STATE OF CONNECTICUT DEPARTNIENT OF PUBLIC HEALTH HEALTHCARE QUALITY AND SAFETY A In re: Edwin Njoku, MD. - Petition No. 2012-106 SUMMARY SUSPENSION ORDER WHEREAS, the affidavits, duly veri?ed, and documentary evidence allege facts which Show violations of {520-1 3c of the Connecticut General Statutes, as amended, and which imperatively require emergency action in that the public health, safety or welfare of the citizens of the State of Connecticut is in clear and inaniediate danger; and, Pursuant to the authority of ??4?182(o) and pending the hearing set for the 7% day of 2012,?at 9:340 am. It is hereby ORDERED, by Vote of the Connecticut Medical Examining Board (hereinafter ?the B0 aid?) that license number 03 9145 of Edwin Njoku to practice medicine in the State of Connecticut is summarily suspended pending a ?nal determination by the Board regarding the allegations contained in the Statement of Charges. Further it is hereby ordered by vote of the Board that Edwin Njeku immediately surrender his license number 039145 to the Board,,4]0 Capitol Avenue, MS P.O. Box_340308, Hartford, CT 06134-0308 upon notification of this Order. . Dated at Hartford, Connecticut this day of 7?295 2012. Connecticut Medical Examining Bo?a'fd -- David Goldenberg, MD Board Member UT DEPARTMENT OF PUBLIC HEALTH PUBLIC HEALTH HEARING SECTION June 20, 2012 Richard Brown, Esq. Certified Mail #91 -7108-2133-3936-6420-2839 Brown Paindiris Scott, LLP VIA EMAIL 100 Pearl Street Hartford, CT 06103 Matthew Antonetti, Principal Attorney VIA EMAIL Department of Public Health 410 Capitol Avenue, MS PO Box 340308 Hartford, CT 06134?0308 RE: Edwin Njoku, M.D - Petition No. 2012-106 Dear Attorney Brown and Attorney Antonetti: Enclosed please find a copy of the Memorandum of Decision issued by the Connecticut Medical Examining Board in the above?referenced matter. Sincerely, Administrative Hearings Specialist/Board Liaison Public Health Hearing Section c: Jewel Mullen, MPA, Commissioner, Department of Public Health Daniel Shapiro, Assistant Attorney General Wendy Furniss, Branch Chief, Healthcare Systems Jennifer Filippone, Section Chief, Practitioner Licensing and Investigations A. Rioux, Paralegal Specialist Office of the Attorney General Bonnie Pinkerton, RN, Nurse Consultant, Department of Public Health David Tilles, Staff Attorney, Department of Public Health 860-509- 7648 FAX 860-509- 7553 Telephone Device for the Deaf: 91 410 Capitol Avenue - MS PO. Box 340308 Hartford, CT 06134 A?frmative Action /An Equal Opportunity Empfoyer STATE OF CONNECTICUT CONNECTICUT MEDICAL EXAMINING BOARD Edwin Nj oku, M.D. Petition No. 2012-106 License No. 039145 NIEMORANDUM OF DECISION Procedural Background On February 2, 2012, the Department of Public Health (?Department?) presented a Statement of Charges (?Charges?) and Motion for Summary Suspension to the Connecticut Medical Examining Board (?Board?) against Connecticut medical license number 039145 held by Edwin Njoku, M.D. (?respondent?). The Charges allege that respondent?s license is subject to disciplinary action pursuant to the Connecticut General Statutes (?Statutes?) 20?130, including, but not limited to, 20? l3c(4). Bd. Exh. l. The Motion for Summary Suspension was based on the Department?s information and belief that respondent?s continued practice represented a clear and immediate danger to the public health and safety. Bd. Exh. 1. On February 3, 2012, pursuant to 4?182(c) and l9a?l7(c) of the Statutes, the Board granted the Department?s motion and summarily suspended reSpondent?s license pending the Board?s ?nal determination on the allegations contained in the Charges. The Board set the first hearing date for February 17, 2012. Bd. Exh. 1. The Department served the Motion for Summary Suspension, Charges, Summary Suspension Order and Notice of Hearing Via certi?ed mail, return receipt requested and Via electronic mail on February 3, 2012. Bd. Eth. and 3. The Notice of Hearing directed respondent to appear before a duly authorized panel of the Board on February 17, 2012, for a hearing on the allegations contained in the Charges. The panel consisted of Ann