FI LED
January

STATE OF NEW JERSEY
DEPARTMENT OF LAW & PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MEDICAL EXAMINERS

12 , 2011

NEW JERSEY STATE BOARD
OF MEDICAL EXAMINERS

OR

IN THE MATTER OF SUSPENSION
REVOCATION OF THE LICENSE OF

Administrative Action

DIONE WILLIAMS
, M.D.
LICENSE NO . 25MA04572300

ORDER VACATING
OCTOBER 11, 2012
CONSENT ORDER

TO PRACTICE MEDICINE AND SURGERY
IN THE STATE OF NEW JERSEY

This matter was

opened to the New Jersey State Board of

Medical Examiners ("the Board") upon the filing of a Motion in Aid
of Litigant's Rights by the Attorney General of New Jersey, Deputy
Attorney General David M. Puteska appearing, on November 28, 2012.
The Attorney General sought to vacate a consent order entered on
October 11, 2012 in resolution of a matter that came to the Board's
attention when a malpractice settlement was reported involving
respondent Dione Williams, M.D. following the death of a nineteenyear-old patient, A.Q., after a tonsillectomy respondent performed
in September of 2009.
The Attorney General maintained that newly discovered evidence
revealed

respondent

had

not

testified

Medical Practitioner Review Panel

truthfully

before

("the Panel")

the

Board' s

on February 17,

2012. Inasmuch as the October 11, 2012 consent order was premised
to

a

large

extent

on

the

Board's

reliance

on

respondent's

sworn

testimony, and as the misrepresentations alleged are significant,

CERTIFIED TRUE COPY

 and as the Board should be able to rely on the truthfulness of a
licensee's sworn testimony in a Board proceeding, the State urged
that the consent order be set aside and the matter re-opened to
permit

further

investigation

respondent's

misconduct

commensurate

with

the

to

and
facts

ascertain

resolve

the

this

full

matter

extent

in

a

and adequately protective

of

manner
of

the

public.
The Board having considered the State's submissions and those
of

respondent's

argument

on

attorney,

January

9,

Michael
2012,

J.

Keating,

the Board

Esq.,

finds

that

and

oral

respondent

engaged in material misrepresentation when offering sworn testimony
before the Panel, and grants the State's motion. In providing this
relief, the Board recognizes that the vacation of a consent order
is extraordinary.

However,

respondent's misrepresentations were

significant, going to the heart of the Board's statutorily imposed
mission of protecting the public, since it concerned the extent of
the danger represented to the public by respondent's

conduct.

Consequently, the misrepresentation affected both the breadth of
the

Board's

investigation

of

that

conduct

and

the

terms

of

settlement reached.
The

background

of

this

matter

is

as

follows:

in

April

the Board received notice of a $1,000,000 malpractice payment on
behalf of Dr. Williams following the death of patient A.Q., a 19year-old upon whom Dr. Williams performed a tonsillectomy on

Page 2 of

12

of

2011,

 September

1,

2009.

otolaryngologist.

Dr.

Williams

Following

is

respondent's

a

Board

testimony

certified
before

the

Panel, and a review of the matter, a consent agreement was reached
which

included

a

reprimand,

a

$5,000.00

civil

penalty,

and

imposition of costs of $768.41 and attorney's fees of $6,475.00. An
eight month period of probation was also imposed, and Dr. Williams
was required to complete courses in record keeping, communications,
sleep apnea,

the

evaluation and treatment

of

asthma,

and the

administration of post-operative analgesics.
Much of the information on which the consent order was based
was derived from respondent's sworn testimony on February 17, 2012
before the Panel. The Attorney General alleged in its submissions
and oral

argument that

respondent

had been untruthful

in her

testimony before the Panel in essentially three respects:
1)

Respondent

testified

that

after

a

Food

and

Administration Advisory issued a warning in 2004 about the use of
Fentanyl post-surgery,' she may have used a Fentanyl patch in the
post-operative setting

once

(and then only for cancer patients)

She testified:
I had some experience using Fentanyl patches before 2004
when the physician advisory came out that this was not

'On July 15, 2005, the Food and Drug Administration (FDA)
issued a Public Health Advisory warning against the use of
Fentanyl patches in treating post-operative pain.
(Rb3) In her
testimony before the Board, Dr. Williams, apparently in error,
referred to the Advisory as issuing in 2004.

Page 3 of

12

Drug

 always
appropriate
in a post-operative
setting.
Then
after 2004,
I used it maybe once. And then I
really
stopped using it really for post-operative care and kind
of reserved
it for my patients
who had cancer
and who had
some
long-term
opiate
use.
[Pb42,
Exhibit
2,
Panel
transcript at p.13, 1.12 to 20.)

