SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0503-16T2

IN THE MATTER OF THE SUSPENSION

OR REVOCATION OF THE LICENSE OF

JOHN L. HOCHBERG, M.D., 

LICENSE NO. 25MA04163600

TO PRACTICE MEDICINE AND SURGERY 

IN THE STATE OF NEW JERSEY.

________________________________

Submitted April 24, 2018 – Decided

Before Judges Reisner, Hoffman, and Gilson.

On appeal from the New Jersey Board of Medical 

Examiners.

Stephen A. Gravatt, attorney for appellant 

John L. Hochberg, M.D

Gurbir S. Grewal, Attorney General, attorney 

for respondent New Jersey Board of Medical 

Examiners (Andrea M. Silkowitz, Assistant 

Attorney General, of counsel; Kathy S. 

Mendoza, Deputy Attorney General, on the 

brief). 

PER CURIAM

Dr. John L. Hochberg appeals from a July 25, 2016 final 

decision and order issued by the Board of Medical Examiners, and 

from an August 25, 2016 supplemental order. In its July 25, 2016 

NOT FOR PUBLICATION WITHOUT THE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.

July 31, 2018
2 A-0503-16T2

decision, the Board found that Hochberg committed record-keeping 

violations, and acts of negligence and gross negligence with 

respect to two private patients, B.L. and K.O., whom he was 

treating for chronic pain. See N.J.S.A. 45:1-21(c) and (d) 

(authorizing license suspension for gross negligence or repeated 

acts of negligence); N.J.A.C. 13:35-7.6 (setting forth required 

procedures for prescribing controlled dangerous substances); 

N.J.A.C. 13:35-6.5 (requiring documentation of patient treatment 

information). The Board also found that Hochberg committed gross 

negligence in the treatment of N.D.B., an inmate at a prison where 

Hochberg was the medical director.1 

In the July 25, 2016 decision, the Board imposed a $60,000 

penalty and suspended Hochberg's medical license for five years;

the first two years are an active suspension and the last three 

years may be stayed and served as probation. In the August 25, 

2016 order, the Board also assessed approximately $350,000 in 

counsel fees and costs. Hochberg did not claim that he could not 

pay the assessed amounts, which the Board allowed him to pay in 

installments over a period of four years. 

 

1 The Board also found that Hochberg committed gross negligence 

and recordkeeping violations with respect to several additional 

private patients, including prescribing opioid pain medications 

without keeping proper patient records. However, he is not 

appealing the findings with respect to those patients. 
3 A-0503-16T2

The majority of Hochberg's appeal from the July 25, 2016 

decision focuses on the Board's findings concerning N.D.B., who 

died in prison while Hochberg was responsible for overseeing his 

medical care. Hochberg contends that the Board should have 

deferred to the administrative law judge's (ALJ's) determination 

that Hochberg did not deviate from the standard of care, in failing 

to order a blood transfusion for N.D.B. after his hemoglobin 

dropped to a "dangerously low" level. Hochberg also contends that 

the Board's factual findings about the need for the transfusion 

were not supported by substantial credible evidence. He argues 

that both the ALJ and the Board erred in finding gross negligence 

in Hochberg's failure to order a reevaluation of the inmate's 

psychiatric medication, amitriptyline (Elavil), to ensure that the 

inmate's severe symptoms were not due to an overdose of the 

medication. 

In a point consisting of half a page, Hochberg also contends 

that the Board erred in concluding that Hochberg did not actually 

provide certain medical services to two private patients, B.L. and 

K.O. Those findings were based on Hochberg's failure to document 

such services in the patients' records and his failure to offer 
4 A-0503-16T2

any witness testimony that he provided the services.

2 Lastly, 

Hochberg contends that the sanctions, penalties, costs, and fees 

the Board imposed were excessive and an abuse of discretion.

After reviewing the record in light of the applicable legal 

standards, we conclude that the Board's decision was supported by 

substantial credible evidence, and the Board properly employed its 

medical expertise in evaluating the expert testimony. Hochberg's 

argument concerning B.L. and K.O. is without sufficient merit to 

warrant further discussion, and as to those two patients, we affirm 

for the reasons stated in the Board's decision. R. 2:11-

3(e)(1)(E). We find no abuse of discretion or shocking unfairness

in the sanctions, penalties, costs, and fees imposed. Accordingly, 

we affirm both of the Board's decisions on appeal. 

