel the loan.
J.M., the patient named in count thirteen, was initially treated by an associate of Weber's in June 2006, but Weber installed three permanent crowns for J.M. between her initial and final visit in 2007. With respect to this patient, the ALJ found one violation — failure to develop a treatment plan for the extensive care J.M. received, N.J.A.C. 13:30–8.7(a)(4). While being treating at Weber Dental and Perfect Smile, J.M. had three molars ground down for crowns and several root canals. She developed a painful infection and was on a liquid diet for about a month, and when she wanted a copy of her records to get a second opinion she was told that she would have to pay a fee and that her x-rays could not be located. Eventually, J.M. went elsewhere. She did well after that dentist addressed her gingivitis and replaced her crowns.
S.M., the patient named in count fourteen, saw associate dentists at Weber Dental and had extensive work done in 2001, 2002 and 2003. In this case, the ALJ found one violation — failure to develop a treatment plan for the extensive care S.M. received, N.J.A.C. 13:30–8.7(a)(4).
Seventeen of S.M.'s teeth were treated through root canal or extraction, and all but two of the crowns she received had to be redone. After she left Weber Dental, an oral surgeon extracted three of the teeth that she had treated at Weber Dental. There was no evidence of any treatment plan, despite the obvious complexity of the case. S.M. testified that the poor care she received was done by others and not Weber's fault, but that testimony does not undermine the violation found by the ALJ, which concerned nothing other than Weber Dental's failure to have a treatment plan for the patient.
M.J.P., the patient named in count seventeen, saw Weber in March 2008 for a cracked tooth. With respect to this patient, the ALJ found fraudulent and deceptive practices and professional misconduct. The Board directed Weber to pay $2200 as restitution.
M.J.P. was told that she needed extensive work, which Barbers told her would cost about $11,000. Barbers had M.J.P. sign a loan, but Weber told her he would bill her insurance and apply those payments to the loan. By April 29, 2008, M.J.P. realized that there was a problem with the billing — a balance that had been paid was still reflected and Weber had filed a claim with her insurer for crowns on teeth that had not been treated. She filed a complaint with the Board.
K.R., the patient named in count nineteen, went to Weber Dental for a cleaning in January 2006. The ALJ concluded that the State's evidence concerning this patient established fraudulent and deceptive practices and professional misconduct, and the Board ordered Weber to pay $1683.34 as restitution.
On K.R.'s first visit, the dentist found three cavities and recommended three crowns and Invisalign braces. K.R. agreed to a $6000 loan, which he understood would be billed as the work was done. The patient encountered many problems as the work was done. They included: a temporary crown that fell apart; sensitivity of a tooth supporting one of the temporary crowns; a temporary that was mistakenly fixed with permanent cement; the chipping of a healthy tooth during removal of the improperly cemented temporary; cancellations of appointments in February and April made for installation of the permanent crowns; and finally a May appointment for installation of permanents that was cancelled because only two of the three permanent crowns had arrived.
At that point, K.R. filed a complaint with the Board, and he accepted a check from the lender in the amount of $4316.66, which was $1683.34 less than the loan amount.
Count twenty named patient M.L., who was a Medicaid patient. Accompanied by her mother, A.M., M.L. went to Weber Dental in August 2006. With respect to this patient, the ALJ found only one violation — a fraudulent practice based on Weber's conditioning his completion of M.L.'s care on her signing a letter asserting that A.M. was making false allegations about him. In the Board's view, this was egregious conduct, and the Board awarded M.L. and A.M. $9000, the full amount of the loan taken to pay costs beyond what Medicaid covered.
Given the basis for the single violation found and the restitution awarded, it suffices to note that M.L. went to Weber Dental to have a partial denture replaced with a bridge. The bridge was never installed, and the implants that were suggested and installed later became infected. Ultimately, A.M. paid an additional $4550 to complete the work as well, an amount in addition to the responsibility she assumed in co-signing the $9000 loan with M.L.