Newly provided deposition testimony from nurse Joan Jones,
R.N., however, indicates that respondent "typically" used Fentanyl
post-surgery

following

microlaryngoscopies

routine

(Pb7)

Moreover,

tonsillectomies
in

a

reply

and

brief

dated

December 28, 2012, the State provided documentation that respondent
utilized Fentanyl patches for post-surgery pain relief 19 times in
the

years

2007-2009

alone,

and

ten

of

those

cases

involved

tonsillectomies. This was revealed from medical records that were
subpoenaed on December 12, 2012 from East Orange General, and did
not include records prior to 2007, which had been archived and were
not immediately available.
2) Respondent testified before the Panel that she discharged
A.Q.

from East Orange General Hospital

(rather than keeping her

there overnight) partly because A.Q.'s mother3 preferred to have

2

Pb = Petitioner's
Rb = Respondent's
Prb = Petitioner's

brief dated November 28,
2012.
brief dated December 10,
2012
reply brief dated December 28, 2012

A.Q.'s mother is named Nancy Williams. To avoid confusion,
she is referred to as "A.Q.'s mother."

Page 4 of

12

 A.Q. recover at home. Newly supplied deposition testimony by A.Q.'s
mother indicated that A.Q.'s mother had urged Dr. Williams to let
A.Q. stay overnight at the hospital, and Dr. Williams dismissed her
concerns.

(Pb6) .

There were also discrepancies in respondent's

account and that of A.Q.'s mother as to what happened when A.Q.'s
mother drove by respondent's medical office on the way home from
the hospital and unsuccessfully sought to have respondent examine
A.Q.

(Pb8-9).
3)

There was conflicting sworn testimony as to when Dr.

Williams first learned of A.Q.'s allergy to morphine. Dr. Williams
claimed that she learned of it on the day of surgery, September 1,
2009. (Pb3) . A.Q.'s mother, in sworn deposition testimony indicated
that she told respondent about her daughter's allergy months before
the surgery, and because of her concern called respondent's office
frequently in the course of the weeks leading up to the surgery,
but was never called back.

(Pb6).

In response to the Attorney General's motion, as well as in
oral argument before the Board, counsel for respondent contended
that vacation of the settlement agreement, which had been proposed
by the State, accepted by Dr. Williams and approved by the Board,
was unwarranted,
fairness.

(Rb7-8) .

and a violation of principles

of

fundamental

Respondent maintained that setting aside the

terms of such a settlement is inappropriate "absent extraordinary
circumstances such as fraud or duress." (Rb8, citing

Page

5 of

12

Pascarella v.

 Bruck , 190

N.J.

Super . 188,

Respondent

argued that

A.Q.'s mother and Dr.
medical

malpractice

different
is

recollection

unclear

and

, 94

the discrepancies

N.J.

600

cases

[where]

events,"

insufficient

"common in

the

parties

that

nurse

and

basis

(1983).

in testimony between

Williams are minor in nature,

of
an

certif. denied

often

have

Jones's

on which

to

a

testimony
vacate

the

settlement.
Respondent also asserted that the State incorrectly implied
that the Medical Practitioner Review Panel was unaware of the 2005
FDA Public Health Advisory, and a later 2009 Advisory.

(Rb7). The

responsive brief argued that transcripts of the February 27, 2012
proceeding demonstrate that Panel members were aware of the 2009
Advisory and the "black box" warning.

(Rb8).

At oral argument on January 9, 2012, the parties reiterated
earlier arguments presented in their submissions. In addition, DAG
Puteska

pointed out that East Orange General Hospital had not yet

fully complied with the subpoena for records, and medical records
from 2004 through 2006 may provide additional documentation of
respondent's use of the Fentanyl patch for post-surgery pain
relief,

even

though

the

PDR

for

those

years

warned

Duragesic patch was contraindicated for that purpose.
Respondent's attorney, Michael J. Keating, Esq., stressed the
importance of the principle of finality, and the binding nature of

Page 6 of

12

that

the

 settlements, summing up succinctly: "A deal is a deal." He stated
that Dr. Williams was a busy surgeon, and that the 19 instances in
which she utilized the Fentanyl patch were not indicative of a
"routine practice," since they involved only a small

proportion of

her cases. In addition, he cited confusion caused by respondent's
testimony about an FDA Public Health Advisory that (she told the
Panel) issued in 2004. There were actually two FDA advisories, one
that issued in 2005, and one in 2009. Mr. Keating argued that when
Dr. Williams testified that she had used the Fentanyl patch "only
once" since the issuance of the 2004 advisory, she actually meant
since the 2009 advisory.
DISCUSSION
New Jersey's Supreme Court has held that "absent legislative

restriction, administrative agencies have the inherent authority to
reopen and modify previous orders."

Skulski v. Nolan

, 68

N.J.

179,

195 (1975) (citing cases) . This authority may be invoked to "`serve
the

ends

of

essential

justice,'"

but

it

reasonably, and reasonable diligence is required.

must

be

Ibid . (Citations

omitted). Courts have held it "axiomatic. .