I

Before addressing the legal issues concerning N.D.B., we 

summarize the medical evidence and expert testimony concerning 

Hochberg's treatment of this patient. 

Hochberg was the site medical director for Northern State 

Prison, where N.D.B. was incarcerated. He was responsible for all 

medical care provided to that prison's inmates. All physicians 

 

2 Hochberg does not challenge the ALJ's or the Board's findings 

that he committed multiple other violations with respect to K.O. 

and B.L. 
5 A-0503-16T2

and nurses involved in the medical care of those inmates had full 

access to their electronic medical records, which included orders 

and notes.

Manuel Garcia, a psychiatrist at the prison, testified that 

he began treating N.D.B. in 2007 for depression, personality 

disorder, and a substance abuse disorder. Garcia prescribed 

amitriptyline, also known as Elavil, which N.D.B. was receiving 

during the entire period at issue. Garcia believed that N.D.B. 

had a high tolerance for Elavil and in the fall of 2008, he 

substantially increased N.D.B.'s dosage.

In addition to his psychological problems, N.D.B. had 

Hepatitis C. In October 2008, Hochberg prescribed treatment for 

the Hepatitis C, consisting of a series of twelve injections of 

the anti-viral drugs Pegasys and Ribavirin. Decreased hemoglobin 

levels was an expected side effect, so N.D.B.'s hemoglobin level 

was to be tested every two weeks. Hemoglobin levels are reported 

in grams per deciliter; the normal range is 12.5 to 17. At the 

start of treatment, N.D.B.'s hemoglobin level was 15.4. 

After N.D.B.'s third injection on November 12, 2008, his 

hemoglobin level decreased to 11.2. Hochberg's treatment notes 

did not record the decrease in hemoglobin, but indicated that the 

viral load of Hepatitis C had dropped significantly and that the 

injections would continue. 
6 A-0503-16T2

On November 26, 2008, after N.D.B. received his fifth 

injection, he told Richard Mucowski, a prison psychologist who was 

conducting a routine follow-up visit, that he wanted to stay in 

bed. N.D.B. described symptoms evocative of flu and depression, 

which were typical for his course of treatment for Hepatitis C.

On December 3, 2008, just before N.D.B. received his sixth 

injection, he told Mucowski that he had flu-like symptoms and was 

discouraged, "feeling like he's been beaten up" and mildly 

depressed. On December 5, 2008, Dr. Hochberg noted that N.D.B.'s 

hemoglobin level was 9.9.

On December 10, 2008, Garcia saw N.D.B. He noted that N.D.B. 

had a dependency mentality and persistently demanded "sedation." 

On that date, N.D.B. told Garcia that he needed Elavil because the 

Pegasys was deepening his depression. Garcia re-ordered the 

prescription for Elavil. 

Later that same day, N.D.B. received the seventh injection

of anti-viral medication. For unknown reasons, no lab test for 

hemoglobin was ordered after that injection or the next three.

On December 19, 2008, after the eighth injection, Dr. John 

Godinsky, another prison physician, visited N.D.B. Godinsky noted 

that he discussed "abnormal labs" with N.D.B., but that "all 

treatments" would continue. On December 24, 2008, after the ninth 
7 A-0503-16T2

injection, Mucowski visited N.D.B. and noted his complaint of 

dizzy spells since starting the Hepatitis C treatment. 

On December 31, 2008, the day of the tenth injection, N.D.B. 

complained again of dizziness, and also about shortness of breath, 

tightened muscles, and chest pain. Dr. Narsimha Reddy visited 

him, noted that the symptoms "subsided spontaneously," and did not 

order any changes.

N.D.B.'s eleventh injection was administered on January 7, 

2009, and a lab test was ordered on January 12, 2009. The 

hemoglobin result was 6.4, which Godinsky called "low." Godinsky 

requested a consultation with Dr. Husain, an infectious disease 

specialist, to "evaluate anemia secondary to" Hepatitis C 

treatment. 

Godinsky also ordered a repeat lab test and wrote that he 

intended to order Epogen, also known as Aranesp or erythropoietin, 

if N.D.B.'s hemoglobin level was low again. Epogen counters anemia 

by stimulating the production of red blood cells. 