With respect to U.G., the patient named in count twenty-one, the ALJ found gross negligence, repeated negligence, deficient care based on the absence of a treatment plan, adequate x-rays and informed consent. U.G. did not testify, but Dr. Condello examined her records and testified for the State. He found care given by Weber himself amounting to a “substantial” deviation from the standard of care, which he explained is the highest level of deviation recognized by the Board.
U.G. was treated by Weber and some of his associates in 2001 and 2002. In Dr. Condello's opinion, the substantial deviation was the grinding down of four of U.G.'s lower front teeth, which were healthy and done to address a cosmetic problem — the crookedness of the teeth — that could have been corrected with minor orthodontic work. He found another substantial deviation in the execution of the inappropriate plan. U.G. was left with four ill-fitting crowns that caused her teeth to be sensitive to cold and required installation of new crowns. In sum, healthy teeth were ground down to install crowns that left U.G. with the problem she wanted to correct. Her teeth were still crooked looking.
The last patient, J.E.S., Jr., saw Weber in March 2008. The ALJ found that Weber's care involved repeated acts of negligence.
On his first visit, Weber advised J.E.S. that three of his teeth needed crowns. Two permanent crowns were placed in April, but the third did not fit. The third crown was placed by another dentist in May 2008.
When J.E.S. went for a checkup in September 2009, decay was discovered under all three crowns. Consequently, they were removed and replaced for $1800. When the patient attempted to get his records, he was told that they had been shredded. In Dr. Condello's opinion, the crowns Weber installed had openings and were not fit “to seal the teeth from food, debris and bacteria,” and the open margins were another deviation from the standard of care.
B. The Board's Decision
In his written decision of November 4, 2011, the ALJ carefully summarized the evidence presented by the State and set forth the above concerning each patient. The ALJ credited the State's evidence, explaining that
each and every witness who appeared on behalf of [the State] was totally and completely credible, compelling and believable. [Weber's] former patients gave detailed testimony, recounting their experiences with either [Weber], his staff, or associate dentists. Dr. Condello[, the State's expert] who was also extremely credible, carefully explained his findings, using radiographs for purposes of illustration.
As to liability, the Board accepted “in their entirety” the ALJ's “findings of fact an conclusions of law.” The Board stated:
Dr. Weber ․ engaged in acts that violate the statutes and regulations governing the practice of dentistry, through his failure to create proper records, including failing to obtain adequate diagnostics, failing to sign chart entries, failing to create treatment plans or list options for treatment, and failing to provide records when requested in a timely manner. In addition, Judge Solomon found that Dr. Weber engaged in repeated acts of negligence and, as to patient U.G., a single act of gross negligence. Further, the judge found that Dr. Weber had engaged in fraud and professional misconduct regarding his actions related to patients' financing of their treatment through credit lines and loans, and in his failure to supervise his office staff in connection with these transactions. Finally, the Board accepted the findings that respondent failed to complete his continuing education requirements.
The Board elaborated:
What is clear is that Dr. Weber's conduct, as proved by the Attorney General, evinces a complete abdication of his professional responsibilities related to his practice and demonstrates a profound lack of respect for his patients and his license. Nothing in this record reviewed or in Dr. Weber's testimony has persuaded the Board that the sanction proposed by the [ALJ] should be modified or rejected, except in the limited manner[, which was to set the three-year period for reapplication and the amounts for restitution, fees and costs].
Persons who are privileged to hold a license to practice dentistry are expected to comport themselves with integrity, to treat patients within the standard of care, holding the interest of the patient paramount. The evidence demonstrated that Dr. Weber failed on both counts. Respondent knew of — and approved — the so-called “staff appreciation” program that motivated his staff, including [his office manager], to encourage patients to take loans and other financing arrangements to pay for dental care because the staff received rewards and other benefits for doing so. Patients were unaware of these practices.
