A meeting of the New Jersey State Board of Medical Examiners was held on Wednesday, March 11, 2009 at the Richard J. Hughes Justice Complex, 25 Market Street, 4th Floor Conference Center, Trenton, New Jersey for Disciplinary Matters Pending Conclusion, open to the public. The meeting was called to order by Ms. Karen Criss, Chairperson for Open Disciplinary Matters.

PRESENT

Board Members Cheema, Criscito, Criss, Haddad, Lambert, Lomazow, Mendelowitz, Nussbaum, Reichman, Scott, Stanley, Walsh, and Wheeler.

EXCUSED

Board Members Ciechanowski, DeGregorio, Jordan, Paul, Salas-Lopez, Strand and Weiss.

ALSO PRESENT

Deputy Attorneys General Savage, Warhaftig, Puteska, Gelber, Joyce, Dick, Levine, Flanzman, Ehrenkrantz and Ringler; Executive Director William V. Roeder and Mary Lou Mottola, Executive Director of the Medical Practitioner Review Panel.

RATIFICATION OF MINUTES

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO APPROVE THE MINUTES FROM THE FEBRUARY 11, 2009 BOARD MEETING.

HEARINGS, PLEAS, AND APPEARANCES

1. ZAHL, Kenneth, MD pro se
Jeri Warhaftig, DAG
James Savage, DAG

Dr. Cheema was recused in the matter and left the meeting.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR DELIBERATION ON VARIOUS MOTIONS AND ADVICE OF COUNSEL.

Motion was made by Dr. Criscito and seconded by Mr. Walsh.

All parties, except counseling and administrative staff, left the room.

Returning to open session, the Board continued with its meeting.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO RATIFY DR. MENDELOWITZ’ DENIAL FOR A MOTION FOR A STAY AS THE MATTER WAS ORIGINALLY SCHEDULED IN FEBRUARY AND THE PARTIES WERE NOTIFIED IN DECEMBER 2008. MANY OF THE SUBMISSIONS AND REQUESTS MADE BY DR. ZAHL WERE NOT GERMANE TO THE ISSUES OF THE STAY OR EXCEPTIONS TO THE INITIAL DECISION. AFTER REVIEW OF ALL THE PAPERS, INCLUDING THE ATTORNEY GENERAL’S RESPONSES, NO PERSUASIVE BASIS WAS PRESENTED TO THE BOARD TO GRANT THE STAY AND NO NEW INFORMATION WAS PRESENTED ON THE REQUESTS FOR RECONSIDERATION.

Motion was made by Dr. Lambert and seconded by Dr. Reichman. The matter passed unanimously.

THE BOARD, UPON MOTION MADE AND SECONDED, ALSO VOTED TO AFFIRM DR. MENDELOWITZ’ DECISION TO DENY THE REQUEST TO ISSUE AN ORDER OF DISCOVERY OF THE "EDITING" PROCESS OF THE ALJ’S INITIAL DECISION. THE BOARD DOES NOT HAVE AUTHORITY TO ORDER DISCOVERY OF THE OFFICE OF ADMINISTRATIVE LAW AND DR. ZAHL HAS NOT PROVIDED ANY LEGAL AUTHORITY FOR IT TO DO SO. FURTHERMORE, THE OAL HAS CONFIRMED THAT THE INITIAL DECISION BEING REVIEWED BY THE BOARD IS THE DECISION THAT ALJ GERSON ISSUED.

Motion was made by Dr. Criscito and seconded by Dr. Nussbaum. The matter passed unanimously.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO RATIFY DR. MENDELOWITZ’ MOTION TO DENY TO PERMIT DR. ZAHL TO ADD TO THE MOTION FOR SANCTIONS TO INCLUDE THE ISSUES OF THE NEW ALLEGATIONS CONCERNING THE PREPARATION BY THE ALJ OF THE INITIAL DECISION BECAUSE IT IS NOT A MATURE, DEVELOPED ALLEGATION, BUT RATHER A SECONDARY MEANS OF ATTEMPTING TO GET DISCOVERY WHICH ALREADY HAD BEEN DENIED.