Despite his note implying an intention to wait for the next 

lab test, on January 13, 2009, Godinsky ordered the administration 

of Epogen. On that same day, N.D.B. was admitted to the prison 

infirmary, because he had become dizzy and light-headed. Nurse 

Nadia Jean Pierre noted that N.D.B. was "stable and ambulatory" 
8 A-0503-16T2

upon admission and had "no acute distress," although he was pale 

and slightly weak. 

When nurse Ogundana arrived for her overnight shift starting 

on January 13, 2009, N.D.B. was sleeping. At 4:00 a.m. on January 

14, during a routine check for vital signs, he was easily aroused 

from sleep, and he had no complaints or acute distress, although 

he looked "ashen." 

On January 14, 2009, Hochberg asked for a psychiatrist or 

psychologist to see N.D.B. because the Hepatitis C treatment might 

aggravate "his bipolar problems," although nothing in N.D.B.'s 

records documented a bipolar condition. Garcia and Hochberg 

visited N.D.B. together. Garcia noted that N.D.B. was very pale 

and complaining of "passing episodes of dizziness." Garcia 

testified that Hochberg called N.D.B.'s anemia "marked." Garcia 

testified that he was not concerned that the dose of Elavil might 

be excessive, because he believed that N.D.B. had a high tolerance 

for it, and because N.D.B. was alert, oriented, not confused, and 

his mouth was not dry. 

A January 14, 2009 lab report indicated that N.D.B.'s 

hemoglobin level had dropped to 5.1. On January 15, 2009, Hochberg 

saw N.D.B. and noted the new hemoglobin level of 5.1, as well as 

a lower white blood cell and platelet count. Nonetheless, Hochberg 

assessed the patient as "clinically sound." He noted, however,
9 A-0503-16T2

that the twelfth and final injection for Hepatitis C was on hold. 

The eleventh injection had been administered eight days earlier. 

Hochberg also noted that Epogen had been prescribed for the 

patient.

On January 16, 2009, a Friday, Hochberg saw N.D.B. and noted

the absence of acute distress. However, that afternoon, infectious 

disease nurse Margaret Ukpuno noted that N.D.B. complained of 

dizziness after taking a shower, and noted that the staff 

encouraged him to stay in bed. Ukpuno informed Dr. Husain, the

consulting infectious disease specialist, about N.D.B.'s

hemoglobin level of 5.1. Husain responded by recommending lab 

tests every two or three days until the hemoglobin stabilized at 

about 7 to 8, then weekly until it increased to about 10, and then 

monthly until it was normal. Ukpuno "flagged" Husain's response 

for Hochberg's attention. Hochberg would later countersign it on 

Tuesday, January 20, 2009.

From January 16 to January 20, 2009, the patient appeared 

pale, and he had some dizziness and low blood pressure. On January 

20, during rounds before the end of her overnight shift, nurse 

Ogundana found N.D.B. sitting up in bed. He was pale and had a 

slight bruise on the bridge of his nose. He reported that he had 

fallen, and that his hands were so shaky that he was dropping 

everything. She saw juice and coffee on the sheets and the floor. 
10 A-0503-16T2

She asked N.B.D. to extend his hands, and they shook. He had been 

served breakfast in his cell, because he felt weak and the 

infirmary staff did not want to risk a fall. 

Hochberg saw N.D.B. that same day and found him to be pale, 

but alert and stable, oriented, and in no distress. He noted that 

N.D.B.'s hemoglobin had dropped to 4.3, and that the Hepatitis C 

viral load was undetectable. Hochberg sent an e-mail to Yasser 

Soliman, the Director of Utilization Management, stating that if 

N.D.B.'s hemoglobin level dropped any lower and if N.D.B. became 

"symptomatic," he would need a transfusion "this weekend." 

Hochberg added that N.D.B. "may have fallen as a result of his 

anemia, but seems stable." 

On January 21, 2009, at 6:15 a.m., Ogundana noted that N.D.B. 

was unkempt and dirty, with juice "all over his clothing." He 

walked with a broad stance and swung from side to side as if he 

were going to fall, so he was instructed to remain in bed. He was 

not oriented to time, because he had awakened at midnight and 

asked for breakfast. He was told the time, but five minutes later 

he said he needed a wheelchair because he could not walk far 

without falling and he wanted to go to breakfast.