[The ALJ] found that Dr. Weber gave a staff member incentives to have patients agree to have [a certain brand of] braces, even permitting the staff member to sign his name on orders for the appliances when he was not in the office. Patients were “sold” dentistry to generate income for the practice, rather than having a treatment plan that was in the best interest of the patient. Many patients did not fully understand the financial documents they had signed. Where loans were taken, the proceeds from the loans were immediately deposited into Dr. Weber's account. Patients who changed their minds or did not complete treatment, were often unable to obtain refunds of the funds paid to Dr. Weber. Calls were not returned; promises of refunds were empty. Patients were left with heavy debt on loans, often with high interest rates. In one case, it was only after a patient enlisted the aid of the local police that she was able to get her money back. In yet another, the mother of a patient was falsely induced into taking out two loans for her daughter's treatment. After she filed a complaint with the Board, Dr. Weber refused to treat her daughter until she signed a letter that praised him.
․ Dr. Weber's treatment was deficient in several respects, including his failure to take adequate diagnostic radiographs and his fabrication of ill-fitting crowns for several patients. He misrepresented the need for treatment to patient K.H. As to patient U.G., [the ALJ] found a gross deviation from the standard of care because respondent prepared her otherwise healthy teeth for crowns for cosmetic purposes, instead of using minor orthodontic treatment with braces or bands. Most patients testified that they had to go to other dentists to complete or correct the treatment performed by Dr. Weber.
The Board concluded:
The Board does not lightly revoke a license and assess substantial civil penalties and costs and fees. Here, however, we are confronted with a dentist who chose to use his license not for the benefit of his patients, but for his own gain. While his abuse of drugs and alcohol may have contributed to his loss of control over his practice in 2005 and 2006, a fact that in no way excuses his conduct, even after he claims to have gained sobriety, respondent continued to fail to treat patients within the standard of care. He did not stop the abuses related to patient financing arrangements. He failed to meet the obligations of a licensee to respond to Board requests for information and to take required continuing education.
Even now, Dr. Weber's demeanor and testimony in mitigation give the Board significant pause that he is capable of practicing in a manner consistent with the public health, safety, and welfare.
Appellate review of a professional board's disciplinary action is limited. In re License Issued to Zahl, 186 N.J. 341, 353 (2006). In recognition of the professional boards' expertise and special knowledge and their statutory obligation to regulate the licensed profession, that deference is appropriate. Ibid.; see, e.g., N.J.S.A. 45:1–15 (granting the Board of Dentistry disciplinary authority over its licensees).
The Legislature has granted this Board broad authority to regulate the practice of dentistry. N.J.S.A. 45:6–1 to –73. It is authorized to license, N.J.S.A. 45:6–3, set standards for continuing education, N.J.S.A. 45:6–10.2, and promulgate rules and regulations for the practice of dentistry, N.J.S.A. 45:6–19 to –21. The Uniform Enforcement Act (UEA), N.J.S.A. 45:1–14 to –27, provides standards for license revocation, suspension and imposition of other sanctions, such as restitution, N.J.S.A. 4:1–22d, civil penalties, N.J.S.A. 45:1–25a, and fees and costs, N.J.S.A. 45:1–25d.
Pursuant to N.J.S.A. 45:1–21, the Board is authorized to suspend or revoke a license on proof of violations of the sort found by the ALJ and the Board. The grounds enumerated in N.J.S.A. 45:1–21 and pertinent here are that Weber
b ․ engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense;
c ․ engaged in gross negligence, gross malpractice or gross incompetence which damaged or endangered the life, health, welfare, safety or property of any person;
d ․ engaged in repeated acts of negligence, malpractice or incompetence;
e ․ engaged in professional or occupational misconduct as may be determined by the board;
f ․ engaged in acts constituting, any crime or offense involving moral turpitude or relating adversely to the activity regulated by the board ․; [and]
h ․ violated or failed to comply with the provisions of any act or regulation administered by the board․
The violations must be proven by a preponderance of the evidence. Polk, supra, 90 N.J. at 560. The testimonial evidence, credited by the ALJ, was adequate to establish the violations found here. As the Supreme Court stated in Polk, “One of the stated statutory justifications for license revocation is a pattern of conduct including repeated acts of malpractice. N.J.S.A. 45:1–21d.” 90 N.J. at 577. Moreover, the Court has upheld, as “within the bounds of [the Board of Medical Examiners'] statutory authority and discretion,” a determination that a series of “ ‘dishonest acts committed by’ ” a doctor “warrant[ed] the revocation of his license.” Zahl, supra, 186 N.J. at 354.