Dr. Haddad made the motion and seconded by Dr. Scott. The matter passed unanimously.

Dr. Zahl was informed at the onset that Dr. Cheema was recused. Drs. Paul and Ciechanowski were not present so their recusal issues were moot.

Dr. Criscito is no longer recused because at the time that he was recused, it was based on representation of Dr. Zahl by the Kern firm which is no longer the case.

Dr. Lomazow’s issue was dealt with during the Temporary Suspension and, at that time, it was determined that he could participate. His neutrality continues and there was nothing new to support the recusal.

Dr. Zahl also requested that Dr. Paul (not participating at the hearing), Ms. Criss and Mr. Walsh recuse because of their "long time" relationship with Mr. Kenny. Both Ms. Criss and Mr. Walsh stated on the record that their relationship with DAG Kenny was on a professional basis and neither believed that there was any basis for such recusal.

In his papers, Dr. Zahl asked that the Board be recused because it is a party to the Federal case and it would be improper for the Board to make a decision on fines or penalties. In short, he argued that the Board was in the position to impose penalties which could impact his ability to fund future legal expense to a case in which the Board was a party. The Board would not recuse.

Dr. Zahl noted for the record that he was pro se and, prior to the hearing, handed a certified copy of a basis for a stay to DAG Warhaftig which was filed in the Appellate Division. The Board accepted this as informational.

Dr. Zahl objected to the recusal decisions and asked that it be reconsidered and he again explained the reasons that Dr. Criscito should recuse. The Attorney General responded that the record should be clear that this information was presented to the Board and she did not object to Dr. Criscito’s continued participation. Ms. Criss reaffirmed that Dr. Criscito would continue to participate.

The Board first hear oral argument on Dr. Zahl’s Motion for Sanctions.

Dr. Zahl argued that Zahl I was a matter in which no patient harm was found and the Board revoked his license almost six months ago for overpayment by Medicare. During the Appellate proceeding, a billing monitor was put in place. It was hoped that this would actually be a settlement of the matter. At the time, Dr. Zahl’s office was fully staffed. He said in Zahl I the issue was about overlapping of time and he never over billed a patient at any time. He also believed that his civil rights were being violated, but nonetheless he agreed to it. Dr. Zahl said he eventually realized that the practicing monitor was discussing his practice with DAG Harper. Eventually, an Interim Consent Order was entered into and eventually the Zahl II case began. He outlined the history of the Zahl I case. He opined that Zahl II was designed to be heard just at the time that the Supreme Court was to render its decision.

Dr. Zahl continued by arguing that the prosecuting Deputies were obligated to reveal discovery. During the hearing, he asked the location for the records forming the basis of the Attorney General’s cause of action and initially was told that the records were at Halsey Street. Although he kept asking, he never received them. In fact, according to Dr. Zahl, the originals have never been located. Some work copies were found and even though he has asked for additional discovery, he has been denied.

Other issues that needed to be reviewed related to the subpoena issued to Dr. Yulo. Dr. Zahl said he was called back in to testify when the ALJ decided to have the case move forward, sometime in February 2007. When questioned about the documents, he denied getting the subpoena for the documents. During a coffee break, Dr. Zahl noticed that DAG Jesperson had the original. He had it all along and according to Dr. Zahl, this was just one example of the prosecutor’s improper prosecution of the case. Dr. Zahl said it was sanctionable then and continues to be sanctionable. While the Attorney General will argue that this is just another example of Dr. Zahl’s antics, he was convinced that a jury would find in his favor. If the Board denies this, Dr. Zahl said it was one more injustice against him and will just be added as part of his civil action.