 At 8:39 a.m. on January 21, Hochberg saw N.D.B. and considered 

him oriented. He also received Dr. Husain's consultation note. 

Husain referenced the hemoglobin levels of 5.1 and 4.3 and 
11 A-0503-16T2

confirmed that N.D.B.'s treatment with the anti-viral drugs should 

be suspended.

Also, on January 21, Soliman responded to Hochberg's e-mail 

by advising him that a request for transfusion would have to be 

made promptly if N.D.B. were to be scheduled for outpatient 

transfusion on Friday, January 23, 2009. Hochberg replied that 

he would try "Aranesp" (Epogen), and stated that if N.D.B.'s 

hemoglobin level did not improve "by Friday or perhaps Monday," 

he would send N.D.B. for an outpatient transfusion.

3 Soliman 

replied that transfusions had to be scheduled on Fridays, and that 

requests took a few days to process. Hochberg responded that he 

would make the request the next day if the stat lab test results 

that he was awaiting warranted it. Later that day, Hochberg 

received the lab report, stating N.D.B.'s hemoglobin level as 4.5. 

Hochberg noted that as a "mild gain."

That afternoon, two nurses responded after N.D.B. slipped and 

fell. His vital signs were normal. Hochberg put N.D.B. on "fall 

precaution" status.

 

3 The record does not explain why Aranesp would first be "tried" 

on January 21, 2009, eight days after Godinsky had prescribed 

Epogen and seven days after Hochberg ordered the patient to "start" 

taking Epogen.
12 A-0503-16T2

On January 22, 2009, at 6:56 a.m., Ogundana noted that N.D.B. 

was easily arousable and had no complaints. On January 23, 2009, 

at 7:23 a.m., Ogundana noted that N.D.B. had no acute distress, 

but his speech was mumbled and incoherent. Ogundana testified 

that N.D.B. commented that he did not know what he was saying. 

Ogundana added that, sometime after midnight, N.D.B. was in his 

wheelchair and getting ready for breakfast. That was the third 

instance of such confused behavior, and N.D.B. told her that he 

did not always know what time it was. However, Ogundana testified 

that she did not see anything during her shift that suggested a 

need to call a doctor.

Hochberg saw N.D.B. at 8:39 a.m. on January 23, 2009. His 

notes mentioned anemia, but also stated that the hemoglobin level 

appeared to be rising, an apparent reference to the increase from 

4.3 to 4.5. Hochberg noted that this meant the patient's blood 

tests no longer needed to be sent to the lab on a "stat" basis.

Hochberg also noted that he intended to keep N.D.B. in the 

infirmary until his hemoglobin level reached 8. 

During the afternoon of Friday, January 23, 2009, nurse 

Dorothy Okeke recorded N.D.B.'s blood pressure as 126/74, pulse 

rate at 76, and pulse oxygen saturation at 97. N.D.B. was sleeping 

in bed, but during rounds he had been arousable and verbally 

responsive. He complained that his hand was shaking and causing 
13 A-0503-16T2

him to drop his juice and food. N.D.B. also complained of muscle 

weakness and fainting, and he had been "seen on [the] floor."

At some point during the overnight shift, N.D.B.'s vital 

signs were noted at similar levels as at the prior reading. At 

5:00 a.m. on January 24, 2009, during nursing rounds, N.D.B. was 

found sitting in his wheel chair.

Later that morning, at 6:11 a.m., a guard told Ogundana that 

N.D.B. was not responsive, so she and the medication nurse 

immediately went to his cell. His body was warm, but he had a 

very weak pulse with no breath sounds, and Ogundana could not get 

a blood pressure reading. The pulse oximeter device had a negative 

result, which she understood to indicate that "there is no life." 

Ogundana and the other nurse attempted CPR, but N.D.B. was 

pronounced dead as of 7:12 a.m. 

An autopsy was performed the following day. The final autopsy 

report listed the cause of death as "[c]ardiomegaly with 

ventricular dilatation complicated by amitriptyline [Elavil]

intoxication." The report also noted "[m]arked anemia following 

hepatitis treatment" as being "contributory." 

The State and Hochberg each presented expert testimony 

concerning Hochberg's treatment of N.D.B., as well as other 

patients. Dr. Paul Goldberg, who was board certified in internal 

medicine, testified for the State. Goldberg opined that a 
14 A-0503-16T2

hemoglobin level of 9.9 represented moderate anemia, and was an 

expected side effect of N.D.B.'s Hepatitis C treatment, but that 

medical action was not required at that point. According to 

Goldberg, the later decrease to 6.4 was significant.