Based on our review of the record, the law and the decisions of the ALJ and the Board, we have no question that the Board's determinations are supported by “sufficient credible evidence on the record as a whole.” R. 2:11–3(e)(1)(D). We affirm for that reason and because we are confident that the Board followed the law and its regulations governing grounds for revocation and sanction, “consider[ed] all factors relevant to continued licensure” and “meticulously weigh[ed] the public interest and the need for the continued [dental] services ․ against the countervailing concern that society be protected from professional ineptitude” and deceptive overreaching. Polk, supra, 90 N.J. at 578–79; see also Zahl, supra, 186 N.J. at 354.
Because the financial obligations imposed by the Board are without question significant, we discuss them briefly. True, these sanctions are significant, but so were the amounts Weber received from advance payments made by patients and the sale of his practice. On the other side, the costs incurred by the patients who were victimized by the deceptive practices, double-billings and refusals to refund were significant and those the State found in the investigation and litigation were also significant.
The Board considered and rejected the testimony and evidence Weber provided in mitigation, which he did not support with documentation of his reportedly dire financial condition or with citations to the record developed in the OAL. Given the evidence, there is no basis to find error in that regard.
Courts disturb sanctions imposed on a licensee by a professional board only when the sanctions exceed the Board's authority, reflect a mistaken exercise of discretion or are shockingly inconsistent with fairness. Zahl, supra, 186 N.J. at 354. None of those grounds is apparent here. The statutory provisions authorizing imposition of restitution, civil penalties, and costs and fees provide standards, N.J.S.A. 45:1–22d and N.J.S.A. 45:1–25a and d. While neither the ALJ nor the Board explained the aggregate civil penalty in the amount of $250,000, that aggregate penalty is well within the statutory schedule. As previously noted, the ALJ found sixty-eight violations. Subsection a of N.J.S.A. 45:1–25 provides:
Any person who engages in any conduct in violation of any provision of an act or regulation administered by a board shall, in addition to any other sanctions provided herein, be liable to a civil penalty of not more than $10,000 for the first violation and not more than $20,000 for the second and each subsequent violation. For the purpose of construing this section, each act in violation of any provision of an act or regulation administered by a board shall constitute a separate violation and shall be deemed a second or subsequent violation under the following circumstances:
(1) an administrative or court order has been entered in a prior, separate and independent proceeding;
(2) the person is found within a single proceeding to have committed more than one violation of any provision of an act or regulation administered by a board; or
(3) the person is found within a single proceeding to have committed separate violations of any provision of more than one act or regulation administered by a board.
Even if one were to consider no violations other than the seventeen based on acts of deception or dishonesty, N.J.S.A. 45:1–21(b), an aggregate penalty of $250,000 would not exceed the penalties authorized by N.J.S.A. 45:1–25a for these separate violations found with a single proceeding. N.J.S.A. 45:1–25a(3).
For all of the foregoing reasons, we affirm.
We have not yet addressed the issues Weber raises on this appeal. They are not easily identified.
Weber's only submission, other than his notice of appeal and case information statement, is in the form of a certification. That certification includes expressions of his intention to file a “full brief” if the parties should be unable “to find a settlement to this and put this to rest,” which he wished to do “prior to long [b]riefs.” 5 Weber did not file an additional brief, however.
To the extent Weber's submission might be considered a letter brief authorized by paragraph (b) of Rule 2:6–2, it does not comply with that Rule. Pursuant to paragraph (b), a letter brief must meet the requirements for a formal brief that are set forth in “subparagraphs (1), (3), (4) and (5)” of Rule 2:6–2(a). Specifically, a letter brief must include a table of contents, a procedural history with references to the record, a statement of facts supported by references to the record, and legal argument divided under appropriate point headings. Ibid. Weber's submission does not have a single one of those features.
Despite the deficiencies, we have determined to address the merits rather than dismiss the appeal. Because the clerk of this court filed the brief, and the Board did not move to strike it, we deemed the sanction of dismissal inappropriate. Accordingly, as the discussion in Section II of this opinion indicates, we have reviewed the Board's determination in accordance with the applicable standards of review and determined that the Board's order should be affirmed.
