State Board of Medical Examiners
Open Disciplinary Minutes
June 11, 2008

A meeting of the New Jersey State Board of Medical Examiners was held on Wednesday, June 11, 2008 at the Richard J. Hughes Justice Complex, 25 Market Street, 4th Floor Conference Center, Trenton, New Jersey for Disciplinary Matters Pending Conclusion, open to the public. The meeting was called to order by Ms. Karen Criss, Chairperson for Open Disciplinary Matters.

PRESENT

Board Members Cheema, Criss, Criscito, Jordan, Haddad, Lambert, Lomazow, Mendelowitz, Nussbaum, Paul, Reichman, Scott, Stanley, Walsh, Weiss and Wheeler.

EXCUSED

Board Members Ciechanowski, Clemency-Kohler, DeGregorio, Salas-Lopez and Strand.

ALSO PRESENT

Deputy Attorneys General Dick, Ehrenkrantz, Flanzman and Warhaftig, Executive Director Roeder, Medical Education Director Blanks and Mary Lou Mottola, Executive Director of the Medical Practitioner Review Panel.

RATIFICATION OF MINUTES

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO APPROVE THE MINUTES, WITH THE RECOMMENDED AMENDMENTS, FROM THE MAY 21, 2008 BOARD MEETING.

HEARINGS, PLEAS, RETURN DATES AND APPEARANCES

APPEARANCES

10 a.m. GALL, William J. DO 25MB02424400
HAFNER, Doreen, DAG for Complainant
LEVINE, Debra DAG Counseling

By way of background, a Motion for Summary Decision was filed by the Attorney General on April 25, 2008 with the Board of Medical Examiners. Oral Argument on the Motion for Summary Decision was scheduled to be heard at 10 a.m. on June 11, 2008.

DAG Hafner forwarded a settlement proposal and the Board agreed to the following:

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO ACCEPT THE SETTLEMENT AGREED TO BY THE PARTIES. THE BOARD ORDERED AND DR. GALL AGREED TO VOLUNTARILY SURRENDER AND RETIRE HIS LICENSE TO PRACTICE MEDICINE AND SURGERY IN NEW JERSEY. SAID SURRENDER WILL BE DEEMED A REVOCATION OF HIS LICENSE WITH THE EFFECTIVE DATE OF THE ORDER AS JUNE 11, 2008.

11 a.m. PERERA, Santusht, MD
KEATING, Michael Esq.
JESPERSEN, Kevin Prosecuting DAG

Dr. Haddad was recused in this matter and left the meeting.

By way of background, on May 21, 2008 the Board determined that cause existed to adopt, in part, and modify, in part, an Initial Decision by ALJ Ken Springer. The Board further determined, following a hearing, to impose (among other items) a two-year suspension of Dr. Perera’s license to practice medicine and surgery, a minimum of six months of which were to be served as an active period of suspension, to commence at the close of business on June 6, 2008.

The Board’s decision was announced, on the record, on May 21, 2008 and memorialized within a written order filed on June 5, 2008.

The Respondent then made a motion requesting a stay of the Board’s order and that the Board reconsider it’s decision, and further seeking leave to present evidence in mitigation of penalty, to include testimony to be offered by respondent and/or by three or four witnesses on respondent’s behalf, none of which were presented at the Board meeting on May 21, 2008. The respondent further represented, in writing, that he would voluntarily agree not to engage in any practice of medicine or surgery from the close of business on June 6, 2008 until this matter was heard and reconsidered by the full Board.

The argument on the motion for the stay was considered by Board President Criscito in a telephone conference call on June 5, 2008 and he was satisfied that good cause existed to enter a stay of the Board’s Order. The stay afforded the respondent an opportunity to present testimony in mitigation of penalty and afforded the Attorney General an opportunity to argue that the Board reconsider and increase the determinations previously made on penalty. The Stay Order was filed June 5, 2008.

The Board was asked to accept, reject or modify the Board President’s decision to stay the Board’s Final Order.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR DELIBERATIONS AND ADVICE OF COUNSEL.

All parties, except counseling and administrative staff, left the room.

Returning to Open Session, the Chair asked the parties to place their appearances on the record. Chairperson Criss informed the parties that the Board received copies of Mr. Keating’s request to re-open the matter and copies of letters from the attorneys of both parties.