In his opening, the Deputy Attorney General said these were arguments of an irrational licensee and once again, Dr. Zahl was attempting to malign deputies with his unsupportable illogical arguments. In December 2005, DAG Kenny issued a demand for Statement Under Oath to Dr. Yulo for work performed at Dr. Zahl’s office. Dr. Yulo provided handwritten answers which apparently contained attachments – operative reports, pay stubs and schedules. There was a hearing and the allegations were that Dr. Zahl had been evading the Board’s monitoring order and that he had attempted to cover this up. He claimed that Dr. Yulo performed the services, when indeed he did not. DAG Savage continued that while the attachments were not entered, there was sufficient evidence entered which justified the temporary suspension as ALJ Gerson’s decision found. In February 2006, a subpoena for documents was issued by Dr. Zahl and in responding, it was discovered in the files a handwritten response by Dr. Yulo with operative reports and pay stubs. The handwritten response did reference schedules and the contents immediately were turned over. Dr. Zahl had the opportunity to question Dr. Yulo about the documents during the deposition at the OAL. According to DAG Savage, Dr. Yulo did not have a good recollection of the procedures. He looked for responsive documents and sent those to DAG Kenny. He did not retain copies of the documents that were sent. The originals were always with Dr. Zahl. At the deposition, Dr. Zahl asked Dr. Yulo questions about the documents. DAG Savage stressed that the documents, while misplaced, were produced and again in February 2007, during the plenary hearing, the same motion was made before the ALJ. Each time, Dr. Zahl seemed to be arguing that there should have been records which Dr. Yulo performed procedures and there were none. If those documents existed, Dr. Zahl would have been the one to maintain them. In any event, even as Judge Gerson determined at that time, it was not germane to Zahl II. The charges made against Dr. Zahl were that on at least 55 occasions, Dr. Zahl performed procedures outside those permitted under the terms of the monitor and in many of them, Dr. Zahl tried to cover his tracks by fixing Dr. Yulo’s name to the procedures. DAG Savage said that procedures or documents concerning the procedures performed by Dr. Yulo were, and continue to be, irrelevant. While Dr. Zahl argues that the Deputies destroyed evidence, there is no support in the record to substantiate such allegations. Similarly, the allegations that DAG Jesperson committed perjury had been clearly denied. The only proof that the Board is being asked to accept, said DAG Savage, is Dr. Zahl’s assertion that it happened. Such assertions do not rise to the level of the court’s test of spoliation of evidence or even non-production of evidence. DAG Savage opined that this was one more, desperate attempt by Dr. Zahl to not take responsibility for his actions and continue to spew frivolous motions.

In rebuttal, Dr. Zahl accused the Deputies that they have fallen short of the oath they had taken to support. He could not believe that the Deputy does not have an evidence list. From the onset, every time that he asked for the documents, the response was even more evasive than the one before. Dr. Zahl did not mean to imply that every prosecutor does not live up to the rules of professional conduct, but as much as he did not want to admit it, he believed that DAG Kenny did not live up to them and unfortunately, has mentored those under him to follow such sloppy practices. He acknowledged that some procedure reports were handed over, however, the full gamut of documents has never been produced. He posited that the exculpatory evidence has been misplaced or destroyed.

Dr. Zahl asked the Board to again review his papers and asked that the Board dismiss the case. He renewed his request to the Board to seek to add the allegations of the improprieties associated with the preparation of the ALJ Gerson decision to his motion and to seek discovery on those issues.

DAG Savage questioned why the "exculpatory copies" of documents that Dr. Zahl believes existed, were not produced. If such documents existed, they would be in his file. At best, there was a minor discovery mistake made here. He asked the Board to dismiss this motion and award attorneys fees and costs for having to respond to Dr. Zahl’s frivolous motion.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR ADVICE OF COUNSEL AND DELIBERATIONS.

Motion made by Mr. Wheeler and Dr. Nussbaum seconded it.

All parties, except counseling and administrative staff, left the room.