That said, we address the issues Weber raised as we understand them. The primary claim is based on the failure of the attorney who represented him in the OAL to file a written summation at the conclusion of the hearing in the OAL and prior to the ALJ's initial decision. On that ground, Weber contends that he is entitled to relief based on ineffective assistance of counsel, and he refers us to opinions addressing the remedy for ineffective assistance in criminal cases.
To date our Supreme Court has considered relief based on ineffective assistance of counsel only in criminal and quasi-criminal prosecutions and cases involving termination of parental rights. N.J. Div. of Youth & Family Servcs. v. B.R., 192 N.J. 301, 306–07 (2007); State v. Fritz, 105 N.J. 42, 49–53 (1987). In both contexts, the Court has directed application of the same standard enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). See B.R., supra, 192 N.J. at 304–05 (adopting the standard for termination cases); Fritz, supra, 105 N.J. at 58 (adopting the standard for criminal cases).
To obtain relief based on ineffective assistance, the litigant must demonstrate “(1) counsel's performance must be objectively deficient—i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense—i.e., there must be ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” B.R., supra, 192 N.J. at 307 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 697).
Even if we were to conclude that a claim of ineffective assistance is available on appeal of the revocation of a professional license, Weber would not be entitled to relief under the Strickland standard. Accordingly, we deny relief on that ground and express no opinion on the constitutional question, which we need not address to resolve this case.
Weber's only complaint about his attorney is that he did not file a written summation at the conclusion of the OAL hearing and prior to the ALJ's decision. Weber acknowledges that his attorney who represented him throughout the OAL hearing was “good at trial.” As he acknowledges, that is apparent from the transcripts, and, having read the transcripts, we see no reason to disagree.
Weber was represented well by counsel throughout the OAL hearing, which concluded on June 27, 2011. But there is no dispute that neither Weber nor his attorney filed a written summation by the date due, October 7, 2011. Moreover, neither sought leave to file a written summation during the one-month interval between the October 7 deadline and the issuance of ALJ's initial decision on November 4, 2011. And, Weber never sought a remand from the Board for the purpose of filing a written summation.
The problem for Weber is that his premise — that a written summation would have changed the outcome — is flawed. The ALJ's decision, as that decision plainly states, is an initial decision, which the Board may adopt, modify or reject in light of its review of the record and any exceptions filed by the parties. N.J.S.A. 52:14B–10(c). This court reviews the Board's determination, not the ALJ's initial decision. The ALJ's decision is discussed here because the Board adopted it. Weber could have presented any objection to the ALJ's findings, by way of exception to the ALJ's decision. Without suggesting that summations in the context of an OAL hearing are meaningless, given the relationship between the ALJ's decision and the Board's final determination, a summation to an ALJ does not have the same critical importance as a summation to a jury in a criminal trial.
In short, with respect to argument on the significance of the evidence presented, Weber had an opportunity to present them to the Board by filing exceptions. Indeed, the ALJ's written decision advised that the parties had thirteen days from the date his decision was mailed to file written exceptions with the Board. See N.J.A.C. 1:1–18.4(a) (setting the thirteen-day period for filing exceptions).
In this case, the Board made extraordinary efforts to allow Weber to file exceptions. The Board first considered the case at its December 7, 2011 meeting. On that date, the Board adopted the ALJ's findings and conclusions and set a schedule for the State to submit its application for restitution, fees and costs.
Although the Board had sent notice of the December 7 meeting directly to Weber at his address of record, the Board was concerned that Weber had not responded or appeared. Accordingly, although service had been made in accordance with the Board's rules, the Board endeavored to permit him to be heard. The Board sent Weber a December 9, 2011 letter authorizing him to submit exceptions to the ALJ's decision by December 19. In that letter the Board also advised Weber that it would finalize the matter at its meeting on February 1, 2012.
