Submitted by Professional License Defense Attorney, Jeffrey Hark
The Legislature has also recognized the importance of a medical license and the interest of the physician in retaining his license. The regulatory statute requires, in most instances, that a physician not be found guilty of professional misconduct unless his acts are so particularly egregious as to constitute misconduct in the magnitude of gross malpractice, N.J.S.A. 45:9-16(h); N.J.S.A. 45:1-21c. See Kerlin, 151 N.J. Super. at 185-86 (a greater degree of misconduct than applicable in ordinary tort cases is required for discipline). By requiring a showing of *566 flagrant misconduct, the Legislature has significantly increased the substantive burden which the State must bear in proving that professional dereliction warrants sanction.
Accordingly, we conclude that the State has a substantial interest in the regulation and supervision of those who are licensed to practice medicine. In this capacity, the State acts as the guardian of the health and well-being of its citizens. It must be vigilant and competent to protect these interests fully. Its own obligations in this respect are paramount to the rights of the individual practitioner claiming the privilege to pursue his or her medical profession.
There are several reasons why the use of the preponderance of the evidence standard in medical license revocation proceedings does not result in an undue risk of incorrect factfinding. As already noted, disciplinary proceedings against medical licensees involve high substantive standards. These include, as a basis for the suspension or revocation of a medical license, insanity, physical or mental incapacity, professional incompetence, habitual use of intoxicants, committing crimes of abortion or moral *567 turpitude, gross malpractice or neglect in the practice of medicine and endangering the health or lives of persons. N.J.S.A. 45:9-16. While these standards are broad, they are capable of objective measurement and application. In light of heightened and strict substantive standards defining professional misconduct, the preponderance of the evidence burden of proof constitutes an appropriate level of certainty to establish guilt. Cf. Vance v. Terrazas, 444 U.S. at 267, 100 S.Ct. at 548, 62 L.Ed.2d at 474 (approving congressional choice of the preponderance standard in expatriation cases, noting in particular its correlation with the heightened substantive requirement in such proceedings that it must be shown that the citizen committed an expatriating act with the intent to renounce citizenship). Hence, any perceived need to counteract or overcome substantive standards that have the potential for subjective, discriminatory, arbitrary or capricious application through a heightened burden of proof are not present under this regulatory scheme.
Administrative Procedure Act (N.J.S.A. 52:14B-1, et seq.), creating the Office of Administrative Law, the Legislature provided that hearing examiners are required to report their findings of fact and conclusions of law “… based upon sufficient, competent, and credible evidence …” N.J.S.A. 52:14B-10©
Our scope of review of an administrative agency’s final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). The agency’s final decision will be sustained unless an appellate court finds the decision to be “‘arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.‘” In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980)). The burden of showing that the agency’s decision was arbitrary, unreasonable, or capricious rests with the appellant. See Barone v. Dep’t of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff’d, 107 N.J. 355 (1987).