Returning to open session the Board announced the following:

THE BOARD NOTED THAT THIS MOTION WAS NOT RENEWED AS OFFERED BY ALJ GERSON AT THE CLOSE OF THE HEARING AND THE BOARD QUESTIONS WHETHER OR NOT IT IS TIME BARRED AT THIS JUNCTURE UNDER RULE 1:14-.1.10. NONETHELESS, THE BOARD, UPON MOTION MADE AND SECONDED, AFTER EXAMINING THE INFORMATION PRESENTED, VOTED TO DENY THE MOTION FOR SANCTIONS AND AGREED WITH THE ALJ THAT DR. ZAHL HAD NOT MET HIS BURDEN TO SUPPORT HIS APPLICATION FOR SANCTIONS. DR. ZAHL HAD THE PRECISE SAME DOCUMENTS AND THE ALLEGED FAILURE TO PRODUCE THE DOCUMENTS DID NOT APPEAR TO HAVE CAUSED ANY HARM TO DR. ZAHL. THE MATERIAL THAT WAS PRODUCED WAS NOT ENTERED INTO EVIDENCE AT TRIAL AND THE BOARD QUESTIONED THEIR RELEVANCE. ADDITIONALLY, TESTIMONY IN THE TRANSCRIPTS DEMONSTRATES THAT DR. YULO TOOK HOME REPORTS FOR PROCEDURES THAT HE DID NOT DO BECAUSE HE WAS LEARNING AND FOUND THEM INTERESTING. FURTHERMORE, IT APPEARS THAT THE DOCUMENTS WERE PRODUCED FROM AN ELECTRONIC RECORD KEEPING SYSTEM AND COULD HAVE BEEN AVAILABLE TO DR. ZAHL HIMSELF. THE ATTORNEY GENERAL VOLUNTARILY PRODUCED DOCUMENTS AS SOON AS THE DOCUMENTS WERE DISCOVERED.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED THAT THE ATTORNEY GENERAL’S MOTION FOR ATTORNEY FEES AND COSTS FOR FILING A FRIVOLOUS MOTION IS PREMATURE BUT CAN BE RENEWED AT THE END OF THE CASE IN THE EVENT LIABILITY IS FOUND.

Dr. Reichman made the motion and Mr. Walsh seconded it. The Motion passed unanimously.

The Board began its hearing on the exceptions to the Initial Decision. Dr. Reichman left the meeting and did not participate further in this portion of the hearing.

Dr. Zahl had some questions concerning evidentiary matters and requested a side bar with the prosecutor and the counseling deputy to the Board.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR THE ADVICE OF COUNSEL AT THE REQUEST OF DR. ZAHL.

All parties, except counseling and administrative staff, left the room.

Returning to open session the Board announced the following:

Ms. Criss reminded the parties that the letter scheduling the matter indicated that the parties were afforded twenty minutes per side for argument. If additional time was needed, the party could renew its request for additional time.

DAG Warhaftig urged the Board to adopt the findings of fact and conclusions of law. She argued that the penalty and costs recommended were inadequate and if liability were imposed, she believed the Board would see fit to increase both.

Turning her attention to Summary Decision on Count IV of the Verified Complaint, DAG Warhaftig argued that the facts of Count IV were verified and undisputed and not dealt with below. The Initial Decision did not address it. At the heart of Count IV, Respondent’s dispute was with the billing direction of URS. She reminded the Board that at the time, Respondent was in a Consent Order (Evidence B-4) in which he agreed to consult with the billing monitor and if determined that the billing was inappropriate, then he would conform his billing as recommended by the billing monitor. USR (the monitor) would also break out the patient care and would break out the care and the billing. Dr. Zahl objects to these documents which were handed out claiming that he never heard back from the Medical Director as to the validity of the reports made by USR. Dr. Zahl objected to the use of the documents, however, Ms. Criss denied the objection because all the materials were provided to Dr. Zahl below and entered into evidence.

Continuing with her argument, DAG Warhaftig noted that at OAL, Dr. Zahl acknowledged receipt of the documents and testified that he was aware that his bills were not conforming to URS direction. It is undisputed that he never corrected the bills, nor did he reissue them. In total, there were more than 44 incorrect bills which allowed him to bill for more procedures than those performed. DAG Warhaftig also noted that one does not know how many improper bills he sent out under Dr. Yulo because these were never reviewed by the billing monitor.