Goldberg further opined that a hemoglobin level of 5.1 was 

"alarming" because it was dangerously low, enough to make a person 

weak and confused and to cause circulatory collapse. He testified 

that Hochberg should have noted physical exam findings to justify 

his conclusion that N.D.B. was "clinically sound" at that level, 

and Hochberg should have considered the possibility of internal 

bleeding. However, Hochberg apparently disregarded that 

possibility, because he did not even order an occult blood test.

Goldberg also testified that Hochberg should have recognized 

that the nurse's notes from January 20, 2009, about N.D.B.'s 

falling and shakiness, showed that the anemia was affecting N.D.B. 

– that he was becoming symptomatic. He opined that the dizziness,

in a young man who was previously functioning normally, was "quite 

striking" and was a sign of sickness or decompensation. According 

to Goldberg, having hands too shaky to hold things, along with 

increasing dizziness and falling, was a significant deterioration. 

Goldberg opined that Hochberg's failure to perceive that N.D.B. 

was symptomatic was "profoundly below the standard of care." 
15 A-0503-16T2

Goldberg opined that N.D.B.'s behavior and confusion early 

on January 23, 2009, were consistent with cerebral hypoxia due to 

anemia, and that Hochberg should have considered that condition 

as well, given N.D.B.'s hemoglobin level. Goldberg testified that 

the increase in hemoglobin from 4.3 to 4.5 was insignificant. 

Goldberg acknowledged that a decision to transfuse is "based 

on clinical judgment," but he believed that the medical literature 

called for a transfusion when the hemoglobin level declined to 6, 

unless exceptional circumstances dictated otherwise. His final 

opinion was that N.D.B. was "critically ill" and that the nursing 

staff documented his decompensation, yet Hochberg failed to act 

"in the face of clear evidence that this was a very sick patient," 

which was "unequivocally a gross deviation." 

Goldberg later acknowledged that weighing the risk of 

transfusion against the risk of harm from not transfusing was also 

a matter of clinical judgment, and that a patient's being immunocompromised would make the risks from transfusion "at least 

somewhat greater." However, Goldberg testified that the risk of 

complications was still quite low, and the risk to N.D.B. of having 

a transfusion was greatly outweighed by the benefits. He opined 

that the standard of care "when confronted with this specific 

situation" of an anemic patient "getting sick" for uncertain 
16 A-0503-16T2

reasons was to "have acted vigorously," which would have included 

transfusion.

However, Goldberg testified that Hochberg's notes on January 

23, 2009, indicating that N.D.B.'s hemoglobin no longer needed to 

be tested on an expedited basis, plainly showed that Hochberg was 

not even considering a transfusion. Goldberg opined that the 

approach of just watching blood counts while doing nothing 

"proactively" was "without a doubt" a gross deviation from the 

standard of care, at least by the time N.D.B.'s hemoglobin level 

declined to 5.1 and lower.

When confronted with an article stating that administering 

Epogen could be an alternative to "chronic transfusion" for 

treating anemia caused by drugs used to treat Hepatitis C, Goldberg 

explained that N.D.B.'s anemia was acute rather than chronic. He 

also explained that a transfusion can increase the hemoglobin 

level by two grams per deciliter within an hour, whereas Epogen

takes four weeks to increase it by one gram. 

When asked if a transfusion would have been of any benefit 

if N.D.B. had in fact been suffering from amitriptyline toxicity, 

due to Elavil, Goldberg opined that relieving the burden of anemia 

would have increased N.D.B.'s capacity to handle other problems,

including such toxicity. Goldberg testified that he would have 

found deviations from the standard of care even if N.D.B. had 
17 A-0503-16T2

recovered, and he was not basing his conclusions on an assumption 

that anemia was the cause of death.

Goldberg opined that Hochberg had full responsibility for all 

of N.D.B.'s care because he was the prison medical director. As 

N.D.B.'s condition worsened, the patient records did not show that 

Hochberg sought further advice from Husain and Soliman about 

anemia, or from Garcia and Mucowski about whether Elavil could 

have been causing N.D.B.'s symptoms.

