                     NOT FOR PUBLICATION WITHOUT THE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.




                                    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 July 31, 2018

           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
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.

                                     2                            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




                                3                           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.

                                        4                               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.

                                        5                              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



                                          6                                 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"



                                  7                            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,

                                         8                               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.

                                       9                                   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

                                        10                                   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.


                                11                          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

                                      12                              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

                                            13                                      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."



                               14                              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 immuno-

compromised   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



                                    15                                   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

                                      16                              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,

                                      17                                 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     anti-

depressant," 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."



                                       18                                   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



                                       19                              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



                                     20                                  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"

                               21                          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.



                                  22                                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

                                 23                          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

                                       24                              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



                                     25                               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.

                                     26                                   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.




                                 27                           A-0503-16T2
