Opinion
DOCKET NO. A-0399-14T1
02-04-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. FADI BEJJANI, Defendant-Respondent.
Sahil Kabse, Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. Kabse, on the brief). Edmund DeNoia argued the cause for respondent (Critchley, Kinum & Vazquez, LLC, attorneys; Mr. DeNoia, of counsel and on the brief; Michael Critchley, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 13-04-00491. Sahil Kabse, Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Morris County Prosecutor, attorney; Mr. Kabse, on the brief). Edmund DeNoia argued the cause for respondent (Critchley, Kinum & Vazquez, LLC, attorneys; Mr. DeNoia, of counsel and on the brief; Michael Critchley, on the brief). PER CURIAM
By leave granted, the State appeals from the Law Division's August 14, 2014 order dismissing count one of Morris County Indictment No. 13-04-00491. For the reasons that follow, we reverse.
I.
On May 16, 2013, a Morris County grand jury issued Indictment No. 13-04-00491 against defendant Fadi J. Bejjani, charging him with two counts of third-degree unlicensed practice of medicine. Specifically, count one charged defendant with violating N.J.S.A. 2C:21-20(a) by engaging in the practice of medicine while his medical license was suspended. Count two, which was not dismissed by the trial court and is not part of this appeal, charged defendant with violating N.J.S.A. 2C:21-20(c) by holding himself out as a medical doctor while his license was suspended.
The following facts are derived from the grand jury testimony of Detective Harrison Dillard of the Morris County Prosecutor's Office. Defendant is a medical doctor licensed by the State of New Jersey and practices at Advanced Minimally Invasive Surgery (AMIS), a medical facility located in Parsippany. On June 5, 2012, the New Jersey State Board of Medical Examiners (Board) filed a complaint charging that defendant's continuing practice of medicine presented a danger to the public. Defendant then entered into an Interim Consent Order, effective June 13, 2012, in which he agreed to temporarily suspend his practice of medicine pending a hearing on the administrative charges.
The Consent Order, admitted in evidence before the grand jury, barred defendant from "charg[ing], receiv[ing] or shar[ing] in any fee for professional services rendered by him, herself [sic] or others while barred from engaging in the professional practice." It also required him to "immediately return his original New Jersey medical license" to the Board. The Consent Order explicitly states that it "does not constitute an admission by or finding against [defendant]." Defendant's license remained suspended as of the date of the grand jury hearing.
In July 2012, the Division of Consumer Affairs-Enforcement Bureau (Division) began an undercover investigation of defendant's activities. On July 19, 2012, Division Investigator Amisson called AMIS, requested a consultation with defendant, and scheduled an appointment with him for July 26, 2012. On that date, Amisson, accompanied by Division Investigator Murray posing as her mother, went to the AMIS office where Amisson completed patient information forms on which she listed "saggy breasts" as the reason for her visit. Amisson paid a $250 consultation fee and was told that it would be applied toward the cost of the procedure.
The record does not contain the first names of the Division Investigators.
Investigators Amisson and Murray were brought to an examination room, where Amisson complied with instructions to undress from the waist up and put on a gown provided to her. Dr. Azer then entered the room, and advised Amisson that he specialized in breast surgery. Amisson informed Dr. Azer that she was there specifically to see defendant. Defendant eventually entered the examination room and spoke with Amisson, informing her that his area of expertise was "tummy tucks." After defendant explained the tummy tuck procedure, Amisson told defendant that she would like to have that surgery done along with the breast lift procedure.
Defendant then examined and took measurements of Amisson's breasts and stomach area. Defendant advised Amisson that he could perform the tummy tuck surgery but that he did not think she necessarily needed it. When Amisson expressed continued interest and asked who would perform the surgeries, defendant replied that he and Dr. Azer would perform them at the same time to reduce the amount of time she would spend under anesthesia. Amisson then asked what steps were necessary to schedule the surgeries as soon as possible. Defendant informed her that she would need to meet with an internist, fill out some treatment consent forms, and that the surgery could be completed within a couple weeks. Amisson was quoted a total price of approximately $15,000 for both surgeries.