Doctor Angelo Scotti, who testified as Hochberg's expert, was 

a primary care physician with a subspecialty in infectious 

diseases. He also had experience directing an emergency room and 

an intensive care unit. Scotti testified that transfusion 

protocols became more conservative starting in the 1980s, when 

increasing numbers of patients acquired infections such as

hepatitis and HIV from transfused blood. According to Scotti, 

transfusion is only mandated - as opposed to being a matter of 

clinical judgment - when a patient has hemorrhagic shock, or shock 

due to blood loss. 

Scotti testified that transfusion is not mandated by the 

patient's hemoglobin level alone, but rather by the patient's 

entire condition. According to Scotti, the standard of care is 

to transfuse when mandated, and failing to do so would be a 

deviation. Conversely, where transfusion is not mandated, 
18 A-0503-16T2

ordering a transfusion, where there is no "true indication" for 

it, would be a deviation. Scotti testified that not every patient 

with a hemoglobin level of 5 or 6 should receive a transfusion, 

although he conceded that when the hemoglobin level is less than 

6, "you certainly should be considering transfusion in most 

patients."

Scotti opined that N.D.B.'s condition, even as Goldberg 

described it, did not mandate transfusion. He testified that, 

when Hepatitis C medications decrease hemoglobin, the treatment 

is to stop them, which Hochberg did. Scotti acknowledged that 

N.D.B.'s hemoglobin "didn't remarkably increase" from the Epogen 

treatment, and that N.D.B. "actually died before [the hemoglobin 

level] came up," even though its administration was started at an 

appropriate time. 

When asked to describe N.D.B.'s condition "during the last 

three or four days of his life," Scotti said that N.D.B. was 

"deteriorating[,]" "[a]pparently from toxicity from an antidepressant," and that he had many symptoms of toxicity and "in 

fact, died from the toxicity." The symptoms were limited to the 

mental deterioration shown by N.D.B.'s "intermittent episodes" of 

imbalance and of confusion about the time of day. Scotti asserted 

that N.D.B. exhibited "no physical abnormalities." 
19 A-0503-16T2

Scotti opined that N.D.B.'s hemoglobin level was stable even 

though it was low. He testified that dizziness was a complication 

of Elavil even at normal and nontoxic levels, and in any event, 

dizziness was "a very difficult symptom" to assess because patients 

use the term to describe "almost everything." It could also have 

been a complication of the Epogen, because "dizziness and nausea 

are side effects of almost any medication." However, Scotti opined 

that disorientation "certainly" was not a symptom of anemia, 

because he had never seen anemia cause that symptom in his 

experience or in the literature.

Scotti acknowledged that "sometimes" Epogen has an effect 

"within a day or two and sometimes it doesn't happen[,]" which is 

why "the routine" is to order its administration for thirty days, 

because if it has no effect by then, "it's probably not going to 

work." He admitted that giving a transfusion would have been a 

reasonable exercise of clinical judgment in this case.

Nonetheless, based on N.D.B.'s records, Scotti would not have 

ordered a transfusion even when N.D.B.'s hemoglobin level was 4.3. 

According to Scotti, the risks of transfusion included acquiring 

another disease from the transfused blood, due to imperfect 

screening, and possible resulting damage to N.D.B.'s liver. On 

cross-examination, however, he admitted that by January 15, the 
20 A-0503-16T2

patient's hemoglobin had reached what a testing lab would consider 

"panic values" indicating a potential emergency.

In addition to opining that N.D.B.'s confusion, dizziness and 

other symptoms "were most likely related to his toxic levels of 

the anti-depressant" Elavil, Scotti agreed that Hochberg should 

have been familiar with Elavil. In response to a question from 

the ALJ, Scotti confirmed that Hochberg "should have considered

. . . if Elavil was playing a part" in the patient's symptoms. He 

admitted that the medical records did not reflect such 

consideration. Scotti denied, however, that Hochberg necessarily 

should have documented his consideration of that possibility. He 

asserted that it was "appropriate" to note a differential diagnosis 

in the patient's records but "it's certainly not always done." 

Hochberg did not testify at the hearing. 

II

In his initial decision, the ALJ found that Scotti's 

experience with transfusion justified giving his opinions greater 

weight than Goldberg's opinions. The ALJ relied on Scotti's 

testimony in finding that the standard of care did not mandate a 

transfusion for N.D.B. at any particular hemoglobin level. He 

credited Scotti's opinion that Hochberg did not deviate from the 

standard of care by making a clinical decision to give Epogen the 
21 A-0503-16T2

"necessary time" to work while remaining open to a transfusion "at 

some point." 