Although Weber did not respond, the Board did not leave it at that. “[I]n a final effort to ensure that Dr. Weber had an opportunity to address the matter,” the Board asked the State to attempt to find him. The State did that, and the Board directed personal service. In addition, the Board adjourned its consideration of Weber's case until service was accomplished. Weber was personally served on February 6, 2012, and when served he was given written notice that the Board would make its final decision on February 15. The personal service triggered a response. On February 13, Weber contacted the Board and indicated that he previously was unaware of the post-hearing proceedings and thought he was still represented by the lawyer who had represented him in the OAL.
Weber offered several explanations. He claimed to believe that his attorney had obtained an extension to file summations with the ALJ because Weber had been hospitalized for “P.T.S.D.” in September. And he asserted that he was “penny less” because of his legal fees and was not aware that his attorney was no longer representing him until he received the Board's letter. Subsequently, the lawyer who represented Weber in the OAL contradicted his former client's assertions. By letter dated February 15, 2012, Weber's attorney provided a copy of July 21, 2011 letter he wrote Weber asking his client to contact him about fees for a transcript of the OAL hearing that he needed to prepare written summations. With that letter, the lawyer provided Weber a copy of a letter from the transcriber indicating that the check Weber's wife, Barbers, had written as a deposit for the transcript had been returned for insufficient funds. The lawyer also noted that he would need to pay a law clerk $5000 to assist him with the summations. According to the lawyer, Weber told him he would proceed pro se.
Due to the conflicting accounts of Weber and his attorney, the Board granted Weber an additional extension, which the State did not oppose. By letter of February 24, 2012, the Board gave Weber until March 15 to file exceptions, and the Board offered to make a copy of the transcripts and the documentary evidence available at no cost to Weber. Thus, Weber had over a month to prepare exceptions from the time he first contacted the Board.
Weber did not take advantage of this additional opportunity to file exceptions. Instead, ten days past the extended deadline, Weber sent a letter to the Board confirming that he would appear at the hearing on April 4 and advising that he would be sending documentation to the Board. Weber appeared for the hearing without having sent any exceptions or any documentation. Because no exceptions were filed, the Board did not allow oral argument on liability.
The Board did, however, permit Weber to address the Board in support of his request for a mitigation of the penalty. The Board considered Weber's explanation for his behavior, which focused on his problems with alcohol and drugs, his hospitalization for mental problems following the OAL hearing, and his alleged financial difficulty, which he did not document.
In short, because Weber had more than ample opportunity to submit any exception he had to the Board, he simply cannot show that the Board's decision would have been different if his attorney had filed a written summation with the ALJ. More importantly, Weber has not pointed to anything in the record that could have been argued to the ALJ that would have altered the initial decision.
We have read Weber's submission liberally and considered factual objections to the Board's determination as if mentioned to demonstrate prejudice from the absence of a written summation. There is none that would have changed the ALJ's or the Board's decision.
Weber refers to admission of an unsigned agreement of sale for the practice, but the agreement provided on appeal as part of the record is signed and was admitted as a joint exhibit. Moreover, Weber's argument based on the provision of that agreement related to the $100,000 escrow fund is not supported by terms of that provision.
Weber objects to the ALJ's findings with respect to several patients, noting that other doctors did all or some of the work. Addressing them in turn, the violations found by the ALJ with respect to L.V. were based solely on a $552 charge for a crown that L.V. did not receive and Weber's refusal to address her request for a refund. Weber claims that B.J. was treated by someone other than him, but B.J. was treated in 2004, long before Weber sold his practice. Moreover, the violations found with respect to B.J. are based solely on charges and payments for permanent veneers that were never installed. Weber attempts to shift the blame for violations related to W.R. to another dentist. Again, the violations concerning this patient were fraudulent and deceptive practices and professional misconduct related to permanent veneers that were never installed.
Weber complains about another patient P.J., but the ALJ dismissed the count related to P.J. With respect to M.N., Weber argues that his staff handled her case properly. Given that M.N. was promised a refund for wrong-colored veneers she did not receive and bleach trays that did not fit and would not address her problem, this claim is baseless.
