In the Matter of the Suspension or Revocation of the License of Louis Quartararo, M.D., Etc.

• Court: New Jersey Superior Court Appellate Division
• Decided: October 31, 2024
• Docket: A-0425-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0425-22

IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF LOUIS QUARTARARO, M.D. LICENSE NO. 25MA07137700 TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY. _____________________________

Argued April 17, 2024 – Decided October 31, 2024

Before Judges Vernoia, Gummer, and Walcott- Henderson.

On appeal from the New Jersey State Board of Medical Examiners, Division of Consumer Affairs, Department of Law and Public Safety.

Keith J. Roberts argued the cause for appellant Louis Quartararo, M.D. (Brach Eichler LLC, attorneys; Keith J. Roberts and Shannon Carroll, of counsel and on the briefs).

David Puteska, Deputy Attorney General, argued the cause for respondent New Jersey Board of Medical Examiners (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attorney General, of counsel; Kathy Stroh Mendoza, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

WALCOTT-HENDERSON, J.S.C. (temporarily assigned).

Louis Quartararo appeals from an August 22, 2022 final agency decision

of the State Board of Medical Examiners (Board), revoking his license to

practice medicine and surgery in New Jersey and barring him from seeking

reinstatement of his license for at least seven years for: professional misconduct

in violation of N.J.S.A. 45:1-21(e) by engaging in sexual contact with patients;

negligent acts in violation of N.J.S.A. 45:1-21(d) by performing surgeries with

co-surgeons who lacked the requisite privileges; and acts of fraud, deception and

misrepresentation in violation of N.J.S.A. 45:1-21(b) by miscoding procedures

on patient operative reports and listing procedures in the reports he had not

performed for the purpose of ensuring insurance coverage. Quartararo also

appeals from the financial penalties and attorney's fees imposed by the Board.

Because we conclude the Board's decision was amply supported by credible

evidence in the record, we affirm.

I.

Quartararo was a physician and Board-certified orthopedic surgeon

licensed to practice medicine in New Jersey. Quartararo practiced at the New

A-0425-22 2 Jersey Spine Institute, LLC, the New Century Spine and Outpatient Surgical

Center (New Century), and the International Center for Minimally Invasive

Spine Surgery (ICMISS), where he was also a fifty-one percent co-owner and

Medical Director.

On May 23, 2018, Quartararo appeared before the Board to discuss the

results of an inspection of ICMISS that was conducted by the New Jersey

Division of Consumer Affairs Enforcement Bureau (Bureau). The Bureau had

received a report from the New Jersey Department of Health alleging

deficiencies in the care and treatment of Quartararo's patients. Around this same

time, the Board also had received additional complaints alleging that Quartararo

had engaged in intimate sexual relationships with two patients, Y.R. and K.D.1

As part of its investigation into the allegations of sexual misconduct, the

Board interviewed Y.R. and K.D. In Y.R.'s interview, she stated that she first

saw Quartararo as a patient in 2011 for neck pain following a car accident and

that he treated her from 2011 to 2016, performing at least three cervical fusions

amongst other procedures. She described Quartararo as "flirtatious" and that he

would take her hand during medical appointments "as if to comfort her and then

1 We use initials to protect the confidentiality of the victims pursuant to Rules 1:38-3(a)(2) and 1:38-3(c)(12). A-0425-22 3 end each visit with a hug." In April 2014, when Y.R. went to his office for

follow-up x-rays, she discussed her need for Social Security Disability due to

the effects of the multiple surgeries she had undergone, as well as the symptoms

of depression she was experiencing. Quartararo told Y.R. that he could help her

and, at the end of that visit, she went to give him a hug and kiss on the cheek

and he turned his head so that they kissed on the mouth. Y.R. told Board

investigators that the contact—the kiss—made her "angry and confused."

Months later, however, Y.R. returned to Quartararo's office for a check-

up and left a thank-you note for him with his staff in which she noted that she

thought there was chemistry between them and invited him to call or text her at

any time.

Over the next two years, Quartararo and Y.R. engaged in a "relationship"

which consisted of kissing, groping and petting twice in his office and once in

his car, and multiple phone calls and sexually explicit text messages that were

exchanged between the two of them. Y.R. denied ever having sexual intercourse

with Quartararo and told Board investigators that he had told her he could not

have sex with her because he would lose his license. Quartararo not only

admitted to the sexual relationship with Y.R., but he also disclosed to Board

A-0425-22 4 investigators that he knew Y.R. had a history of depression and that she was

taking Zoloft, although he denied knowing the extent of her depression.

The Board's investigation continued into Quartararo's sexual relationship

with K.D., on whom Quartararo had performed a cervical fusion on August 25,

2017. According to K.D., she and Quartararo had a sexual relationship that

began when Quartararo texted her and asked her out in 2017. The relationship

progressed quickly and lasted for approximately one year and included multiple

sexual encounters in and out of Quartararo's medical office and at his home.

K.D. also revealed to Board investigators that during the time she dated

Quartararo, she was "undergoing pain management and [her] emotional state

was low[.]"

Throughout the relationship, Quartararo sent K.D. money for shopping and

trips. At some point during the relationship, Quartararo asked K.D. to sign

statements: (1) stating that their relationship began before she became his

patient—two years earlier than it actually began; and (2) agreeing that she would

not sue him or report him to the Board. K.D. told investigators that she was on

Percocet when she signed the statements.

According to K.D., she started seeing a social worker for counseling because

of the stress she felt from her relationship with Quartararo and her concerns about

A-0425-22 5 his controlling behavior. K.D. also reported to Board investigators that Quartararo

had given her Valium and Focalin during their relationship whenever she spent the

night at his house.

Quartararo and K.D.'s relationship ended in July 2018 and, within that same

month, K.D. emailed a complaint about Quartararo to the Board. Approximately

one week before K.D. was scheduled to meet with Board investigators, Quartararo

gave K.D. $20,916, which K.D. told an investigator was "for school." Later,

Quartararo's attorney offered her more money to retract the statement she had made

to the Board about her relationship with Quartararo. In August 2019, K.D. advised

Board investigators that she had applied for a restraining order against Quartararo

because he had sent two men to question her neighbors about her, called her "angry

and yelling," told her that he had hired a private investigator to watch her, and

threatened that if she did not shut up, "he would make sure she was shut up for good."

Following the investigation into Y.R.'s and K.D.'s complaints, the Board

offered and Quartararo accepted an Interim Consent Order of Voluntary

Surrender to be Deemed a Temporary Suspension of his license to practice

medicine and surgery, which was filed on March 22, 2019, and made effective

A-0425-22 6 April 5, 2019.2 Under the consent order, Quartararo agreed to undergo a

psychosexual evaluation and treatment and not practice medicine or surgery

until further order of the Board. The consent order did not include a specific

license reinstatement date.

Quartararo sought intensive treatment at a residential treatment facility for

trauma and later out-patient therapy with Leigh Kolodny-Kraft, a therapist

specializing in love and sex addiction. Kolodny-Kraft referred Quartararo to

another treatment center for people with trauma issues in December 2019, where

he reportedly focused on "boundary violations." Kolodny-Kraft also had

Quartararo evaluated by Psychological Counseling Services (PCS) in Arizona

for two weeks, where he was nominated to participate in a leadership group for

"intensive process work." Quartararo also took a twelve-week course on ethics

in the medical practice. 3 Throughout this time, Quartararo continued regular

weekly therapy appointments with Kolodny-Kraft.

2 The consent order was made effective on April 5, 2019, to accommodate a "wind-down" period of Quartararo's medical and surgical practice and to permit him to perform surgeries scheduled to occur before April 5, 2019. 3 According to Quartararo, this course is conducted by Professional Boundaries Incorporated and utilized by New York and New Jersey as a certified course for medical professionals through the American Foundation for Addiction Research. A-0425-22 7 Approximately two years later, on May 5, 2021, Quartararo petitioned the

Board for reinstatement of his medical and surgical license.4 Following the

petition, on May 27, 2021, the Board filed an order to show cause and a seven-

count complaint against Quartararo, alleging, in the section titled "General

Allegations," that Quartararo maintained general orthopedic surgery privileges,

as well as privileges to perform laminectomies, disc replacements, spinal

fusions, spinal decompressions, and injections at ICMISS, but he had performed

surgeries at ICMISS with co-surgeons Drs. Ningning He and Thomas

Ragukonis, who did not have appropriate surgical privileges to perform these

procedures at ICMISS.