However, the ALJ agreed with Goldberg's opinion that Hochberg 

committed "a substantial departure from the standard of care," and 

thus gross negligence, by failing to consider whether N.D.B.'s 

symptoms could have reflected a condition other than anemia that 

required hospitalization and transfusion. In particular, he found

that Hochberg should have considered whether the medication in 

N.D.B.'s "mental-health-related regimen" was producing N.D.B.'s 

symptoms. The ALJ found that Hochberg could have pursued that 

inquiry himself or ensured that it was pursued by Garcia, the 

doctor who was "most directly responsible for and trained to deal 

with" N.D.B.'s psychiatric issues and medication. The ALJ noted 

that Scotti did not disagree with that view.

In rendering its decision, the Board relied on the same 

medical evidence as the ALJ. However, the Board relied on its 

"collective medical expertise" to "reject [the ALJ's] finding that 

the expert opinion of Dr. Scotti was more persuasive than that of 

Dr. Goldberg," and to reject the ALJ's "conclusions of law" about 

negligence, which the ALJ based on Scotti's testimony.

The Board agreed with Goldberg that N.D.B. was symptomatic 

in numerous ways to the point of becoming critically ill, and that 

he needed a transfusion, regardless of whether the "precise cause" 
22 A-0503-16T2

of his condition was anemia or tricyclic toxicity. The Board

rejected Scotti's testimony that Hochberg had a justification for 

waiting for N.D.B. to become "symptomatic" and to see if N.D.B. 

would show a significant response to the Epogen. The Board found 

instead that "the patient record" showed that N.D.B. was already 

symptomatic by the time his hemoglobin level declined to 4.3, with 

syncope, disorientation, and muscle weakness. It was 

"inconceivable" to the Board that anyone with a hemoglobin level 

of 4.3 would not be symptomatic.

The Board further agreed with Goldberg that "the most minimal 

standard of care" required an occult blood test, evaluations by a 

neurologist and hematologist, and a CT scan, which were "simple 

tests" that Hochberg failed to order. Rejecting the ALJ's view 

on this point, the Board concluded that Hochberg's failure to 

address N.D.B.'s "critically low" hemoglobin level constituted

gross negligence. 

The Board adopted the ALJ's conclusion that Hochberg had been 

grossly negligent "in failing to seek a psychological consult 

during the last days of N.D.B.'s life." That conclusion reflected 

Scotti's testimony that Hochberg should have focused on the 

possibility that the patient had toxic levels of Elavil in his 

system.
23 A-0503-16T2

III

On this appeal, our review of the Board's decision is limited 

and deferential. See In re License Issued to Zahl, 186 N.J. 341, 

353 (2006). We will not disturb the Board's findings so long as 

they are supported by substantial credible evidence, "considering 

the proofs as a whole with due regard to the agency's expertise." 

Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). 

Hochberg contends that the Board should have deferred to the 

ALJ's evaluation of the expert witnesses, and particularly to his 

decision that Scotti's opinion on the transfusion issue was more 

persuasive than that of Goldberg. He also asserts that the Board's 

decision was not supported by substantial credible evidence. We 

disagree. 

The Board owes deference to the ALJ's evaluation of lay 

witness testimony, and must clearly explain a decision to disagree 

with that evaluation:

In reviewing the decision of an administrative 

law judge, the agency head may reject or 

modify findings of fact, conclusions of law 

or interpretations of agency policy in the 

decision, but shall state clearly the reasons 

for doing so. The agency head may not reject 

or modify any findings of fact as to issues 

of credibility of lay witness testimony unless 

it is first determined from a review of the 

record that the findings are arbitrary, 

capricious or unreasonable or are not 

supported by sufficient, competent, and 

credible evidence in the record. In rejecting 
24 A-0503-16T2

or modifying any findings of fact, the agency 

head shall state with particularity the 

reasons for rejecting the findings and shall 

make new or modified findings supported by 

sufficient, competent, and credible evidence 

in the record.

[N.J.S.A. 52:14B-10(c) (emphasis added).] 