Mr. Keating began argument by requesting a stay of the Board’s Final Order and to re-open the mitigation hearing in the matter. Mr. Keating asked the full Board to adopt Dr. Criscito’s Stay Order to it’s Final order. He also stated that he had a limited number of witnesses he wanted to present who were familiar with Dr. Perera’s medical knowledge, surgical skills and character.

DAG Jespersen opposed the application. He stated that this was an extraordinary application given the procedural posture of the case. DAG Jespersen stated that he Board had already issued a decision, heard evidence, gave notice of mitigation and gave Dr. Perera the opportunity to present whatever mitigation evidence he wanted to give. DAG Jespersen stated that this is a request to re-open a case after a case is done. He further stated that if the Board gives extraordinary relief then the Board should have an extraordinary reason to do so. DAG Jespersen stated that the Board should re-open only if new evidence was received yet no new evidence has been presented.

DAG Jespersen further stated that the Board will create a precedent that will permit an endless cycle of requests at the leisure of the respondent. He also stated that the respondent was aware of the date and had full and adequate notice of the hearing.

Mr. Keating stated that he was not asking for extraordinary relief and did not want to re-open the case. He requested that on a limited basis, a few mitigation witnesses be heard and for the Board to use the information at their discretion.

DAG Jespersen responded that Dr. Perera was aware of the date and had full and adequate notice of the hearing. Dr. Perera gave no reason why the hearing should not go forward and the Board had been more than fair. DAG Jespersen stated that it would be unreasonable for the Board to re-open the case.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR DELIBERATIONS AND ADVICE OF COUNSEL.

All parties, except counseling and administrative staff, left the room.

Returning to Open Session, the Board stated they had not made a determination as to whether to adopt the June 6, 2008 Stay Order. In order to make a determination, the Board asked that Dr. Perera be sworn in and testify as to why he was not present at the May 21, 2008 Board meeting and not prepared to proceed into mitigation.

Dr. Perera was sworn and Mr. Keating asked him to state the reason he was not at the May 21, 2008 Board meeting. Dr. Perera stated he did not expect the Board to overrule the ALJ’s decision. He also stated that he had not spoken to his witnesses before the May meeting and did not want to discuss all the unpleasant activity unless it was absolutely necessary.

On cross examination, DAG Jespersen asked Dr. Perera if he was aware that there was a hearing scheduled and that he could have been present for the Board to hear issues of mitigation of penalty. Dr. Perera stated that he was aware.

When questioned, Dr. Perera stated that he was aware that the Board could over turn a judge’s decision but he did not think the Board would overrule the ALJ. Dr. Perera further stated that he had a lot of emotional strain throughout the entire process. In answer to his whereabouts the day of the hearing, Dr. Perera stated that he went on rounds via telephone and waited at home. Dr. Perera also stated that Mr. Keating called him and told him to drive down to the hearing but while en route, Mr. Keating called him to say that the Board had made a decision.

Dr. Perera acknowledged that he should have been at the hearing. He thought it might have been a case of denial that the Board would overturn the ALJ’s decision and he was not prepared for that outcome. He also stated that he had not prepared for his witnesses to testify that day. He did give Mr. Keating a list of his witnesses but he had not spoken to any of them. He did not inform Mr. Keating that he had not spoken to the witnesses.

On further questioning, Dr. Perera maintained that he did realize the seriousness of the hearing and all the issues facing him from the very beginning of the case, eight years ago. When further questioned, he stated that Mr. Keating asked him to make a list of witnesses and Dr. Perera faxed him the list and he wanted to call the Chief of Surgery, Dr. Manchino but he was out of the country although he added that Dr. Manchino was at the hearing on this day.

When further questioned Dr. Perera stated that he had not considered having letters written on his behalf since he hoped it would not be necessary. He was hoping that the Board would implement the ALJ’s decision and that is why he did not speak to any of the mitigation witnesses. Dr. Perera was aware that the Board could reject the ALJ’s decision and he knew he was taking a chance and he apologized to the Board.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR DELIBERATIONS AND ADVICE OF COUNSEL.

All parties, except counseling and administrative staff, left the room.