The complaint further alleged that Quartararo's performance of his medical

duties for patients E.S. (count one), D.C. (count two), Y.O. (count three), L.V. (count

four), and D.E. (count five) failed to meet the appropriate standard of care. As to

each of these five-named patients—the complaint further alleged that Quartararo

used and employed fraud, deception, and misrepresentation, contrary to N.J.S.A.

45:1-21(b); engaged in gross negligence that endangered the life, health, safety

4 Prior to the formal petition, Quartararo's counsel had submitted a March 4, 2020 letter to the Board requesting an opportunity for Quartararo "to appear before a Committee in order that the Board can make an in person assessment" of him and his efforts at rehabilitation. A-0425-22 8 and welfare of each of them, contrary to N.J.S.A. 45:1-21(c); engaged in

repeated acts of negligence, malpractice or incompetence, contrary to N.J.S.A.

45:1-21(d) as the each of them; and engaged in professional misconduct,

contrary to N.J.S.A. 45:1-21(e).

Additionally, the complaint alleged that Quartararo's impermissible

sexual relationships with Y.R. (count six) and K.D. (count seven) constituted

gross and/or repeated malpractice in violation of N.J.S.A. 45:1-21(c) and (d);

professional misconduct in violation of N.J.S.A. 45:1-21(e); a failure to comply

with regulations administered by the Board in violation of N.J.S.A. 45:1-21(h)

(specifically, engaging in sexual misconduct with a patient in violation of

N.J.A.C. 13:35-6.3); and the failure to be of good moral character as required

for licensing as a physician under N.J.S.A. 45:9-6. The Board sought the

temporary suspension of Quartararo's license to practice medicine and surgery.

On June 23, 2021, the Board amended its complaint to add an eighth count,

which mirrored the allegations concerning Quartararo's conduct as to the

patients identified in counts one through five but alleged Quartararo had directed

the conduct to an additional patient, V.C. The amended complaint is the

operative complaint for purposes of this appeal. The amended complaint further

alleges that Quartararo's interactions with E.S. (count one), D.C. (count two), Y.O.

A-0425-22 9 (count three), L.V. (count four), D.E. (count five), and V.C. (count eight), though

not involving sexual contact, nevertheless demonstrated his failure to be of good

moral character as required for licensing as a physician pursuant to N.J.S.A.

45:9-6.

The amended complaint sought an order: (1) temporarily suspending

Quartararo's license to practice medicine pending the conclusion of a plenary

hearing on the allegations; (2) suspending or revoking Quartararo's license; (3)

assessing civil penalties against Quartararo for each separate unlawful act

alleged; and (4) requiring Quartararo to pay investigative costs, attorney's fees

and costs, witness fees and costs, and trial and transcript costs.

In his answer to the amended complaint, Quartararo denied all allegations

related to the quality-of-care, fraud, and misconduct violations contained in

counts one through five and eight, involving E.S., D.C., Y.O., L.V., D.E., and V.C.

Quartararo, however, admitted to the sexual-misconduct allegations involving

Y.R. and K.D.

On July 14, 2021, the Board and Quartararo executed another interim

consent order, maintaining the temporary suspension of Quartararo's license

pending final disposition of the amended complaint. Thereafter, the matter was

A-0425-22 10 transmitted to the Office of Administrative Law (OAL) for a hearing as a

contested matter.

The OAL Hearing

An administrative law judge (ALJ) held hearings over nine non-

consecutive days, from September 10, 2021, through January 14, 2022. Because

Quartararo stipulated to facts underlying the sexual-misconduct allegations

contained in counts six and seven of the amended complaint as to Y.R. and K.D.,

the testimony was mostly focused on the "quality-of-care" allegations involving

E.S., D.C., Y.O., L.V., D.E., and V.C.

The Board presented its expert witness, Nomaan Ashraf, M.D., M.B.A.,

an orthopedic spine surgeon, who testified regarding the surgical procedures

performed by Quartararo and his co-surgeons. In addition to testifying on his

own behalf, Quartararo also presented: Randy Davis, M.D., an orthopedic spine

surgeon; Eugene Koh, M.D., an orthopedic spine surgeon and Associate

Professor at the University of Maryland; John Athas, M.D., a neuroradiologist;

Dr. Patrick J. Carnes, Quartararo's mentor and psychologist; and Kolodny-Kraft,

his therapist. Dr. Carnes and Kolodny-Kraft testified about Quartararo's efforts

at rehabilitation.

A-0425-22 11 The ALJ qualified Dr. Ashraf as an expert in the field of orthopedic spine

surgery.5 Dr. Ashraf testified that based on his review of patient records, including

pre- and post-operative magnetic resonance images (MRIs), Quartararo along with

his co-surgeons performed unnecessary spinal surgeries on each of the six former

patients named in the amended complaint. He also described the various surgical

procedures performed by Quartararo with the aid of operative reports and video

evidence of the surgical procedures. Dr. Ashraf defined the relevant medical terms

used in the medical reports to describe the procedures performed by Quartararo,

stating "[a]nything with ectomy means you're taking it out," referring to procedures

like laminectomies and discectomies. Dr. Ashraf testified that a disc herniation

occurs "when a piece of disc is moved out of place and pinching a nerve" and stated

"where the disc is what's causing the problem, you perform a discectomy" to remove

the part of the spinal disc that is causing pain. He further stated, "[i]f there's extra

bone on the lamina and it's pinching the nerve, you do a laminotomy or a

laminectomy. . . . And, when this part of the joint that's inside the spinal canal is

pinching the nerves, you take away that portion of the bone and that's called a

5 Quartararo did not object to Dr. Ashraf's qualifications as an expert in orthopedic spine surgery but objected to him opining on "endoscopic spine" surgery because Dr. Ashraf did not perform endoscopic surgeries. The ALJ ruled that Dr. Ashraf was qualified to testify as an expert in spinal surgery. A-0425-22 12 facetectomy." He defined "stenosis" as narrowing in the spinal canal, which is

treated with a foraminotomy.6 He also defined an endoscopic surgical procedure as

one done completely through a tube with the aid of a camera by "looking at the

screen to do the operation . . . not using your eyeball."

Dr. Ashraf addressed Quartararo's treatment of patient Y.O., a thirty-year old

victim of a motor-vehicle accident on whom Quartararo performed surgery.

According to Dr. Ashraf, Y.O.'s medical records, including pre- and post-surgery

MRIs, revealed that the surgical procedures Quartararo performed were not

medically necessary as there was "no evidence of annular tear, disc herniation, spinal

stenosis or significant neuroforaminal narrowing . . . the disc [was] completely

normal." Yet, Quartararo performed surgery consisting of "bilateral lumbar

laminotomy, foraminotomy, facetectomy with decompression of the nerve roots of

L5 and S1," which was done on the left and the right side of the spine, a discectomy

of L5-S1, an ablation of the medial branch nerve, annuloplasty and injection in the

6 A foraminotomy is a surgical procedure that widens the opening in the spine where nerve roots exit the spinal canal and relieves pressure on the nerves. Foraminotomy, JOHNS H OPKINS MEDICINE, https://www.hopkinsmedicine.org/health/treatment-tests-and- therapies/foraminotomy (last visited Oct. 24, 2024).

A-0425-22 13 right hip.7 In reviewing the description of Quartararo's procedure on Y.O.'s spine,

Dr. Ashraf testified that the procedure involved the removal of bone on both sides of

her spine. He further stated, "[t]here's no disc herniation, so you don't need a

discectomy . . . no stenosis so you don't need a foraminotomy, you don't need a

laminotomy. You don't need a facetectomy." Dr. Ashraf concluded that Quartararo's

surgery on Y.O.'s completely normal spine "is gross negligence."