In classic fashion, as echoed in other findings by ALJ Gerson, Dr. Zahl evaded the rules, according to DAG Warhaftig. She urged the Board to find that the Board accept the findings of fact and conclusions of law of ALJ Gerson.

Dr. Zahl began addressing Count IV, billing issues. The OAL has rules that have been copied. He noted that during the last day of testimony in the case, the judge allowed the Attorney General’s office an additional sixty days to respond to papers. He also argued that the case was scheduled for a number of consecutive dates and this was difficult. It was determined that the posture of the case changed when he learned about Dr. Yulo.

Dr. Zahl continued that when he made the motion opposing the summary judgment, he noted that no one from the Board office ever sent him a Cease and Desist Order for the alleged impropriety of his behavior. Eventually, he stopped doing Medicare. At the time, ALJ Gerson asked if the prosecution was going to provide a witness and the Attorney General did not. For the same reason that the Judge dismissed Count III, he argued that Count IV should be dismissed. There was some question about how USR was doing the audits and he was trying to work with them on it. Dr. Zahl argued that many of the requests of USR seemed to be an attempt to bankrupt him and he had no direction from the Board to do anything different although the Medical Director was aware of what he was doing.

Dr. Zahl also addressed the issue of Elaine Caruso Long who sued him. She never appeared at the OAL and assisted the Attorney General with her case. Her case was ultimately dismissed, although it did drain his resources. The real question, according to Dr. Zahl, was what does the BME do with three different versions of the Initial Decision. Under the version faxed, it shows $10,000 in fine and costs while the Order says penalty, costs, and attorneys fees. There are multiple edits in the decision. He also noted on page eight, a false finding about JM was entered. There seems to be some confusion as to what medication JM might have received. In the decision, Versed is misspelled. On redirect, JM acknowledged that the record did not indicate that he had Versed. Demands of the production of the Initial Decision have been made by Dr. Zahl.

Dr. Zahl wanted to introduce copies of the edits made by the ALJ. The Attorney General did not believe that they were relevant, and objected to the admission. Also, there is an explanation by ALJ Sanders which explains why the edits were made. The Chair ruled that the documents were admitted into evidence and the Board would give it its due weight during deliberations. Dr. Zahl asked for an additional ten minutes and proffered that he wanted the time to make more arguments on the edits made by the ALJ. Ms. Criss would grant the additional time if the argument was limited to exceptions. The Board would not entertain a de novo decision on the issue to expand his motion.

Returning to argument, Dr. Zahl continued to argue that he had a limited time to render his decision. Then in December 2007, he asked the Board for reinstatement of his license. With the Federal case and the reinstatement issue, he forgot about this case. He asked the Board to review his exhibits and noted that the Board should pay attention to the e-mail confirming that the decision was issued by ALJ Gerson. Dr. Zahl said the key exception was that no additional penalty should be imposed on him because the Board never objected to the provision of services even though it knew that it was being provided.

Dr. Zahl also asked that a special prosecutor should be assigned to this case because it was patently unfair.

DAG Warhaftig, in rebuttal, focused the Board on the post trial submissions. She reminded the Board that Dr. Zahl placed Dr. Yulo’s name on procedures that he did not perform. Additionally, in May 2004, Dr. Zahl agreed to an Order of the Board and, under that Order, agreed to follow certain terms and conditions. Unfortunately, Dr. Zahl did not adhere to those terms. Even when the billing monitor, URS, noted some difficulties and informed him of such, he did not change nor re-bill those that were improper. DAG Warhaftig continued that Dr. Zahl was subject also to a practice monitor who would oversee the procedures so that proper billings would be sent out. When the Attorney General requested the records of the unsupervised procedure, it was discovered that Dr. Zahl was billing for some services in Dr. Yulo’s name that had been performed by Dr. Zahl. DAG Warhaftig continued that there were more than 125 records that were not monitored, some of which were appropriate. However, Dr. Zahl also certified that Dr. Yulo was provided some services. At the onset, Dr. Zahl supervised and then when he was comfortable, he let Dr. Yulo work on his own. In 108 operative reports, Dr. Zahl placed Dr. Yulo’s signature on those records. At OAL, this was further narrowed down to a total of 55 reports which were uncontested. The Board reviewed a list of 55 procedures that Dr. Yulo did not perform yet were billed in his name. The testimony and evidence presented at the OAL overwhelmingly supported this conclusion. It was axiomatic that the physician that performed the procedures was the one who should be billing for them. Breaking it down further, DAG Warhaftig noted that only 15 of the 55 records show that Dr. Zahl was present during the procedures. She turned the Board’s attention to Exhibit 5. It is true that in some case, the CRNA did attach Dr. Yulo’s signature, but could not recall who directed her to do that.