Weber stresses that S.M. testified that the poor care she received was provided by others and was not Weber's fault, but that testimony does not undermine the violation found by the ALJ, which concerned nothing other than Weber Dental's failure to have a treatment plan for this patient. As noted previously, Weber recognized his responsibility for the care of Weber Dental's patients while he owned the practice, and S.M. was treated, with no plan, before Weber sold the practice.
Similarly, Weber's effort to assign fault for U.G.'s treatment to others is not supported by the record. The record established that Weber did all of the work with the exception of the installation of one crown. Weber defends the care received by K.H., but the violations found regarding this patient were related to fraud amounting to misconduct, not the quality of the care.
With respect to C.G., Weber simply asserts facts, not supported by the record, that would, if true, contradict the witness's testimony. Because the facts were not in evidence, the point is not one that could have been raised in summation.
Finally, Weber objects to the manner in which the deputy attorney general presented the case in the OAL. These claims have insufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
1. FN1. The Board's efforts to provide Weber an opportunity to file exceptions to the ALJ's initial decision, which he did not take, are discussed in Section III of this opinion.
2. FN2. At the Board's direction, the State filed and served separate submissions on restitution and fees and costs with the Board. Those submissions are not included in the record provided on appeal. Because Weber presents no argument concerning the amount of restitution awarded to any patient or the amount of fees and costs payable to the State, we have not asked the State to supply them.
3. FN3. The amended complaint included allegations involving twenty-two different patients, but the ALJ found no violations related to four. The ALJ dismissed, for failure of proof, two counts involving patients that were not supported by testimony — count eleven, patient P.J., and count eighteen, patient R.R. And with respect to two other patients, J.N., named in count fifteen, and D.P., named in count sixteen, the ALJ made no factual findings.In addition, the ALJ dismissed, as a matter of law, multiple charges alleging that Weber's conduct demonstrated a lack of “good moral character” contrary to N.J.S.A. 45:6–3. In the ALJ's view, absence of “good moral character,” which an applicant must demonstrate to qualify for a license, N.J.S.A. 45:6–3, was not a ground for disciplinary action pursuant to N.J.S.A. 45:1–21. But see In re Polk, 90 N.J. 550, 576 (1982) (holding that lack of “good moral character” required for licensure “can be considered a continuing requirement”). The Board, however, did not reverse the ALJ's dismissals.
4. FN4. The Board did not enumerate the separate violations. It summarized them as follows:Taken as a whole, the facts found by [the ALJ] and adopted by the Board, fully support the determination that Dr. Weber engaged in repeated acts of negligence, malpractice or incompetence in violations of N.J.S.A. 45:1–21(d) and in an act of gross negligence, gross malpractice or gross incompetence in violation of N.J.S.A. 45:1–21(c); that Dr. Weber failed to comply with statutes and regulations governing the practice of dentistry (record keeping, continuing education, duty to co-operate with Board inquiries) in violation of N.J.S.A. 45:1–21(h); and that Dr. Weber engaged in professional misconduct based on his callous and deceptive conduct toward his patients and his lack of supervision and control over his office in violation of N.J.S.A. 45:1–21(e).
5. FN5. Weber, pro se, filed the notice of appeal on June 19, 2012. On September 26, 2012, he filed a motion to proceed on abbreviated transcripts or transcripts provided at no cost to him. The Board opposed the motion but offered to make the transcripts available. A judge denied the motion by order of October 18, 2012, explaining: “The Board of Dentistry is in possession of the transcripts and has offered to make them available to movant upon condition he make payment of a copying charge pursuant to N.J.S.A. 45:1A–5.”Subsequent case notes maintained in the office of the clerk of this court reflect the following. Weber filed his submission on February 12, 2013, and was contacted by a staff member on February 20, 2013 and advised it was deficient. Weber indicated that he would “get back to” the staff member if the case settled and, if it did not settle, file a brief. On April 2, 2013, the staff member contacted Weber again and left a message about the deficiencies. Nevertheless, because the Deputy Attorney General representing the Board agreed to file a complete appendix, Weber's submission was filed as a brief despite the non-compliance. Nothing in the court's records indicates that Weber had any subsequent contact with the court or the clerk's office.