As to patient, V.C., a male in his late fifties with a disc herniation on the right

side that had resulted in stenosis, Dr. Ashraf testified that Quartararo and co-surgeon,

Dr. He, performed unnecessary bilateral surgery. He opined that a right-sided

discectomy was the appropriate surgical procedure to address V.C.'s disc herniation,

which was on the right side, although other aspects of the surgical procedure were

clinically relevant. He also testified to inconsistencies between V.C.'s operative

report, which described using direct visualization, and the intraoperative images,

which showed endoscopic surgery. He found this was not possible, stating "[y]ou

cannot do an open procedure through an endoscope . . . they are not compatible with

7 The vertebrae of the spine are numbered and divided into regions: cervical, thoracic, lumbar, sacrum, and coccyx. Therefore, L5-S1 refers to a part of the area of the spine where the fifth vertebrae of the lumbar spine (L5) and the first vertebrae of the sacral spine (S1) meet in the lower back, also known as the lumbosacral joint. Spine Structure and Function, CLEVELAND CLINIC, https://my.clevelandclinic.org/health/body/10040-spine-structure-and-function (last visited Oct. 24, 2024). A-0425-22 14 each other." Dr. Ashraf concluded that based on V.C.'s post-operative MRI, there

was no lumbar laminotomy, partial foraminotomy or partial facetectomy on the right

or left side at the levels of the spine as described in Quartararo's surgical report and,

further, "there [had] been no change in the appearance of the disc herniations at L2-

3 . . . indicating that the manner of performing the discectomy [was] ineffective in

addressing the surgical pathology." Dr. Ashraf concluded that the post-surgical

radiology report did not mention a single change to V.C.'s spinal pathology and noted

that the post-surgical results therefore showed that Quartararo's surgery did not meet

the standard of care.

Dr. Ashraf testified that patients D.E. and L.V. had small disc herniations

without evidence of compression on the nerve and opined that bilateral surgery was

unnecessary in both cases. Dr. He was Quartararo's co-surgeon in both of these

surgeries. Dr. Ashraf made similar findings with respect to D.C., who was diagnosed

with a disc herniation and narrowing around the nerve root and whose surgery was

performed by Quartararo and Dr. Ragukonis.8 Dr. Ashraf concluded that there was

no evidence of spinal abnormality to indicate that surgery was necessary and that

Quartararo performed surgery despite the absence of any symptoms on the right leg

8 Dr. Thomas Ragukonis is a pain management physician who directed D.C. to Quartararo for spinal surgery after non-invasive treatment proved unsuccessful.

A-0425-22 15 as D.C. complained of pain only in the left leg. Further, he testified that D.C.'s MRI

did not support the need for bilateral procedures, and D.C. complained of worsening

pain and weakness following surgery, ultimately requiring additional surgery.

Dr. Ashraf did not testify about patient E.S. specifically. Quartararo's

testimony reveals that E.S. was a thirty-nine-year-old male with a history of low

back and left leg pain. Quartararo found that E.S. had three "bad discs," bilateral

stenosis, facet problems, and muscle weakness. As a result, Quartararo

performed an endoscopic discectomy and annuloplasty, a facetectomy, a

foraminotomy, and a rhizotomy on E.S. Quartararo entered a video into

evidence to demonstrate how a bilateral endoscopic procedure is performed,

and, on cross-examination, Dr. Ashraf testified he did not see in the video the

machinery that would be necessary to perform bilateral surgeries.

According to Dr. Ashraf, after reviewing the post-op MRIs, all the surgical

procedures at issue were performed using minimally invasive techniques such as

endoscopic surgery. However, Quartararo wrote in the patients' operative reports

that the surgeries were completed using a combination of both traditional "open"

surgical procedures and endoscopic techniques. Dr. Ashraf testified that the

medical evidence shows Quartararo performed only the minimally invasive

endoscopic procedures and did not perform the open procedures shown on the

A-0425-22 16 operative reports. When asked what the advantage is of operating partially with

endoscopic surgery and partially with open tubular surgery, as Quartararo had

allegedly done according to his reports, Dr. Ashraf stated that "[i]t makes no

sense. Nobody does a partially open procedure and a partially endoscopic

procedure. There's no logic to doing something like that, and that post-op MRI

shows that it was not done."

Regarding the fraud claims alleging that Quartararo had failed to properly

code surgical procedures that he performed on E.S., D.C., Y.O., L.V., D.E., and V.C.,

Dr. Ashraf testified that the "whole function" of the "operations" section on the first

page of the operative report was to list the procedures that were performed during

the operation. And, he testified that, despite "laminotomy" appearing on the first

page of V.C.'s and D.C.'s reports, their post-surgery MRIs revealed that

laminotomies had not been performed.

Quartararo admitted that he had not performed laminotomies on E.S., D.C.,

Y.O., L.V., D.E., or V.C., despite listing the procedure on the first page of their

operative reports. He stated the purpose of the "operations" section on the first page

was to put in the "coding descriptors of what we've done," but despite his admission

that he had not performed the laminotomies, he explained he had used the coding

descriptor for laminotomy because "if you don't write the code like that, it ends

A-0425-22 17 up getting flagged and then the billing department has a problem getting paid ."

He also contended that he had relied upon a coding expert and was advised "the

full code description was needed for reimbursement, not a partial description

which would require deletion of the wor[d] laminotomy."

Having stipulated to the sexual relationships with his former patients Y.R. and

K.D., Quartararo characterized the relationships as "boundary violations." He

described his relationship with Y.R. as a "texting relationship" but admitted holding

hands with and hugging her during their 2011-2013 office visits and claimed she had

misinterpreted that physical contact. He explained that if his patients were "having

difficult times" he would sometimes hold their hands and that he gave everyone a

hug at the end of the visit, male or female.

Quartararo described his relationship with K.D. differently, however,

admitting that he was "looking for love." He expressed remorse over his pursuit of

the relationship, stating, "I should not have—this boundary was mine to cross

and I crossed it. And for that I am very—I am very sorry." When asked on

direct examination what assurances he could give that he would maintain "the

proper ethics and professionalism and boundary" required were he to return to

the practice of medicine, he responded:

Well, again, I understand what happenings in my life led to this—led to this, you know, misunderstanding

A-0425-22 18 of—of how love works, really. And I think now I am capable of having a healthy relationship, which is something I—which is something I haven't had my whole life. These are things that I—so I definitely understand now. And there are, you know, very—there are very simple protocols to follow. I mean, if someone—if a patient expresses any type of interest, there are conversations that have to be had about—you know, about the confusion of, like, love and, like, gratitude. How—you know, this is—this is something that I know I will not ever entertain in my mind ever again.

Quartararo admitted that during the week prior to K.D.'s scheduled meeting

with Board investigators, he paid her $20,916 for the purpose of obtaining her

agreement not to report him to the Board. He maintained that K.D. had initiated

the transaction.

He also testified that he had spent much of the prior three-and-a-half years

putting work and time into examining himself to figure out "why this happened and

figure out how this happened and be able to . . . understand it so [he could] take steps

to correct it." He further testified that he got "a lot out of" treatment, including a

"deeper understanding of what was wrong with [him]" and "developed a lot of

resources" and coping skills in his many weeks of treatment at various treatment

centers where he participated in individual and group therapy sessions, including

with Kolodny-Kraft, and worked on what he characterized as "trauma issues." He

A-0425-22 19 acknowledged that he remained in ongoing treatment with Kolodny-Kraft for two

hours a week and expressed his intention to continue therapy with her.

Quartararo stated that he was "not trying to make excuses" for his behavior,

which he claimed had been triggered by his divorce. He "had practiced for almost

twenty years without incidents." His "contentious" divorce and "history of trauma"

and abuse brought "deep-seated [sic] issues" to the surface and he had difficulty

coping with the idea that he was alone.

