IN RE: THE SUSPENSION OR REVOCATION OF THE LICENSE OF (2011)

Chowdhury Azam, a psychiatrist, appeals from a decision of the New Jersey State Board of Medical Examiners suspending his license to practice medicine.   Following a hearing in the Office of Administrative Law (OAL) on a complaint filed by the Attorney General and contested by Azam, the Board determined that Azam violated N.J.A.C. 13:35-6.3(h), which prohibits a licensee from sexually harassing a patient, and N.J.A.C. 13:35-6.3(c), which prohibits a licensee from having sexual contact with a patient.   Pursuant to N.J.A.C. 13:35-6.3(j), sexual harassment and sexual contact “constitute gross or repeated malpractice” and “professional misconduct” warranting denial, suspension or revocation of a license under N.J.S.A. 45:1-21(c)-(e) and sanctions authorized by N.J.S.A. 45:1-25.   Accordingly, the Board also found that gross and repeated malpractice and professional misconduct were established.   As authorized by N.J.S.A. 45:1-25, the Board awarded the State $27,263.05 for costs and fees and, because this was Azam's second suspension,¹ imposed a $15,000 civil penalty.   We affirm substantially for the reasons stated by the Board in its written decision of September 8, 2010.

The administrative charges against Azam were filed after one of Azam's patients reported his conduct to the police.   He was also indicted and charged with criminal sexual contact, N.J.S.A. 2C:14-3b, but a jury acquitted him of that crime.

The evidence presented at the administrative hearing can be summarized as follows.   The patient was seeing Azam for psychotherapy to address an addiction to medications prescribed for her chronic neck and back pain.   Between her first and last sessions, a surgeon removed a cyst from her breast.

According to the patient, during one psychotherapy session, Azam asked her to expose her breast and display her surgical scar.   At the end of her next and final session with Azam, the patient stood to leave, but Azam told her that she looked stressed and asked her to sit down.   Azam then approached the patient and, without her consent, massaged her shoulders and placed his hand under her clothing and grabbed her breast.

Although Azam testified that the patient spontaneously exposed her breast and that he touched her by mistake or accident when conducting a physical examination, he made statements in phone conversations with the patient and to the police that undermine his account.   Indeed, there was evidence that Azam had made statements suggesting otherwise in a telephone conversation with the victim and during a post-arrest interview that were recorded and admitted into evidence.

During conversations with the patient after the incident, Azam apologized, admitted his attraction and acknowledged his weakness.   He told her that he felt sorry for her and “kind of lost it.”

After his arrest, Azam was asked about his apology.   He explained that it was an apology for touching the patient's shoulder.   He denied having touched her breast, but he followed that denial with a demonstration of how such a touching could happen “accidentally” or by “mistake” while he massaged her neck.   In his testimony at the administrative hearing, however, Azam denied massaging the patient and explained that he touched her while performing trigger-point examinations for fibromyalgia.

The Administrative Law Judge (ALJ) found the patient's testimony credible and discredited Azam's denial and explanation.   For reasons set forth in the Board's opinion, its members accepted the ALJ's findings and rejected Azam's exceptions to the ALJ's resolution of questions dependent on credibility.   The Board agreed with and adopted the ALJ's determination that Azam's asking the victim to display the scar on her breast, massaging of her shoulders and placing his hand under her clothing to touch her breast were inappropriate.   Relying on their professional expertise and training, the Board agreed that his conduct could not be explained with reference to the treatment the patient sought from Azam and amounted to sexual harassment and sexual contact constituting gross or repeated malpractice and professional misconduct.   The Board permitted Azam to present evidence in mitigation of his penalty but declined to follow the ALJ's recommendation for a one-year suspension and concluded that a five-year suspension was warranted.

On Appeal Azam argues:

I.  THE ALJ'S EXPLANATION OF HER

CREDIBILITY DETERMINATIONS WAS INADEQUATE AND IN DIRECT CONFLICT WITH THE EVIDENCE ADDUCED.

II. THE BOARD ABUSED ITS DISCRETION IN

RELYING UPON THE ALJ'S FINDINGS, IN THAT THEY WERE NOT SUPPORTED BY THE EVIDENCE AND WERE CONTRARY TO LAW.

III. THE BOARD ERRED IN FAILING TO REMAND

THE ACTION TO THE OFFICE OF ADMINISTRATIVE LAW, IN LIGHT OF MATERIALLY INCONSISTENT STATEMENTS MADE BY THE COMPLAINING WITNESS IN THE ADMINISTRATIVE PROCEEDING AND IN DR. AZAM'S CRIMINAL TRIAL.

IV. THE BOARD FAILED TO GIVE CONSIDERATION

TO DR. AZAM'S ACQUITTAL IN THE CRIMINAL TRIAL.

V. THE PROSECUTING COUNSEL ENGAGED IN

SERIOUS MISCONDUCT DURING THE HEARING

BEFORE THE ALJ.

We first address the objection raised in Point IV. Azam claims the Board should have considered the fact that he was acquitted of criminal sexual contact.   He overlooks the obvious difference in the burden of proof applicable in administrative and criminal proceedings and the difference in the elements required to establish the regulatory and criminal offenses.

Criminal sexual contact “means an intentional

touching ․ for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.”  N.J.S.A. 2C:14-1d (emphasis added).   In contrast, the Board's regulation defines sexual contact to include “the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensee's own prurient interest or for sexual arousal or gratification.”  N.J.A.C. 13:35-6.3(b)(4) (emphasis added).   Thus, proof of a prohibited purpose beyond a reasonable doubt is required to establish criminal sexual contact but not sexual contact prohibited by the regulation.   Accordingly, the Board did not err by discounting the significance of Azam's acquittal.

Azam's remaining objections to the Board's determinations “are without sufficient merit to warrant discussion in a written opinion.”   R. 2:11-3(e)(1)(E).   The arguments raised in Points I and III are adequately addressed in the Board's decision.   We reject the argument presented in Point II because the Board's decision “is supported by sufficient credible evidence in the record as a whole.”   R. 2:11-3(e)(1)(D).

We also reject Azam's claim of prejudice based on misconduct on the part of the State's attorney.   The Board's decision demonstrates its members' careful and impartial consideration of the evidence;  it leaves us with no doubt that any impropriety in the arguments presented by the State's attorney was harmless.   R. 2:10-2.   In short, the Board members were not inflamed or distracted and Azam received a fair hearing and decision based on the evidence.  State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996).

Affirmed.

FOOTNOTES

FN1. In 1998 the Board suspended Azam's license for two years because he failed to disclose a prior criminal conviction when he applied for his license..  FN1. In 1998 the Board suspended Azam's license for two years because he failed to disclose a prior criminal conviction when he applied for his license.

PER CURIAM