Doremus, Dennis G. O?Neill, MD. and Attorney Edward Osswalt. Bd. 4. Respondent ?led Answer to the Charges on February 16, 2012. Bd. Exh. 2. The panel held an administrative hearing to adjudicate respondent?s case on February 17 and March 2, 2012. Attorney Richard S. Cramer represented respondent, and Attorney David Tilles represented the Department. The panel conducted the hearing in accordance with Chapter 54 of the Statutes and 19a-9a?1 et seq. of the Regulations of Connecticut State Agencies (?the Regulations?). Both parties had the opportunity to present evidence, conduct cross?examination, and provide argument on all issues. All panel members involved in this decision received cOpies of the entire record and attest that they have either heard the case or read the record in its entirety. The Board reviewed the panel?s proposed final decision in accordance with the provisions of 4?179 of the Statutes. The Board considered whether respondent poses a threat, in the practice of medicine, to the health and safety of any person. This decision is based entirely on the record and the specialized professional knowledge of the Board in evaluating the evidence. To the extent the ?ndings of fact actually represent conclusions of law, they should be so considered, and vice versa. SAS Inst, Inc, v. Computer Systems, Inc, 605 .Supp. 816 (Md. Tenn. 1985). Allegations 1. In paragraph 1 of the Charges, the Department alleges that respondent is the holder of Connecticut license number 039145 to practice medicine and surgery. 2. In paragraph 2 of the Charges, the Department alleges that on or about October 22, 2011, reSpondent sexually assaulted a female patient at his medical practice located in East Hartford, Connecticut. 3. In paragraph 3 of the Charges, the Department alleges that subsequent to said sexual assault, respondent inappropriately attempted to contact the patient to dissuade her from discussing the incident with law enforcement of?cials. 4. In paragraph 4 of the Charges, the Department alleges that the above-described facts constitutegrounds. for disciplinary. action pursuant to the General Statutes of Connecticut, 20-13c, including, but not limited to, Findings of Fact 1. Respondent is the holder of Connecticut license number 039145 to practice medicine and surgery. Tr. 2/17/12about October 22, 2011, respondent sexually assaulted a female patient at his medical practice located in East Hartford, Connecticut. Tr. 2/17/12, pp. 38-44(sealed); Tr. 3/2/12, pp. 18, 19, 26?69; Dept. Exh. 1 (sealed); Dept. Exh. 2 (sealed); Dept. Exhs. 4, 5, 6. 3. Patient AD. is a reliable and credible witness. 10October 21, 2011, AD. called respondent?s of?ce in an attempt to obtain her medical records. Transcript 2/ 17/2012, p. 37. Respondent called her in the early evening and asked her to come to his of?ce at 2:00 pm the next day, October 22, 2012. E. at 38. When AD. arrived the next day at approximately 2:00 pm, only the respondent was present in the of?ce. E. at 39. Despite the fact that AD. told respondent that she was there to obtain her medical records, respondent indicated that he was going to determine what level of pain AD. was in at the time of the visit. Li. at 40. Respondent asked the patient to lie down, and he put ?really bad pressure? on chest to the point that she ?couldn?t breathe.? 1d. at 42. Respondent used his other hand to unbutton pants, undue the zipper and pull her pants down. E. Respondent put his penis inside vagina and he ejaculated next to her vagina on her thigh. Id. at 43, 97 and 115. After this sexual assault, AD. pulled up her pants and left out the back door of the of?ce and got on a bus. 1d. at 44. During the incident, respondent drooled on the patient. 1d. at 5 7. When AD. got home, she wanted to take a shower, but her brother told her not to take a shower. Id. at 45. AD. went to the hOSpital. 1d. at 46. On October 22, 2011, the same day as the incident, AD. went to Hartford Hospital and reported that she was sexually assaulted by respondent. Dept. ExhOctober 22, 2011, while at Hartford Hospital, AD. consented to a Sexual Assault Examination and Evidence Collection. l_d. at page 66. Laboratory specimens were collected from cervix, and the Forensic Evidence CT100 Kit was completed by Lana Jensen, RN. l_d. at page 70. The Evidence Kit and victim?s clothes were given to the East Hartford Police Department. by Lana Jensen, RN. Joshua Litwin is a Sergeant in the East Hartford Police Department. Transcript 3/2/2012, p. 81. On October 22, 2011, a sexual assault was reported to the East Hartford Police Department. Dept. Exh. 6, p. 1. Sergeant Litwin was the lead investigator in this matter involving respondent. 1d. at 82. Joshua Litwin is a reliable and credible witness. On November 8, 2011, Sergeant Litwin submitted two af?davits and applications for Search and Seizure Warrants to Manchester Superior court. One of these warrants was for a buccal swab from the respondent. The warrants were reviewed and signed by Judge Taylor. Litwin Af?davit, paragraph 12, Dept. EX. 6. 16November 10, 2011, members of the East Hartford Police Criminal Investigations Division executed these warrants. Litwin escorted the respondent to Litwin?s unmarked police cruiser and then transported the respondent to the East Hartford Police headquarters for the execution of this, ?buccal swab? warrant. 1d. Detective Stoldt administered and completed the buccal swab from the respondent. 1d. at paragraph 13; Tr. 3/2/12, p. 88 (Litwin). On November 15, 2011, Detective Zulick transported the known DNA sample from the respondent to the State Forensic Laboratory, located in Meriden, Connecticut. Department Ex. 6. at paragraph 14. On December 14, 201 l, Litwin received a report from the State Forensic laboratory that documented the results of their examination of the Sexual Assault Evidence Collection Kit performed by Hartford HOSpital on the victim. Examination results identified positive results for the presence of amylase, a component of saliva, on a portion of the swabs of dried secretions from the victim?s right breast. E. at paragraph 20. On December 23, 2011, Litwin received examination results from the State Forensic Laboratory that identi?ed the respondent as a contributor to the DNA pro?le of these dried secretions. Id. at paragraph 20. On January 30, 2012, the East Hartford Police received examination results from the State Forensic Laboratory of their DNA identi?cation and comparison of genital swabs from the victim, and of the pants the victim wore to and from Christus Medical Group, East Hartford, Connecticut, on the date of this incident. Among the analysis and results, the respondent was identified as being a source of the DNA pro?le from the genital swabs, sperm?rich fraction. at paragraph 21. The results also demonstrate the cutting from the hind crotch of jeans, sperm?rich fraction, is a mixture, and the respondent is included as a contributor to that DNA pro?le. E. at paragraph 21. Steven Bryant is a Forensic Science Examiner for the Connecticut Forensic Science Laboratory. Dept. Exh. 3. Steven Bryant was a reliable and credible witness. Mr. Bryant tested all of the DNA samples in this case except for the known samples which are done through a different process. Transcript 3/2/2012 p. 9. A known sample is one that is taken from a known individual and those samples are used as a reference sample to compare to a sample collected from a crime scene. id. at 10. DNA is unique to each person with the exception of identical twins. at 20. Mr. Bryant credibly testi?ed that based upon the scienti?c tests performed in his laboratory that it was more than a ninety?nine percent probability that sperm found 4 on body matched the pro?le of the respondent. 1d. at 69. The overwhelming scienti?c evidence supported the conclusion that the respondent?s sperm and/or other DNA was on body. lg. at 39?69 and Dept. Exh. 4. 27. There is insufficient evidence to establish that subsequent to the sexual assault, respondent inappropriately attempted to contact the patient to dissuade her from discussing the incident with law enforcement of?cials. Tr. 2/ 17/ 12, pp. 4860, 69, 70 (sealed); Tr. 2/17/12, pp. 128-131,134-136,138-141. 28. Respondent poses a threat in the practice of medicine to the health and safety of the public. Tr. 2/17/12, pp. 38?44(sealed); Tr. 3/2/12, pp. 18, 19, 26-69; Dept. Exh. 1 (sealed); Dept. Exh. 2 (sealed); Dept. Exhs. 4, 5, 6. Discussion and Conclusions of Law The Department bears the burden of proof by a preponderance of the evidence in this matter. Herman MacLean V. Huddleston, 459 U.S. 375, 389?90 (1983), Steadman v. Securities and Exchange Commission, 450 U.S. 91, 101 S. Ct. 999, reh?g denied, 451 U.S. 933 (1981); Goldstar Medical Services, Inc. V. Department of Social Services, 288 Conn. 790, 821? 25 (2008), Swiller v. Commissioner of Public Health, CV 950705601, Superior Court, .D. Hartford/New Britain at Hartford, Memorandum filed October 10, 1995.1 The Board relied on the training and experience of its members in making its ?ndings of fact and conclusions of law. Pet V. Department of Health Services, 228 Conn. 651. 667 (1994). With regard to the allegation in paragraph 1 of the Charges, respondent admits that he is the holder of Connecticut license number 039145 to practice medicine and surgery. Tr. 2/ 17/ 12, pp. 4-5. Therefore, the Department?s burden of proof was met. With regard to the allegation in paragraph 2 of-the Charges, the Department sustained its burden of proof that on or about October 22, 2011, respondent sexually assaulted a female patient at his medical practice located in East Hartford, Connecticut. Section 20?13c of the Statutes provides, in pertinent part, that: The Board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician or take any other action in accordance with section 19a?17, for any 1 The Board is aware that the Connecticut Supreme Court is reviewing the issue of Whether the standard of proof in cases before the Board involving physicians should be the preponderance of evidence standard or the clear and convincing standard (Charles Rav Jones, M.D., v. Connecticut Medical Examining Board, SC. 18843). In this particular case involving respondent, the Board finds that even if the standard of proof was clear and convincing evidence, the Department met its burden with respect to the allegations in paragraphs 1, 2 and 4 of the Charges. 5 of the following reasons: . . . . (4) illegal, incompetent, or negligent conduct in the practice of medicine;. . . ReSpondent denies sexually assaulting a female patient at his medical practice on October 22, 2011. He argues that the patient is motivated by potential ?nancial gain and that her mental status may have impacted her state of mind at the time of the incident on October 22, 2011. Tr. 2/17/12, pp. 14, 132-134; Tr. 2/17/12, pp. 54-56, 59, 62?68, 94?96 (sealed). The patient in this matter testi?ed that on October 22, 2011, she went to respondent?s of?ce to pick up her medical records and described how respondent sexually assaulted her during her visit. Tr. 2/ 17/12, pp. 39-44 (sealed); Dept. Exh. 1, See also, Findings of Fact 4?7. Although there were some minor inconsistencies in the patient?s testimony, the Board ?nds that the essential components of her testimony regarding the sexual assault, in collaboration with the DNA evidence, were reliable and credible. Tr. 2/1 7/ 12, pp. 39?44 (sealed); Dept. Exh. 2 (sealed), Dept. Exh 6. The Department?s witness, Steven Bryant, Forensic Science Examiner, was reliable and credible. He testi?ed that respondent is included as a contributor to the sperm sample found on and around the patient?s body, and that the expected frequency of individuals who could be a contributor to these DNA pro?les is less than one in seven billion in the African American, Caucasian and Hispanic populations. Tr., p. 3/2/12, pp. 32?69; Dept. Exhs. 3, 4, 6. Mr. Bryant credibly testi?ed that based upon the scienti?c tests performed in his laboratory that it was more than a ninety-nine percent probability that sperm found on the body matched the pro?le of Dr. Njoku. Finding of Fact #26. The patient?s father?s testimony also corroborates the patient?s testimony, and though it is not central to the Board?s ?ndings, his testimony is found to be reliable and credible. Tr. 2/1 7/ 12, pp. 132?136. The Board that the evidence establishes that respondent engaged in illegal conduct in the practice of medicine in violation of 20~130(4) of the Statutes when he sexually assaulted a female patient at his practice on October 22, 2011. Moreover, as discussed above, the Board ?nds that although the current standard of proof is a preponderance of the evidence, the evidence in this case was so overwhelming that it would support ?ndings under a clear and convincing standard of proof. With regard to the allegation in paragraph 3 of the Charges, the Department failed to meet its burden of proof that subsequent to the sexual assault, respondent inapprOpriately attempted to contact the patient to dissuade her from discussing the incident with law enforcement of?cials. The patient testi?ed that on the same day immediately following the incident on October 22, 2011, respondent attempted to talk to her while she was at the bus stop and called her while she was on the bus. Tr. 2/ 17/ 12, pp. 43, 47, 48, 69, 118, 119 (sealed). The patient?s father also testi?ed that a few days after the incident respondent attempted to talk to him. Tr. 2/17/12, pp. 128-131, 134-136, 138?141. The Board ?nds that the testimony ofthe patient and her father is credible, but the evidence fails to establish that respondent?s attempts to contact the patient directly or through her father were speci?cally designed to dissuade her from discussing the incident with law enforcement of?cials. With regard to the allegation in paragraph 4 of the Charges, the Board ?nds that respondent?s conduct at his practice on October 22, 2011, constitutes grounds for disciplinary action. Respondent?s conduct as described above is found by the Board to pose a threat, in the practice of medicine, to the health and safety the public. The Board is not taking any disciplinary action against respondent?s license with respect to the Department?s allegation that subsequent to said sexual assault, respondent inappropriately attempted to contact the patient to dissuade her from discussing the incident with law enforcement of?cials as that allegation was not proven by the Department. Based upon the record in this case, the above ?ndings of fact and the conclusions of law, and pursuant to the authority vested in it by 19a?17 and 20-13c of the Statutes, the Board ?nds that the misconduct alleged and proven warrants the disciplinary action imposed by this Order. The Board hereby orders the following with regard the Connecticut physician and surgeon license number 039145 held by Edwin Njoku, MD: 1. Respondent? license is hereby REVOKED. 2. Respondent?s license is hereby assessed a civil penalty of $25,000.00 (twenty??ve thousand dollars). 3. ReSpondent shall pay the civil penalty of $25,000.00 by certi?ed or cashier?s check payable to ?Treasurer, State Connecticut.? The check shall reference the Petition Number on the face of the check, and shall be payable within 30 (thirty) days of the effective date of this Memorandum of Decision. 7 All correspondence related to this Memorandum of Decision and payment of the civil penalty must be mailed to: Bonnie Pinkerton, Nurse Consultant Department of Public Health Division of Health Systems Regulations 410 Capitol Avenue, P.O. Box 340308 Hartford, CT 06134-0308 The Board reserves the right to take additional disciplinary action pursuant to 19a? 1 7 and 20?130 of the Statutes should respondent fail to comply with this Order. This Memorandum of Decision is effective upon signature of the Board. Connecticut Medical Examining Board June 2012 By: Me C. Doremus, Chairperson CERTIFICATION I hereby certify that, pursuant to Connect'cut General Statutes 4480(0), a copy of the foregoing Memorandum of Decision was sent this (520 day of We.? 2012, by email and ?rst class mail to: Richard Brown, Esq. Certi?ed Mail 9236-6420?2839 Brown Paindiris Scott, LLP 100 Pearl Street Hartford, CT 06103 and Via email to: Matthew Antonetti, Principal Attorney Legal Of?ce Department of Public Health 410 Capitol Avenue, MS Hartford, CT 06134?0308 drninistrative Hearings Specialist/Board Liaison Department of Public Health Public Health Hearing Of?ce