In conclusion, DAG Warhaftig informed the Board that the ALJ heard all the testimony and reviewed all the evidence and found as to Count I that there were 55 records that Dr. Zahl evaded the monitoring requirements. She referred the Board to her prior arguments on Count IV. She stated that Dr. Zahl may be a competent physician, however, as stated by the ALJ character counts. She urged the Board to adopt the findings of fact and conclusions of law as recommended by the ALJ.

Dr. Zahl, in rebuttal, agreed that he showed Dr.Yulo how to sign the records and how to use the template. He was surprised that one would argue that because he was seen with surgical gloves then he must be performing services. His license had been revoked for a number of years and he accepted the Interim Order with the hopes that he would be able to continue practice. Dr. Zahl asked the Board to consider his thought that people have been out to get him. He recounted some personal problems and financial difficulties that he experienced over the years. He again tried to argue the edit issues.

In conclusion, he argued that he should have had a fair trial at all levels. At this proceeding, it should be vacated and considered null and void.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION.

Mr. Wheeler made the motion and it was seconded by Dr. Criscito.

All parties, except counseling and administrative staff, left the room.

Returning to open session the Board announced the following:

THE BOARD, AFTER CONSIDERATION OF THE RECORD AND EXCEPTIONS, UPON MOTION MADE AND SECONDED, VOTED TO ADOPT ALL THE FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE INITIAL DECISION OF ALJ GERSON WITH THE FOLLOWING MODIFICATION. THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO GRANT THE ATTORNEY GENERAL’S MOTION FOR SUMMARY DECISION OF COUNT IV. IT ALSO MODIFIED THAT DR. ZAHL’S FAILURE TO OBEY AN ORDER OF THE BOARD ENTERED BY CONSENT CONSTITUTES PROFESSIONAL MISCONDUCT AND A FAILURE TO COOPERATE WITH THE BOARD IN VIOLATION OF THE BOARD’S STATUTES AND REGULATIONS.

The Motion was made by Dr. Stanley and seconded by Dr. Scott and carried unanimously.

Turning to the mitigation phase, Dr. Zahl declined to offer any evidence in mitigation as he would be seeking an appeal immediately. He further argued that the decision was a nullity and, therefore, would not offer anything further at the time.

DAG Warhaftig opened by reminding the Board that discipline serves three goals: to punish, to rehabilitate and to send a message to the community. She posited that this case is a revocation case because Dr. Zahl had consistently ignored the Board’s regulations. The Board had found in Zahl I a panoply of bad acts, some of which were repeated in Zahl II when he was under a billing and practice monitor. Furthermore, he used Dr. Yulo in creating false medical records. The appellate court acknowledged that the record was replete with evidence where Dr. Zahl had entered doctors’ names in records even when the doctor was not even present at the facility. Dr.Zahl didn’t learn and while he was under monitoring, he continued to practice with the same deceit and reprehensible conduct. DAG Warhaftig stated that nothing short of revocation is merited by this case. As to costs, as of January 29, 2009, there were $147,000 in attorneys fees and costs.