Returning to Open session, the Board stated the following:

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO VACATE THE ORDER ISSUED BY DR. CRISCITO ON JUNE 5, 2008. DR. PERERA VOLUNTARILY DECIDED NOT TO APPEAR BEFORE THE BOARD ON MAY 21, 2008 NOTWITHSTANDING THE FACT THAT DR. PERERA WAS AWARE THAT A MITIGATION HEARING WAS SCHEDULED TO BE HEARD ON THAT DATE, THAT HE KNEW HE COULD BE PRESENT, THAT HE KNEW HE COULD TESTIFY AND THAT HE KNEW HE HAD AN OPPORTUNITY TO CALL WITNESSES ON HIS BEHALF AT THE HEARING. BASED ON THESE FACTS, THE BOARD DECLINES TO OFFER DR PERERA AN OPPORTUNITY TO MAKE A MITIGATION PRESENTATION TO THE BOARD. THE BOARD’S ORDER OF JUNE 5, 2008, ADOPTING IN PART AND MODIFYING IN PART, THE DECISION OF ALJ SPRINGER IS THEREFORE PRESENTLY EFFECTIVE, TO INCLUDE WITHOUT LIMITATION, THE TWO YEAR SUSPENSION OF RESPONDENT’S LICENSE, INCLUDING A SIX- MONTH ACTIVE SUSPENSION WHICH BEGINS ON JUNE 6, 2008.

Mr. Keating asked for the Board’s Order to be stayed pending an appeal.

DAG Jespersen opposed the motion to stay.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO DENY THE STAY.

1 p.m. PARIKH, Bipin J., M.D. 25MA03943100
HAFNER,Doreen DAG for Complainant

By way of background, the Attorney General was seeking the temporary suspension of Dr. Parikh’s license to practice medicine and surgery and for other such relief as deemed appropriate. The hearing in this matter was scheduled for Wednesday June 11, 2008 at 1:00 p.m.

A settlement was forwarded by DAG Hafner and the Board agreed to the following:

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO ACCEPT THE AGREEMENT AND SUSPENDED DR. PARIKH’S LICENSE TO PRACTICE MEDICINE AND SURGERY IN NEW JERSEY PENDING THE DISPOSITION OF THE CRIMINAL CHARGES. DR. PARIKH WILL CEASE AND DESIST THE PRACTICE OF MEDICINE IMMEDIATELY UPON ENTRY OF THIS ORDER AND WILL RETURN HIS LICENSE AND HIS CDS AND WILL ALERT THE DEA OF SUCH SURRENDER. THE BOARD AGREED TO GIVE DR. PARIKH 30 DAYS TO FILE HIS ANSWER.

lV OLD BUSINESS

LEVINE, Benjamin M.D. 25MA02389700
FLANZMAN, Steven N. DAG Counseling

DAG Jespersen was out of the room for the public session.

DAG Dick is recused in this matter.

At the March 19, 2008 Board Meeting, the Board decided the matter on the papers and voted to deny Dr. Levine’s request for reinstatement. The Board noted that it was unnecessary to address this issue since the arguments raised were the same arguments that Dr. Levine raised in seeking a modification of the Provisional Order of Discipline. The Board rejected those arguments at the March 19th meeting as it did in the past. The Board agreed that Dr. Levine’s suspension continue through at least October 2008.

Dr. Levine continued to petition the Board for reconsideration of its decision for reinstatement of his medical license. Dr. Levine further suggested that he uncovered evidence that the complaining witness in the criminal case against him conspired with a medical doctor to violate his rights and caused irreparable harm to him and he petitioned the Board to take action in the matter.

This matter was heard on the papers.

The Board noted that the action taken by the Board against Dr. Levine had nothing to do with the criminal case against him. It had to do with the fact that Dr. Levine misrepresented information on a medical malpractice insurance application and that he practiced medicine without a license for an extended period of time without medical malpractice insurance.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO DENY DR. LEVINE’S REQUEST FOR REINSTATEMENT OF HIS MEDICAL LICENSE. THE BOARD FINDS THAT NONE OF THE INFORMATION DR. LEVINE PRESENTED MITIGATES THE UNDERLYING BOARD ACTION TAKEN AGAINST HIM.

_________________________________
Karen Criss, R.N., C.N.M.
Vice-President

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