On February 10, 2014, defendant moved to dismiss the indictment. Relevant to this appeal, defendant argued that insufficient evidence was presented to the grand jury to support the indictment. On July 8, 2014, the court heard oral argument and reserved decision on defendant's motion. The judge then issued a written opinion on August 14, 2014, granting the motion to dismiss count one, but declining to dismiss count two. Essentially, the court reasoned that the grand jury testimony was sufficient to establish that defendant held himself out as eligible to practice medicine under N.J.S.A. 2C:21-20(c). However, those proofs failed to establish that defendant actually rendered any treatment, which the court deemed fatal to the State's claim that defendant engaged in the unlicensed "practice of medicine" under N.J.S.A. 2C:21-20(a).
This appeal followed. The State presents a single argument for our consideration:
THE STATE PRESENTED PRIMA FACIE EVIDENCE TO THE GRAND JURY TO ESTABLISH DEFENDANT VIOLATED N.J.S.A. [2C:]21-20(A) AND (C).
II.
An indictment must allege all of the essential facts of a crime to be considered "sufficiently stated;" however, "even if an indictment appears sufficient on its face, it cannot stand if the State failed to present the grand jury with at least 'some evidence' as to each element of its prima facie case." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997) (quoting State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984), certif. denied, 101 N.J. 224 (1985)). The evidence required to properly indict does not have to rise to the level of being sufficient to convict, "but merely sufficient to determine that there is prima facie evidence to establish that a crime has been committed." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27, certif. denied, 97 N.J. 688 (1984).
In determining whether the evidence is sufficient to sustain an indictment, "every reasonable inference is to be given to the State." Ibid. Thus, the burden on a motion to dismiss an indictment is upon the defendant who challenges the sufficiency of the evidence. State v. McCrary, 97 N.J. 132, 142 (1984). Upon a motion to dismiss, the court must determine "whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006).
"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." N.J. Trade Waste Ass'n, supra, 96 N.J. at 18-19 (quoting State v. Weleck, 10 N.J. 355, 364 (1952) (citations omitted)). Additionally, "[s]uch discretion should not be exercised except on 'the clearest and plainest ground' and an indictment should stand 'unless it is palpably defective.'" Ibid. Further, "a trial court's exercise of this discretionary power will not be disturbed on appeal 'unless it has been clearly abused.'" State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (quoting Weleck, supra 10 N.J. at 364 (citations omitted)); see also State v. Hogan, 144 N.J. 216, 228-29 (1996) (holding that the trial court has the discretion to decide whether to dismiss an indictment and that the trial court's decision should not be disturbed on appeal unless there has been a clear abuse of discretion), certif. denied, 149 N.J. 142 (1997).
III.
Defendant is charged under N.J.S.A. 2C:21-20, which provides in relevant part:
A person is guilty of a crime of the third degree if he knowingly does not possess a license or permit to practice medicine and surgery or podiatric medicine, or knowingly has had the license or permit suspended, revoked or otherwise limited by an order
entered by the State Board of Medical Examiners, and he:
a. engages in that practice; [or]
. . . .
c. holds himself out to the public or any person as being eligible to engage in that practice;
[N.J.S.A. 2C:21-20.]
Neither N.J.S.A. 2C:21-20 nor any other section of the New Jersey Code of Criminal Justice define the term "practice of medicine." The Model Jury Charges similarly contain no definition of that term. When a statutory term is not defined in the Criminal Code, we "ascribe to those words their ordinary meaning in common usage and read them in context with related provisions to give sense to the legislation as a whole." State v. Lyons, 417 N.J. Super. 251, 260 (App. Div. 2010) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
In determining whether defendant's actions constituted the practice of medicine, the trial court sought guidance in N.J.S.A. 45:9-5.1, which provides that:
the phrase "the practice of medicine or surgery" and the phrase "the practice of medicine and surgery" shall include the practice of any branch of medicine and/or surgery, and any method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition, and the term "physician and surgeon" or "physician or surgeon" shall be deemed to
include practitioners in any branch of medicine and/or surgery or method of treatment of human ailment, disease, pain, injury, deformity, mental or physical condition.
[N.J.S.A. 45:9-5.1.]