She reminded the Board that it was empowered to impose 10K for the first and 20K for each subsequent. Dr. Zahl is a second offender. In Zahl I costs and penalties were imposed that totaled $30,000. DAG Warhaftig cited a number of cases of second offenders in which the Board entered revocation and $20,000 for each offense. The Board had found approximately 99 violations beginning with his response in the original demand for statement under oath. There have been 55 instances where he indicated someone else was the physician and 43 more where he failed to cure the mistake observed and recommended by USR. He should be assessed at a minimum, according to the deputy, a half a million-dollar penalty.

Dr. Zahl asked the Board to remember three words: punishment, guidance, and rehabilitation. He argued that he had been punished enough and this will just drain him in his civil rights action and the jury will look at that another day. The finding itself is in question and should be a nullity. Dr. Zahl said he is not sure how this offers any guidance except that the Board is arbitrary and capricious and he did not believe any penalty was appropriate. At best, he said it should not be more than what the judge had suggested.

He noted that bills were submitted for DAG Kenny and there fore should not be considered because they could not be certified. Also, he believed that any fees that relate to any punishment were not appropriate. Dr. Zahl also objected to the differing penalties in the versions with the edits of ALJ Gerson’s decision.

Dr. Zahl also asked for some mitigation because of the violation of his constitutional rights in that he did not have a speedy trial, was not provided with appropriate discovery, and there was constant delay created by the Attorney General. In summary, he opposes any fines whatsoever because it will be voided because it is based on a decision that is a nullity.

The Chair clarified that Dr. Zahl did have an opportunity to submit a written copy.

Dr. Zahl objected to any DAG Bernstein billing because he was a friend of DAG Kenny and he prolonged the litigation further. He also objected to providing his tax returns because he believed that he was entitled to the tax returns of those with whom he is in litigation.

In rebuttal, DAG Warhaftig pointed out for the Board that much was said about the edits of ALJ Gerson’s decision, and ALJ Sanders has offered an explanation for those edits. She asked the Board not to be distracted by that red herring.

She also reminded the Board that pursuant to its statute, it has the power to impose sanctions that it deems appropriate and in line with other decisions it has rendered. DAG Warhaftig also assured the Board that the application for costs had been already sanitized and that any costs attributable to DAG Kenny’s death have been removed.

Dr. Zahl noted that the edit of the decision was only one reason that he objected to the costs. He still maintained that any further imposition of a financial penalty would be unfair. He also thought that it was inappropriate to impose a revocation upon a revocation especially because that first revocation is on appeal.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO MOVE INTO CLOSED SESSION FOR DELIBERATIONS AND ADVICE OF COUNSEL.

Dr. Mendelowitz made the motion and Dr. Haddad seconded it.

All staff, except administrative and counseling staff, left the room.

Returning to open session, the Board stated the following:

THE BOARD, UPON MOTION MADE AND SECONDED, MODIFIED THE ALJ’ S DECISION AND VOTED TO REVOKE DR. ZAHL’S LICENSE BASED ON THE MULTIPLE VIOLATIONS. THE BOARD, IN VIEW OF THE OVERALL CIRCUMSTANCES OF THE MATTER, IMPOSED A FINE OF $50,000 FOR THE MULTIPLE VIOLATIONS, AND ASSESSED COSTS AT $100,000.

Dr. Mendelowtiz made the motion and it was seconded by Dr. Lambert. The Board voted unanimously in favor.

The administrative office verified that what was attached as 2KZ was a true and correct copy of the Initial Decision received by the Administrative Office from ALJ Gerson including the cover sheet and the same that was attached to Pat Prunty’s email from the OAL confirming it is the decision issued by ALJ Gerson. If Respondent wants a certified true copy he should request that from the administrative office

Dr. Zahl made a motion for a stay and informed the Board that he would be emergently appealing the Order.

THE BOARD, UPON MOTION MADE AND SECONDED, VOTED TO DENY THE STAY.

Mr. Walsh made the motion and it was seconded by Dr. Mendelowitz. Unanimously, the motion passed.

Dr. Zahl could order the transcript which would memorialize the decision.

Respectfully submitted,

Karen Criss, R.N., C.N.M., Chairperson
For Open Disciplinary Minutes