On the other hand, the Board is expected to use its expertise 

in evaluating the testimony of expert witnesses. "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 Silberman, 169 N.J. Super. 243, 256 (App. Div. 

1979) (quoting N.J. State Bd. of Optometrists v. Nemitz, 21 N.J. 

Super. 18, 28 (App. Div. 1952)), aff'd o.b., 84 N.J. 303 (1980). 

In this case, as in Silberman, "the Board evaluated the evidence 

in the light of its expertise -- an expertise not possessed by the 

[ALJ]." 169 N.J. Super. at 256. 

Based on its collective expertise, the Board accepted 

Goldberg's testimony that, once the patient's hemoglobin levels 

dropped to a dangerously low level, the risks of withholding a 

transfusion far outweighed any possible risks of the transfusion 

itself. We find no basis to second-guess the Board's judgment. 

Unlike Scotti, Goldberg explained that the potential risks of a 

transfusion were statistically remote, as compared to the 
25 A-0503-16T2

substantial risks presented by the patient's extremely low 

hemoglobin levels. The Board also found, based on the evidence, 

that the patient "was symptomatic and experiencing syncope, 

disorientation and muscle weakness," warranting that he be 

hospitalized for further testing and a transfusion. The Board's 

conclusion, that Hochberg's failure to take those steps was gross 

negligence, is supported by substantial credible evidence. 

We likewise find no merit in Hochberg's contention that the 

Board and the ALJ both erred in finding that Hochberg was grossly 

negligent in failing to order a review of the patient's psychiatric 

medication. The record reflects that the psychiatrist was giving 

the patient a high dosage of Elavil, based on his belief that the 

patient could tolerate that dosage. The patient's electronic 

medical records, including his psychiatric treatment records, were 

available to Hochberg, and Scotti confirmed that Hochberg should 

have been familiar with Elavil. 

The ALJ found that, as the patient's condition worsened, 

Hochberg should have asked the psychiatrist to re-evaluate him to 

determine whether his symptoms were related to the dosage of 

Elavil. The Board accepted the ALJ's findings, which on this 

issue, were supported by Scotti's testimony. The Board's decision 

that Hochberg committed gross negligence, in failing to request a 
26 A-0503-16T2

psychiatric consultation, is supported by substantial credible 

evidence.4

IV

Lastly, Hochberg argues that the license suspension, 

penalties and fees are excessive. We find no merit in those 

arguments. 

Our review of the Board's decision is highly deferential and 

we may not substitute our judgment for that of the Board. Zahl, 

186 N.J. at 353-544. We will not intervene unless the sanction 

is outside the agency's authority, or the "punishment is so 

disproportionate to the offense, in light of all the circumstances, 

as to be shocking to one's sense of fairness." Id. at 354 (quoting 

In re Polk, 90 N.J. 550, 578 (1982)). The Board was authorized 

to impose a penalty of up to $10,000 for a first violation and up 

to $20,000 for each separate or subsequent violation. N.J.S.A. 

45:1-25(a). We find nothing illegal or conscience-shocking in the 

$60,000 penalty the Board imposed. 

Nor do we find anything shockingly unfair in the five-year 

license suspension, which if Hochberg undergoes the retraining the 

Board required, may allow him to return to practice on a 

 

4 To the extent not specifically addressed, Hochberg's arguments 

are without sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E). We decline to consider arguments raised for the first 

time in his reply brief. 
27 A-0503-16T2

probationary basis after two years. The Board based the suspension 

on its finding of "a clear pattern, spanning more than ten years, 

of failure to recognize and aggressively treat significant medical 

issues and poor recordkeeping." Additionally, based on findings 

of gross negligence as to the five patients who were the subject 

of the complaint, the Board questioned Hochberg's "ability to 

provide competent basic medical care." Hochberg has not appealed 

from most of those findings. We affirm the suspension, as well 

as the $60,000 penalty. 

Likewise, we find no basis to disturb the award of costs and 

counsel fees, much of which the Board awarded at the rate of $175 

an hour for an attorney with twenty years of experience. Further, 

the Board carefully reviewed the application, and made reductions 

where it believed the amounts were excessive. A fee award "will 

be disturbed only on the rarest of occasions, and then only because 

of a clear abuse of discretion." Packard-Bamberger & Co. v. 

Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 

N.J. 292, 317 (1995)). We find no clear abuse of discretion here.

Affirmed.