Quartararo admitted that Dr. He did not have the requisite privileges when he

acted as co-surgeon in surgeries for V.C. and E.S. Dr. Ragukonis acted as

Quartararo's co-surgeon for D.C.'s surgery and, when asked at the hearing before

the ALJ to confirm that Dr. Ragukonis had hospital privileges at the time of

D.C.'s surgery, Quartararo testified that he could not remember whether Dr.

Ragukonis had the requisite privileges.

At the hearing, Quartararo also presented his treating therapist, Kolodny-

Kraft, who testified about his therapeutic and rehabilitation efforts. Kolodny-Kraft

diagnosed Quartararo as a love addict, not a sex addict. She testified that she began

treating Quartararo in June 2019, and at that time, they met for four hours a week

until around 2021, when they reduced their sessions to two hours a week. Kolodny-

Kraft also testified that therapy enabled Quartararo to look deeply into what he was

A-0425-22 20 feeling and why and to learn how to handle triggers when they arose. She testified

that his condition was triggered by the abuse he suffered in his marriage, which led

him to seek attention elsewhere. Kolodny-Kraft further stated that Quartararo's

condition was "situational versus something that [was] going to follow him for life."

She further testified that Quartararo did not have any predatory traits and would not

be a threat to patients and opined that Quartararo was "definitely rehabilitated"

because he "has moved past the shame" and self-disgust for his actions and blaming

others, to accepting responsibility for his actions. According to Kolodny-Kraft,

Quartararo could safely interact with patients again if he returned to practice with a

chaperone present and she explained that the use of a chaperone was "standard

protocol," similar to requiring drug screens for someone with a substance-abuse

issue. She emphasized her efforts to avoid any bias in favor of Quartararo by sending

him for other treatments, including at a "Betrayal Bond" workshop and PCS. She

also asked PCS to provide an independent evaluation of Quartararo.

Quartararo also called his psychologist, Dr. Carnes, to testify to his

rehabilitation efforts. Dr. Carnes' testimony mostly centered around a two-page

supplemental letter he sent to Quartararo's counsel in support of Quartararo's

reinstatement. Before the ALJ, Dr. Carnes acknowledged that "[Quartararo's]

judgment really was impaired when it came to his sexual behavior . . . ." He

A-0425-22 21 described Quartararo, post-treatment, as "a man who really [] sees the pain that he's

caused himself and others and I think is a very different man today."

Quartararo also presented expert witnesses, Drs. Davis and Koh, both of

whom the ALJ qualified as experts in the field of orthopedic spine surgery. Dr. Davis

and Dr. Koh underscored that the standard of care in medicine was "not one specific

thing, [but] a spectrum" and it was not unusual for spine surgeons to disagree about

which techniques were to be employed in any given case. Throughout Dr. Koh's

testimony, he reiterated that Dr. Ashraf's opinion should be considered in the context

of his surgical practice and that his practice differed considerably from Quartararo's.

Dr. Athas did not agree with Dr. Ashraf's conclusion that D.C.'s post-surgical

MRI results proved that Quartararo had not performed the surgery he claimed to

have performed on D.C. Dr. Ashraf based his conclusion on a comparison of D.C.'s

pre- and post-surgical MRIs; however, Dr. Athas reviewed the surgical MRIs using

contrast and opined that Quartararo had performed the correct surgical procedure,

which would be very difficult to perceive on an MRI without using contrast. Dr.

Athas emphasized the importance of reviewing the MRIs with contrast to confirm

the foraminotomy procedure was in fact performed on D.C. He demonstrated to the

ALJ how a comparison of D.C.'s pre-contrast MRI and post-contrast MRI showed

that a foraminotomy had been performed.

A-0425-22 22 The ALJ's Decision

The ALJ issued a comprehensive seventy-nine-page decision and

concluded that Quartararo's license to practice medicine and surgery should be

suspended for five years retroactive to the date that he temporarily surrendered

his license in April 2019. Addressing the sexual-misconduct claims—count six

as to Y.R. and count seven as to K.D.—the ALJ reviewed the stipulated facts

concerning Quartararo's admitted sexual misconduct and concluded that

"Quartararo violated N.J.A.C. 13:35-6.3 by engaging in sexual contact with

patients, seeking sexual contact with a patient, and having discussions of an

intimate nature with Y.R. and K.D."

Additionally, the ALJ determined Quartararo had "engaged in gross

malpractice, professional misconduct, failure to comply with regulations

administered by the Board, and failure to be of good moral character, in violation

of N.J.S.A. 45:1-21(b),(c), (d), (e), and (h) and N.J.S.A. 45:9-6 . . . ." In reaching

this decision, the ALJ found persuasive Kolodny-Kraft's efforts to avoid any

claimed bias on her behalf by sending Quartararo for separate treatment at a

"Betrayal Bond workshop" and the fact that Dr. Carnes observed and interacted

with Quartararo for an estimated eight-to-ten hours per week and twenty-hours

on the weekends for three years.

A-0425-22 23 As to the quality-of-care violations concerning E.S. (count one), D.C.

(count two), Y.O. (count three), L.V. (count four), D.E. (count five), and V.C. (count

eight), the ALJ concluded that each of the surgeries performed by Quartararo

met the standard of care, resulting in the dismissal of the following claims in

counts three, four and five for failure to meet the appropriate standard of care:

gross negligence that endangered the life, health, safety and welfare, contrary to

N.J.S.A. 45:1-21(c); repeated acts of negligence, malpractice or incompetence,

contrary to N.J.S.A. 45:1-21(d); and professional misconduct, contrary to

N.J.S.A. 45:1-21(e).

As to the fraud violations, the ALJ accepted Quartararo's reasoning that

he had listed laminotomy on the operative reports of the six surgical patients

because the procedures he performed did not have a separate billing code and

are included in the code for laminotomies. Thus, the ALJ dismissed the claims

of use and employment of fraud, deception, and misrepresentation, contrary to

N.J.S.A. 45:1-21(b), in counts one through five and eight.

However, as to the remaining claims in counts one, two, and eight, the

ALJ concluded that Quartararo had acted negligently when he performed

surgeries with Drs. He and Ragukonis because Dr. He did not have the requisite

privileges at ICMISS when he acted as co-surgeon in V.C.'s and E.S.'s surgeries,

A-0425-22 24 and Dr. Ragukonis did not have orthopedic privileges at ICMISS when he acted

as co-surgeon in D.C.'s surgery. The ALJ concluded that Quartararo's use of

non-privileged co-surgeons for these surgeries constituted gross negligence that

endangered the life, health, safety and welfare of his patients, contrary to

N.J.S.A. 45:1-21(c); and repeated acts of negligence in violation of N.J.S.A.

45:1-21(d), thus sustaining those claims in counts one, two, and eight.

The ALJ found Quartararo and his expert witnesses—Kolodny-Kraft, and

Drs. Athas, Koh, and Carnes credible. She found their testimony "truthful and

concise" and that it provided a "clear description of the tests and procedures that

were done."

The ALJ did not find credible Dr. Ashraf's testimony it would be

impossible for a surgeon and co-surgeon to do a simultaneous surgery. In

making this finding, the ALJ considered the video evidence Quartararo provided

as an exhibit showing it was indeed possible for two doctors to perform surgery

simultaneously. She also concluded Dr. Ashraf's testimony that Quartararo had

performed unnecessary surgery on Y.O. was not credible, because Dr. Ashraf

admitted he did not review Y.O.'s MRI, and he incorrectly interpreted V.C's. and

D.C.'s electromyographs (EMGs), among other noted deficiencies.

A-0425-22 25 Both parties submitted written exceptions and participated in oral

arguments and a two-day testimonial hearing during which the Board heard

additional testimony from Quartararo and his therapist. Kolodny-Kraft testified

that Quartararo could safely interact with patients if he returned to work with a

chaperone.

Quartararo argued that Dr. Ragukonis' purported lack of credentials had

not been pleaded in the complaint and, therefore, he did not have an opportunity

to properly address that issue at the hearing. He further argued that because the

Board had failed to plead this issue, the ALJ should not have considered it.