The judge then concentrated his analysis on the reference to "treatment" in N.J.S.A. 45:9-5.1. Citing the Merriam-Webster Collegiate Dictionary, the court noted that "'[t]reatment' is commonly defined as: 'The act or manner or an instance of treating someone or something[;]' '[t]he techniques or actions customarily applied in a specified situation;' '[a] substance or technique used in treating;' and '[a]n experimental condition'" (citation omitted). In finding the State's proofs insufficient as to count one, the court concluded:
[] there was absolutely no evidence presented to the [g]rand [j]ury that [] [d]efendant actually performed or attempted to perform a "tummy tuck," any other procedure, or any other act which may have constituted the "treatment of a human ailment, disease, pain, injury, deformity, mental or physical condition." N.J.S.A. 45:9-5.1. The only evidence that was presented to the [g]rand [j]ury was that [] [d]efendant took measurements of Investigator Amisson and talked to her about potentially scheduling surgery. These facts are insufficient to establish "treatment," which is required to support the element of "practice of medicine" pursuant to N.J.S.A. 45:9-5.1 and N.J.S.A. 2C:21-20(a).
In the present case, the motion judge properly determined that "the term 'practice of medicine' is not overly complex, and therefore, a lay grand juror could determine whether the State presented a prima facie case that [] defendant committed the crime of [u]nauthorized [p]ractice of [m]edicine." As the judge noted, the grand jury did not ask for a definition of "practice of medicine." The judge also properly recognized that "[i]ncomplete or imprecise legal interpretations will not warrant dismissal of the indictment." State v. Laws, 262 N.J. Super. 551, 562 (App. Div.), certif. denied, 134 N.J. 475 (1993).
Where we part company with the motion judge is in his conclusion that the evidence presented to the grand jury is "insufficient to establish 'treatment,' which is required to support the element of 'practice of medicine' pursuant to N.J.S.A. 45:9-5.1 and N.J.S.A. 2C:21-20(a)." We conclude that the trial court's interpretation of the term "practice of medicine" as necessarily requiring actual patient treatment was unduly restrictive. Rather, courts have recognized that a physician owes a duty of care to a patient when conducting an examination or rendering a diagnosis, even when no treatment is provided.
Thus, for example, in the medical malpractice context we have held that a physician retained to examine a claimant for social security disability benefits owes a duty to the examinee to exercise reasonable professional care in rendering a diagnosis. Ranier v. Frieman, 294 N.J. Super. 182, 184 (App. Div. 1996). See also Reed v. Bojarski, 166 N.J. 89, 91 (2001) (holding that a physician, retained to perform a pre-employment physical examination, has a non-delegable duty to inform the patient of a potentially serious medical condition). Implicit in these decisions is that in examining and diagnosing patients, these physicians were engaged in the practice of medicine, notwithstanding the absence of any subsequent treatment.
See also Pinkus v. MacMahon, 129 N.J.L. 367, 368-69 (Sup. Ct. 1943) (holding, under a predecessor statute, that an individual engaged in the unlicensed practice of medicine when he diagnosed ailments and conditions and gave advice as to diet).
Here, defendant conducted an examination and took measurements of Amisson's breast and stomach area. He also rendered an opinion that the "tummy tuck" was not necessary, and when she opted to go forward defendant counseled her as to the procedures involved in scheduling the surgery. Amisson paid a $250 consultation fee that was to be applied toward this surgery. Consistent with the cases cited above, we hold that conducting an examination and rendering a diagnosis comfortably fit within the common understanding of "the practice of medicine."
In prohibiting the practice of medicine by an unlicensed person, N.J.S.A. 2C:21-20 is plainly designed to protect the public health, safety, and welfare. See In re Polk, 90 N.J. 550, 571-72 (1982) ("the daily practice of medicine concerns life and death consequences to members of the public" (citations omitted)). Such laudatory public purpose is hardly served if an unlicensed individual can circumvent the statutory proscription by simply conducting an examination and rendering a medical opinion. Indeed, we can well envision scenarios where a flawed examination, and/or an improper diagnosis, unaccompanied by any treatment or recommendation of treatment, may result in dire consequences to an unwitting patient's health and safety. Clearly the legislature, in enacting N.J.S.A. 2C:21-20, could not have intended such result.
In Polk, a physician was subject to discipline for sexually abusing patients while conducting physical examinations.
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Having viewed the evidence presented to the grand jury and the reasonable inferences that flow from it in the light most favorable to the State, as we must, we are satisfied that a grand jury could reasonably believe that by engaging in the described activities, defendant practiced medicine while his license was suspended. Accordingly, the motion judge abused his discretion in dismissing count one of the indictment.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION