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).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1944-14T1

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 oneyear 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 
3 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 
4 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.
5 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 twentyfour 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 outpatient 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 
6 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," 
7 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 naturallyoccurring 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 
8 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." 
9 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. 
10 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.
11 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. 
12 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 
13 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 
14 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) 
15 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.
16 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. 
17 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 postprocedure 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.
18 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 
19 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. 
20 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 
21 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 Laminariainsertion 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. 
22 A-1944-14T1

Patient V.O. was an AWS patient. She signed a Laminariainsertion 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 Laminariainsertion 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 Laminariainsertion 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 
23 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 
24 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 
25 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 
26 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 
27 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. 
28 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 
29 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. 
30 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 
31 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 
32 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 
33 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 
34 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 
35 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 
36 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 
37 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.
38 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. 
39 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: 
40 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. 
41 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 
42 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 
43 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 
44 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 
45 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 
46 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. 
47 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 
48 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:
49 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 outof-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 
50 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 
51 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 
52 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
53 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 
54 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 
55 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.
56 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.
57 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 
58 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.).
59 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 
60 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."
61 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.
62 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 
63 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 Boardcertified 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 
64 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 
65 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 
66 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) 
67 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 
68 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).
69 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).
70 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).
71 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. 
72 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, 
73 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, 
74 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.
75 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 
76 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 
77 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.
78 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 
79 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 
80 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.
81 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.
82 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 
83 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. 
84 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), 
85 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. 
86 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.
87 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 
88 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 
89 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 
90 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[.]" 
91 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.
92 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 
93 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 
94 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).
95 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). 
96 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 
97 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 
98 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 constellation of 

factual findings and conclusions above, we are 

convinced and specifically conclude that the 

allegations that . . . Brigham engaged in 

professional misconduct, and thereby violated 

N.J.S.A. 45:1-21(e), are fully supported on 

the record below. . . . Brigham went to great 

lengths to create a thick haze to shroud his 

practice from scrutiny by licensing 

authorities in Maryland and New Jersey, and 

even to keep his patients from learning 

critical information. He repeatedly and 

consistently prepared his records in ways 

designed to confuse or obscure any review of 

both who was doing, and what was being done, 

in Elkton.

Those acts evidence a fundamental lack 

of candor and ultimately evince a brazen 

disregard and disrespect of the rights of 

patients, as well as for the authority of 

licensing agencies and the need for those 

agencies to be able to protect the public 

interest. They are thus acts which support, 

if not dictate, a conclusion that . . . Brigham

engaged in professional misconduct.

The record amply supports the BME's conclusions and its 

decision is entitled to deference based on its expertise and 

legislative authority. Further, the BME followed the law and its 

regulations governing the grounds for revocation and sanctions, 

considered all factors relevant to Brigham's continued licensure, 

and weighed the public interest and the continued need for 
99 A-1944-14T1

pregnancy termination services against countervailing concerns 

that society be protected from professional ineptitude. 

Accordingly, we find the BME's sanction of license revocation is 

not "shocking to one's sense of fairness." Polk, 90 N.J. at 578.

Affirmed.