The Attorney General urged the Board to adopt the ALJ's findings and

legal conclusions regarding the sexual-misconduct allegations but not as to the

quality of care provided to E.S., D.C., Y.O., L.V., D.E., and V.C. The Attorney

General also requested that the Board use its medical expertise to modify the

ALJ's findings and to determine that Quartararo had failed to meet the standard

of care required under the law as to E.S., D.C., Y.O., L.V., D.E., and V.C. More

particularly, the Attorney General argued that the ALJ had failed to properly

evaluate the evidence concerning the need for surgery as to each of the

individual patients and in so doing did not consider that: bilateral surgery was

not warranted in patients E.S. and D.C. because their medical issues did not

A-0425-22 26 include complaints of bilateral pain and the MRI results did not support the need

for bilateral procedures; two of the surgeries listed in the operative reports were

never actually performed; some patient outcomes were not as expected; and the

surgeries did not meet the standard of care—specifically referring to D.C., who

had complained of worsening pain and weakness following surgery, ultimately

requiring additional surgery. The Attorney General also argued that the ALJ

had erred in relying on EMGs and discograms to determine whether a surgery is

needed.

Following its review of the record, including the ALJ's decision,

exceptions filed by the parties and the evidence presented during the hearing,

the Board, adopted "virtually all of the findings of fact and conclusions of law

in [the ALJ's] Initial Decision . . . . " However, the Board rejected the ALJ's

acceptance of Quartararo's explanation concerning the purported reasons his

operative reports included references to the laminotomies he admitted he had

not performed, finding instead that Quartararo had "prepared deceptive and false

records" in violation of N.J.S.A. 45:1-21(b). Thus, the Board did not dismiss

the fraud claims from counts one through five and eight, which had been

previously dismissed by the ALJ.

A-0425-22 27 The Board also reversed the ALJ's findings that Dr. Ashraf's testimony

was not credible, concluding that the difference in testing as part of a

determination for the necessity of surgery "reflect[s] the different approaches to

patient care of [Quartararo's] and Dr. Ashraf, rather than a lack of credibility"

on the part of Dr. Ashraf. The Board concluded that Quartararo had prepared

deceptive and false records and had engaged in acts of fraud, misrepresentation

and professional misconduct because Quartararo falsely claimed to have

performed laminotomies on his operative reports. In reaching its determination,

the Board relied on Quartararo's testimony that he had listed laminotomy on his

operative reports despite the fact that no such procedures had been performed.

The Board agreed with the ALJ that Quartararo's use of non-privileged co-

surgeons to assist him with surgery—Drs. He and Ragukonis—constituted

repeated acts of negligence in violation of N.J.S.A. 45:1-21(d).

On August 22, 2022, the Board filed its final decision, revoking

Quartararo's license for a minimum of seven years from the date of voluntary

surrender, April 5, 2019. The Board concluded that Quartararo's "misconduct

warrants a serious penalty in excess of that recommended by [the ALJ]" and that

he "flagrantly ignored, and in fact shattered professional norms when he engaged

in sexual misconduct with patients Y.R. and K.D." The Board specifically noted

A-0425-22 28 his attempts to cover up his misconduct, including paying K.D. money and

having her sign fraudulent documents in an effort to prevent her from reporting

his actions. The Board found Quartararo's conduct was "so egregious that the

only appropriate discipline is a license revocation."

The Board also imposed an aggregate monetary sanction of $343,909.75,

comprised of a civil penalty of $90,000, $61,684.75 in costs, and $192,225 in

attorney's fees. The Board required Quartararo to complete a "post-licensure

assessment program as part of his demonstration of fitness and competence to

return to the practice of medicine and surgery." The Board also reserved the

right to impose restrictions or limitations on Quartararo's practice, should his

license be reinstated, and permanently barred him from "ownership of,

employment in, or gaining financial benefit, either directly or through a third

party, from any surgery center . . . ."

Quartararo appealed, arguing the following:

POINT I

THE SANCTION IMPOSED BY THE BOARD WAS ARBITRARY, CAPRICIOUS, UNREASONABLE, AND LACKING SUPPORT IN THE RECORD.

A. REVOCATION WAS A DISPROPORTIONATE PENALTY

A-0425-22 29 B. PENALTY FAR EXCEEDS THOSE IMPOSED IN SIMILAR CASES

POINT II

THE PENALTIES AND COSTS IMPOSED BY THE BOARD WERE ARBITRARY, CAPRICIOUS, UNREASONABLE, AND LACKING SUPPORT IN THE RECORD.

POINT III

THE CREDIBILITY DETERMINATION OF DR. ASHRAF WAS ARBITRARY, CAPRICIOUS AND WITHOUT SUPPORT IN THE RECORD.

POINT IV

THE BOARD IMPROPERLY MADE DETERMINATIONS AS TO CLAIMS NOT PLED IN THE COMPLAINT REGARDING MISREPRESENTATION.

A. THE AMENDED COMPLAINT DID NOT CONTAIN AN ALLEGATION REGARDING MISREPRESENTATIONS REGARDING LAMINOTOMIES

B. [THE ALJ] REVIEWED THE FACTUAL ISSUE AND FOUND NO WRONGDOING

POINT V

THE BOARD MADE FINDINGS OF FACT WITHOUT SUPPORT IN THE RECORD REGARDING USE OF CO-SURGEONS.

A-0425-22 30 II.

We review final agency decisions—not administrative law judges' initial

decisions. See DiBlasi v. Bd. of Trs., 315 N.J. Super. 298, 301 (App. Div. 1998);

In re Dennis, 385 N.J. Super. 269, 375 (App. Div. 2006). When an agency's

final determination is based on the ALJ's findings of fact and credibility, we

defer to those determinations. See Burlington Bd. of Soc. v. G.W., 425 N.J.

Super. 42, 47 (App. Div. 2012). A reviewing board, however, is not bound by

an ALJ's legal conclusions, see A.M.S. ex rel A.D.S. v. Margate City Bd. of Ed.,

409 N.J. Super. 149, 159 (App. Div. 2009). "[W]hile [ALJ]s have primary

responsibility for conducting hearings in contested cases, the head of an agency will

himself exercise the ultimate options of adopting, rejecting, or modifying the

recommendations of the [ALJ] in each particular case[,]" and "it is the agency's

choice that governs." N.J. Bell Tel. Co. v. State, Dep't of Pub. Utils., Bd. of Pub.

Util. Comm'rs, 162 N.J. Super. 60, 76–77 (App. Div. 1978).

"An administrative agency's final quasi-judicial decision will be sustained

unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." In re Herrmann,192 N.J. 19, 27-28

(2007) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14,

27 (2011)). "The burden of demonstrating that the agency's action was arbitrary,

A-0425-22 31 capricious or unreasonable rests upon the party challenging the administrative

action." A.M. v. Monmouth Cnty. Bd. of Soc. Servs., 466 N.J. Super. 557, 565

(App. Div. 2021) (alterations omitted) (quoting E.S. v. Div. of Med. Assistance

& Health Servs., 412 N.J. Super. 340, 349 (App. Div. 2010)).

Our role in reviewing administrative actions is generally limited to three

inquiries:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (quoting In re Stallworth, 208 N.J. 182, 194 (2011)).]

Our review of disciplinary sanction determinations is limited. Div. of

Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183 (2007). A

court "has no power to act independently as an administrative tribunal or to

substitute its judgment for that of the agency. It can interpose its views only

where it is satisfied that the agency has mistakenly exercised its discretion or

A-0425-22 32 misperceived its own statutory authority." In re License Issued to Zahl, 186 N.J.

341, 354 (2006) (quoting In re Polk License Revocation, 90 N.J. 550, 578

(1982)).

"In light of the deference owed to such determinations, when reviewing

administrative sanctions, 'the test is whether such punishment is so

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

shocking to one's sense of fairness.'" In re Hendrickson, 235 N.J. 145, 159

(2018) (alteration in original) (quoting Herrmann, 192 N.J. at 28).

Quartararo argues the Board sanctions, financial costs and penalties are

arbitrary, capricious and unreasonable and lack support in the record. More

particularly, Quartararo does not challenge the Board's broad authority to

impose a license revocation under N.J.S.A. 45:1–21, but he maintains the seven-

year license revocation exceeds the punishment imposed on other physicians

who had engaged in similar sexual misconduct with patients. He further asserts

that because he had accepted responsibility for his sexual misconduct involving

his two former patients, his initial consent to the suspension of his medical and

surgical licenses, and the substantial unrebutted evidence of his professional

therapy and rehabilitation efforts, the Board's revocation decision was too harsh.

A-0425-22 33 By contrast, the Board asserts that Quartararo would have this court

"substitute its judgment for the Board's by reversing the revocation of his license

to practice medicine." Citing In re Zahl, 186 N.J. at 341, the Board also argues

its "imposition of revocation is not arbitrary or capricious and finds ample

support in the record, and should be affirmed."

In Zahl, the Attorney General filed an eight-count complaint against Zahl,

a physician, alleging various acts of misconduct, including "dishonesty, fraud,

deception, misrepresentation, false promise or false pretense," in violation of

N.J.S.A. 45:1–21(b); gross and repeated acts of negligence and malpractice, in

violation of N.J.S.A. 45:1–21(c) and (d); "professional or occupational

misconduct," in violation of N.J.S.A. 45:1–21(e); the creation of false patient

records, in violation of N.J.S.A. 45:1–21(h) and N.J.A.C. 13:35–6.5(b); and

failure to maintain good moral character, in violation of N.J.S.A. 45:9 –6. Id. at

344. None of the allegations in the complaint, however, related to the safety or

quality of the patient care rendered. Id. The Board found that Zahl had willfully

engaged in numerous dishonest acts over a course of years, including Medicare

and insurance fraud and maintaining improper patient records, and thus revoked

his medical license. Id. at 343. On appeal, we remanded the matter for

reconsideration of the license-revocation penalty, reasoning that although Zahl's

A-0425-22 34 behavior demonstrated a wide pattern of dishonesty, "there [was] no evidence

that any patient's health or safety was even minimally compromised." Id. at 351.

The Supreme Court reversed, holding the Board was within the bounds of its

statutory authority and discretion in revoking Zahl's license after the Board had

found Zahl to be a "fundamentally corrupt licensee." Id. at 343.

The Court in Zahl devoted substantial attention to the Board's authority to

supervise the practice of medicine and the interplay between the Medical

Practices Act (MPA), N.J.S.A. 45:9-1 to -27, and the Uniform Enforcement Act

(UEA), N.J.S.A. 45:1-14 to -27. Zahl, 186 N.J. at 352. In doing so, the Court

discussed the statutory and regulatory support for the Board's authority to adopt

rules designed to protect the health, safety and welfare of patients . Id. at 352-

53. The Court found the MPA grants the Board near exclusive authority to

promulgate rules and regulations to protect patients and licensees. See also

Brodie v. State Bd. Med. Exam'rs, 177 N.J. Super 523, 529 (App. Div. 1981)

(stating "[T]he Board has broad authority to adopt rules designed to protect the

health, safety and welfare of patients of its licensees.") (citations omitted).

Relying on the MPA, the Court in Zahl held that the Board's supervision

of the medical field is critical to the Board's fulfillment of its "paramount

obligation to protect the general health of the public." Zahl, 186 N.J. at 352

A-0425-22 35 (citing In re Polk, 90 N.J. at 565); see also Brodie, 177 N.J. Super. at 529.

Additionally, the Court found that under the MPA, a physician's licensure is

contingent upon a physician maintaining good moral character. See N.J.S.A.

45:9-6 (requiring that applicants for medical licenses make a showing of good

moral character); Polk, 90 N.J. at 576 (stating that N.J.S.A. 45:9-6's requirement

of good moral character does not solely apply to those seeking licensure but is

a continuing requirement).

The Zahl Court further discussed the interplay between the Board's

authority under the MPA and the UEA, confirming the UEA's purpose was "to

create uniform standards for 'license revocation, suspension and other

disciplinary proceedings' by professional and occupational licensing boards[,]"

and that the UEA works in tandem with the MPA to grant the Board disciplinary

powers over medical licensees. Zahl, 186 N.J. at 353; N.J.S.A. 45:1-14; Del

Tufo v. J.N., 268 N.J. Super. 291, 296 (App. Div. 1993). Those powers include

the right to suspend or revoke the medical license of a physician on proof that

the physician committed certain acts of misconduct. N.J.S.A. 45:1–21.

Quartararo asserts that the seven-year revocation of his medical and

surgical licenses must be reversed because the penalty is disproportionate when

compared to the Board's sanctions and penalties in other cases involving

A-0425-22 36 allegations of sexual misconduct by physicians. Quartararo contends that the

Board has an established practice of allowing doctors charged with sexual

misconduct to return to practice after terms of license revocation shorter than

the seven years imposed on him, with safeguards in place and after receiving the

appropriate course of treatment. He further asserts that he is willing to comply

with similar safeguards, including working with a chaperone, if he is permitted

to return to practice. In further support of his argument, Quartararo cites to

several Board decisions and unpublished court decisions that we do not

consider.9 See R. 1:36-3 ("No unpublished opinion shall constitute precedent or

be binding upon any court"). The sole published case cited by Quartararo is In

re Kim, 403 N.J Super. 378 (App. Div. 2008).

In Kim, we addressed the reasonableness of the Board's imposition of a

reprimand against an obstetrician/gynecologist who had applied for a medical

license in New Jersey after relocating from California. During the application

process, Kim disclosed that he had settled a prior malpractice action involving

his long-term relationship with a patient in his fertility practice, who happened

9 "[A]s a general matter, unpublished opinions are not to be cited by any court absent certain specified circumstances" set forth in Rule 1:36-3. Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012). None of the specified circumstances exists here. A-0425-22 37 to be another doctor, a radiologist. The patient had filed a complaint with the

California Medical Board after Kim ended the relationship. The matter,

however, was settled in California with no admission of wrongdoing by Kim.

After Kim moved to New Jersey and applied for a medical license, the Board

issued a reprimand contemporaneously with the grant of a state medical license.

Id. at 382. Quartararo cites to this case because Kim received only a reprimand

even though Kim had a long-term sexual relationship with a patient.

In Quartararo's case, however, the Board determined that revocation was

warranted because he preyed on two vulnerable patients, not one, employed

intimidation and coercion tactics to dissuade at least one of his victims—K.D.—

from testifying about the true nature of their relation, and resorted to making

threats resulting in the issuance of a temporary restraining order against him.

The Board also determined that "[Quartararo] flagrantly ignored, and in

fact shattered[,] professional norms when he engaged in sexual misconduct with

patients Y.R. and K.D." and attempted to cover up his misconduct, including by

"paying K.D. money, having her sign fraudulent documents in an effort to

prevent her from reporting his actions to the Board, and threatening her." And

the Board determined Quartararo's conduct "so egregious that the only

appropriate discipline is a license revocation."

A-0425-22 38 Kim is distinguishable because, unlike in Quartararo, there was no finding

of sexual misconduct by the California Board, no admission of wrongdoing, and

no adjudication of the merits of the allegations against Kim. Thus, Kim was in

a position too dissimilar from Quartararo's such that we are not persuaded that

Quartararo's penalty—license revocation—is disproportionate or unreasonable

given the numerous, varied, and serious offenses the Board determined he had

committed.

Applying the Court's analysis and holding in Zahl, we are persuaded that

in assessing the appropriate sanction, the Board considered several relevant

factors, including that he had: a sexual relationship with two patients with

known mental health issues; prescribed mood stabilizer medications to at least

one of his victims while she was spending the night at his home (K.D.);

employed threats of force against K.D. in an effort to dissuade her from meeting

with investigators and to conceal the extent of their relationship; and paid K.D.

$20,916 prior to her scheduled meeting with investigators. After considering

this evidence, the Board rejected Quartararo's arguments that he could safely

return to practice medicine and surgery because of therapy he had undergone,

stating "despite his assurances to the contrary, we do not believe that [he] is

ready to return to practice."

A-0425-22 39 We review the Board's decision under an arbitrary-and-capricious

standard. An agency's decision will be sustained unless there is "a clear showing

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." Herrmann, 192 N.J. at 27. To determine whether a decision meets this

standard, we weigh whether the agency has followed the law, whether the record

contains substantial evidence to support the findings on which the agency based

its action, and whether the agency reached a conclusion that could not have

reasonably been made on a showing of the relevant factors. Id. at 355-56. And,

it is Quartararo's burden to demonstrate that the Board's decision was arbitrary,

capricious or unreasonable and he has failed to do so. Dep't. of Ins. v. Universal

Brokerage Corp., 303 N.J. Super. 405, 409-10 (App. Div. 1997) (stating the

party challenging an agency decision has the burden of proving the decision is

arbitrary, capricious or unreasonable or is not supported by substantial credible

evidence in the record). Contrary to Quartararo's arguments, he failed to satisfy

this burden; the Board's decision is well-supported by undisputed and admitted

facts including the details of his sexual relationships with Y.R. and K.D. The

Board's decision is, thus, not arbitrary, capricious or unreasonable.

The Board enjoys broad statutory authority under N.J.S.A. 45:1–21, and

there is nothing improper about the Board's consideration of the record to

A-0425-22 40 support its modification of the ALJ's recommendation and its imposition of a

greater penalty. Indeed, in Zahl the Court upheld the permanent revocation of a

physician's license to practice medicine whose dishonest conduct was found to

be egregious despite not involving sexual contact or harm to a patient. 186 N.J.

at 341. See also In re Markoff License Revocation, 299 N.J. Super. 607, 613

(App. Div. 1997) (affirming the Board's decision not to reinstate the license of

a physician who had been convicted of multiple separate acts of mail fraud,

racketeering and racketeering conspiracy because the sanction did not "shock

one's sense of fairness") (citing Polk, 90 N.J. at 578). Given our deferential

standard of review, and in light of Zahl, we cannot conclude that the Board's

decision was arbitrary, capricious, or unreasonable or that the record presented

does not support a seven-year license revocation.

III.

In addition to generally arguing that the sanction and penalties imposed

by the Board are arbitrary, capricious and unreasonable, Quartararo argues that

the Board's determination that some of Dr. Ashraf's testimony was credible—

while also finding other aspects of his testimony were not credible—was

arbitrary, capricious and unreasonable, and without support in the record.

A-0425-22 41 We note that the Board, after adopting the majority of the ALJ's

recommended findings of fact and legal conclusions of law, modified the ALJ's

findings of fact in two key areas based on its own review of the evidence and

the medical expertise of its members. Specifically, the Board determined that

Quartararo had inappropriately and fraudulently prepared operative reports for

E.S., D.C., Y.O., L.V., D.E., and V.C. by referring to laminotomy procedures that

he had not actually performed. And, the Board rejected the ALJ's findings that

Dr. Ashraf was not credible because he gave no weight to EMGs or discograms

and because he testified that it would be impossible to do a simultaneous surgery

by two doctors despite Quartararo's video evidence depicting two surgeons

performing surgery together.

In its decision, the Board explained that it reversed the ALJ's

determination as to Dr. Ashraf's credibility because the ALJ had "failed to

account for the differing perspectives of practitioners who take different

approaches to treatment" and Dr. Ashraf's testimony that suggests he preferred

to rely on MRIs of the patients to determine whether surgery was necessary over

EMGs or discograms reflected his own preference but was not an indication that

he lacked credibility as the ALJ had determined. Further, the Board noted that

A-0425-22 42 it found "little, if any," probative value to Quartararo's video evidence because

it did not demonstrate the relevant surgeries at issue.

The Board did not modify the ALJ's findings that each of the surgical

procedures performed on E.S., D.C., Y.O., L.V., D.E., and V.C. met the standard

of care but did not agree with the ALJ's acceptance of Quartararo's billing excuse

for listing laminotomies in the six operative reports despite not performing

laminotomies. The Board stressed the importance of accuracy in operative

reports and found Quartararo's decision to list in the reports procedures that were

not performed, constituted the use or employment of dishonesty, fraud,

deception, misrepresentation, false promise or false pretense in violation of

N.J.S.A. 45:1-21(b), and professional misconduct in violation of N.J.S.A. 45:1-

21(e).

A Board's "duty of ensuring that the [ALJ]'s decision was based on a

preponderance of the credible evidence[,]" and its authority to "reject or modify

findings of fact, conclusions of law or interpretations of agency policy" are

unquestionable. Polk, 90 N.J. at 560; N.J.S.A. 52:14B-10(c); see also De Vitis v.

N.J. Racing Comm'n, 202 N.J. Super. 484, 490 (App. Div. 1985) ("[W]hile [ALJ]s

have primary responsibility for conducting hearings in contested cases, the head of

an agency will himself exercise the ultimate options of adopting, rejecting, or

A-0425-22 43 modifying the recommendations of the [ALJ] in each particular case." (internal

quotation marks removed)). "[W]here there is substantial evidence supporting" the

result of the examiner and the agency, "it is the agency's choice that governs." N.J.

Bell Tel. Co., 162 N.J. Super. at 77. "In rejecting or modifying any findings of fact,

the agency head" must state the reason for rejecting the findings and "make new or

modified findings supported by sufficient, competent, and credible evidence in the

record." N.J.S.A. 52:14B-10(c).

Applying these well-settled legal principles that permit the head of an agency

to adopt, reject, or modify, the recommendations as set forth in an ALJ's decision in

administrative matters, we observe no error in the Board's modification of the ALJ's

findings of fact after conducting its own review of the record and given the medical

expertise of its members. The Board explained in detail the reasons it rejected some

of the ALJ's findings. The Board reasoned that the ALJ's decision showed a failure

to appreciate that different doctors rely on different approaches to treatment, noting

Dr. Ashraf had urged reliance on MRIs, rather than EMGs or discograms, and

Quartararo preferred to use all types of testing as part of a determination for the

necessity of surgery. The Board concluded that a physician's alternative approach

to surgery is not indicative of a lack of credibility. The Board also appropriately

A-0425-22 44 considered that Dr. Ashraf's training and years of experience as an orthopedic spine

surgeon further supported its finding that his testimony was credible.

We therefore have no quarrel with the Board's modification of the ALJ's

recommendation as to Dr. Ashraf's credibility and its determination that Dr. Ashraf's

testimony was credible and should not have been disregarded by the ALJ. The Board

modified the ALJ's findings and conclusions solely related to the "inappropriateness

and fraudulent" nature of Quartararo's preparation of the six operative reports for

each of the named patients in the amended complaint, because the operative reports

referenced laminotomies, which Quartararo admittedly did not perform.

In fact, the Board clarified in its decision that "all of [its] determinations as to

penalty are based solely on the actual findings and conclusions as adopted and

modified, and not on any of the charges which were not ultimately sustained." The

Board further explained that it had not modified the ALJ's findings and conclusions

that the Attorney General had not established that each of the six surgeries at issue

were unnecessary or not properly performed as alleged in counts one through five

and eight of the amended complaint. On this record, we perceive no error in the

Board's decision.

A-0425-22 45 IV.

Quartararo objects to the Board's modification of the ALJ's findings and

its determination that he falsified patient records by labelling all procedures

performed on E.S., D.C., Y.O., L.V., D.E., and V.C. as laminotomies for billing

purposes. He contends that the Board erred because the ALJ found "no

misrepresentations . . . by listing a laminotomy in the preamble to the operative

report[s] for billing purposes." As we have previously explained, the Board may

modify the ALJ's findings of fact and recommendations and a reviewing Board

is not bound by an ALJ's legal conclusions. N.J.S.A. 52:14B-10(c).

Quartararo is correct that the Board considered his misuse of procedure

codes in his operative reports for laminotomy—although he admittedly did not

perform any laminotomies on E.S., D.C., Y.O., L.V., D.E., or V.C.—as a basis to

increase the ALJ's recommended sanction. The Board stated, "[Quartararo]'s

misconduct warrants a serious penalty in excess of that recommended by the

ALJ." Quartararo also contends that he had relied upon a coding expert and was

advised "the full code description was needed for reimbursement, not a partial

description which would require deletion of the wor[d] laminotomy." Despite

this explanation, however, Quartararo admitted he had not performed

laminotomies and that he had used the laminotomy code to ensure that he would

A-0425-22 46 be paid by insurance carriers. He did so rather than correctly coding the

procedures he actually performed because of the risk he would otherwise not be

paid.

In its decision, the Board expressly stated, "[a]lthough [the ALJ] accepted

[Quartararo]'s explanation, we draw a different conclusion," and found that

"[o]perative reports . . . must accurately reflect the procedures that a surgeon

performed. That [Quartararo] chose to list a procedure that was not performed,

even for billing purposes, is inappropriate." The Board found this practice to

constitute the use or employment of dishonesty, fraud, deception,

misrepresentation, false promise or false pretense in violation of N.J.S.A. 45:1 -

21(b), and professional misconduct in violation of N.J.S.A. 45:1-21(e).

The Board relied on In re Silberman, which held that the Board can apply

expertise and specialized knowledge in evaluating a case, and concluded that

operative reports must accurately reflect the procedures that a surgeon

performed. 169 N.J. Super. 243, 256 (App. Div. 1979). In reaching this

conclusion, the Board considered another critical fact: that the improper coding

of these procedures "caused confusion for the experts in the matter" as is evident

in Quartararo's own expert reports—the reports of Drs. Davis and Koh, which

inaccurately stated that laminotomies were performed on patients, which the

A-0425-22 47 Board attributed to the fact that the first page of the operative reports included

"laminotomy."

Because the Board modified the ALJ's findings of fact and legal

conclusions on the question of whether Quartararo had violated the law by

mislabeling the operative reports for coding purposes, we apply a "careful

appellate review." In re Lalama, 343 N.J. Super. 560, 565-66 (App. Div. 2001).

Although not required to defer to an ALJ's findings, the Board "is not free to

brush aside or disregard [them] without comment." Id. (quoting In re Waterfront

Dev. Permit No. WD88-0443-1, 244 N.J. Super. 426, 436 (1990)). Our careful

review of the record and the Board's reasoning for its modification of the ALJ

decision persuades us that there is nothing objectionable about the Board's

imposition of a penalty against Quartararo based on his admission that he

miscoded surgical procedures to ensure payment, rather than to seek out a

proper, legal resolution to any anticipated insurance coverage issues. Indeed,

given the Board's statutory mandate to supervise the medical field, to ignore a

critical issue such as the improper coding and indeed the falsification of patient

records, as the Board also noted in its decision, would contradict that obligation.

See In re Polk, 90 N.J. at 565. Under these circumstances, we reject Quartararo's

arguments that reversal is warranted.

A-0425-22 48 We next address Quartararo's arguments challenging the Board's

determination that he violated the standard of care by performing various

surgical procedures using co-surgeons who lacked the requisite privileges and

credentials. Quartararo argues that the Board's "finding regarding negligence in

the use of co-surgeons at surgery centers should be stricken, as arbitrary,

capricious and without support in the record." He maintains that Drs. He and

Ragukonis held "the relevant privileges at New Century[,]" but he incongruously

admits that "the surgery center's failure to credential Dr. He was, in fact, an

administrative oversight . . . ." He also maintains that the Board did not raise or

allege in its amended complaint any issue concerning Dr. Ragukonis' privileges

to serve as his co-surgeon and the Board, by its decision, "denied the doctor his

basis due process rights." Quartararo asserts that he addressed this issue in his

"exceptions brief" and provided documentation showing "relevant portions of

Dr. Ragukonis' credentialing file including privileges held in 2016, which were

in effect at the time of the procedure on Patient D.C."

In its decision, the Board acknowledged Quartararo's efforts to contest the

ALJ's findings as to Dr. Ragukonis but determined that under N.J.A.C. 1:1-

18.4(c), "evidence not presented at a hearing shall not be submitted as part of an

exception . . . ." The Board accepted the ALJ's findings that there was no proof

A-0425-22 49 that Dr. Ragukonis had privileges at the time of D.C.'s surgery, finding that

under N.J.A.C. 1:1-18.4(c), Quartararo could not present new evidence in his

exceptions suggesting that Dr. Ragukonis had the requisite privileges.

Based on this record, the Board's findings that Quartararo performed surgery

with co-surgeons who did not have the requisite surgical privileges when they

performed surgery on E.S., V.C., and D.C., is unassailable because Quartararo did

not show at the OAL hearing that either Drs. He or Ragukonis had surgical privileges

at ICMISS. The Board based its decision on the evidence adduced at the hearing

and we see no basis to disturb its determination that Quartararo performed surgery

with Drs. He and Ragukonis, who did not have the requisite privileges at the time.

In reviewing the Board's decision regarding the substantive allegations made

against Quartararo, we reject Quartararo's arguments that the penalties imposed by

the Board are arbitrary, capricious and unreasonable in light of all of the

circumstances. We reach this determination based on our review of the Board's

comprehensive decision, which emphasizes Quartararo's sexual misconduct with

Y.R. and K.D. The Board's decision makes clear that Quartararo's sexual

misconduct was central to its finding that license revocation was warranted for a

minimum of seven years. In addition to finding that Quartararo "preyed" on Y.R.

and K.D., the Board found that he "exploited their feelings for him," and that "[e]ven

A-0425-22 50 absent the additional findings[,] . . . [Quartararo]'s misconduct evidences such a

breach of [its] professional standard and the public trust that a stronger penalty [was]

mandated to preserve the integrity of [the] profession and to protect the public." The

Board condemned Quartararo's conduct and concluded that it did not believe that

Quartararo was ready to return to practice despite his counseling, therapy and ethics

courses. We discern no abuse of discretion in the Board's imposition of a seven-year

lengthy but appropriate license revocation for Quartararo's egregious conduct.

V.

Finally, we consider Quartararo's assertions that the imposition of

financial penalties in the amount of $340,000, inclusive of attorney's fees and

costs is unsupported by the record and must be reduced. In support of this

argument, Quartararo points to the fact that he was successful in defending

against most of the counts in the amended complaint and argues that the fees are

therefore disproportionate to the offense and shocking to one's sense of fairness.

The Attorney General's Office, sought attorney's fees on behalf of the Board

in the amount of $307,560 and aggregate costs of $98,695.60, which was comprised

of $51,636.60 in investigative costs, $37,900 in expert witness fees, and $9,159 in

reporter and transcript fees.

A-0425-22 51 The Board found that the application included "adequate documentation"

warranting "entry of an order awarding all costs and fees." At the request of both

parties, the Board applied the "lodestar" principles established in Rendine v. Pantzer,

141 N.J. 292, 334-40 (1995), to the State's application and took notice of Poritz v.

Stang, 288 N.J. Super. 217, 221 (App. Div. 1996) Consistent with Rendine, the

Board found the Attorney General's hourly rate reasonable and acknowledged that

"the complexity of the subject matter and the seriousness of the allegations"

warranted the "time and expense." Significantly, however, "the vast majority of

claims made in three of the eight counts of the amended complaint were dismissed."

As a result, the Board reduced the amount of costs and attorney's fees from what the

Attorney General sought by 37.5% and imposed $61,684.75 in costs and $192,225

in fees accordingly.

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, 141 N.J. at 317). Moreover,

it is well within the Board's authority to calculate and impose reasonable

financial penalties and attorney's fees.

Because we are satisfied that the Board's fee award was based on

"sufficient credible evidence in the record," and the correct application of the

A-0425-22 52 analysis in Rendine, we reject Quartararo's arguments that the Board erred by

imposing the financial penalty and costs.

To the extent we have not addressed any remaining arguments, we

conclude they are without sufficient merit to warrant discussion in a written

opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

A-0425-22 53