. that a party cannot

appeal from a judgment or order to which he consented."
rel. Will of Bass v. DeVink
certif. denied

, 168

consent order may,

N.J.

, 336
292

N.J. Super

(2001)

Bass ex

. 450, 455 (App. Div.),

(citing cases). A party to a

under certain circumstances,

challenge such

orders; however, "[i]f a settlement agreement is achieved through

Page 7 of

exercised

12

 coercion,

fraud,

undue

pressure,

or

unseemly

settlement agreement must be set aside."
Camambio

, 195

N.J.

575, 601 (2008)

In Nolan v. Lee Ho

, 120

conduct. . .the

Brudaae v.

Estate of

(citation omitted).

N.J.

465 (1990), where a trial court

had vacated a settlement agreement on the basis of the plaintiff's
having "`knowingly perpetrated a deception'" in an interrogatory
response, New Jersey's Supreme Court found that the issue as to
whether the trial court erred hinged upon whether the plaintiffs
had

concealed

a material

fact.

120

N. J.

at

470-72.

According

to

the

Court, an equitable fraud analysis was appropriate in the matter,
i.e. ,

whether a material misrepresentation had been made "with

intent

that

it be

relied on,

reliance." Id. at 472

(citing

Whale , 86

N.J.

coupled with

actual

detrimental

Jewish Center of Sussex County v

619, 625 (1981).

Applying the

law to this

matter,

the

crucial

inquiry is

whether Dr. Williams provided false testimony to the Board; whether
the testimony was material to the matter at issue; whether the
State

and the Board reasonably relied on that

testimony;

whether the State acted with reasonable diligence upon receipt of
the new evidence.
The Board finds that misrepresentation is clearly apparent in
connection with Dr. Williams's testimony about her administration
of Fentanyl. The testimony of nurse Joan Jones that Dr. Williams
was the only physician at East Orange General Hospital to utilize

Page

8 of

12

and

 the Fentanyl patch for control of post-surgery pain, and that this
was her "typical" practice, is in clear conflict with respondent's
testimony that
Fentanyl
testimony
testified
medical

she did so

"maybe

once"

since

for use with cancer patients.
does

not

falsely,
records

necessarily

2004,

reserving

While the conflict in
establish

the

Board

finds

dating

from

2007

that
to

that
East

2009

Dr.

Williams

Orange

Hospital

demonstrate

that

respondent used the Duragesic patch for post-surgery pain relief on
at

least

nineteen

(19)

occasions

in

routine

cases.

This

corroborates the nurse's testimony and clearly demonstrates that
respondent's testimony before
explanation

offered

by

the

Panel was not

Respondent's

truthful.

attorney,

certification of respondent or other supports,

The

without

a

that respondent

meant that she had used Fentanyl only once after the issuance of
the

2009

advisory,

does not make

sense in the context of the

testimony as a whole.
Moreover,

the misrepresentation involved is unquestionably

material to the misconduct that had been under investigation at the
time of the Panel inquiry. The extent to which, over a period of
years, respondent engaged in a dangerous practice subject to FDA
Public Health Advisories and a black box warning in the PDR,

is

patently material as to the extent of the misconduct engaged in, an
important

consideration in terms

of the Board's

obligation to

protect the public. The lack of judgment indicated by respondent's

Page 9 of

12

 regular

use

of

the

Fentanyl

patch

post-surgery

implicates

significant public safety concerns.
The two other issues raised by the State - the post-surgery
dealings between Dr. Williams and A.Q.'s mother, and whether Dr.
Williams learned of A.Q.'s allergy to morphine months prior to
surgery, or on the day of surgery

- merely serve to bolster the

material misrepresentation involving use of the Fentanyl patch
after FDA advisories and warnings had issued, and we do not ground
this Order on those conflicting sworn statements independently. We
would not reopen this matter based on these discrepancies alone.
However,

in light

of respondent's misrepresentation as to her

practice of utilizing Fentanyl post-surgery, the issue of whether
respondent testified dishonestly as to these other issues also
warrants further scrutiny.
The

Board

further

finds

that

the

State

has

acted

with

reasonable diligence in this matter. According to the State, the
new evidence was first provided to DAG Puteska on November 19,
2012. The consent order had been entered on October 11, 2012. The
Motion in Aid of Litigant's Rights was filed on November 28, 2012,
less

than

two

weeks

after

the

new

evidence

was

received.

Additionally, the State subpoenaed records on December 12,

2012

which corroborate nurse Joan Jones's sworn testimony.
finds

that

the

State's

actions

following

evidence demonstrate reasonable diligence.

Page 10 of

12

The Board
receipt

of

the

new

 Moreover,
when

it

the Board's reliance upon respondent's testimony

resolved

this

matter

by

consent

order

was

likewise

reasonable. The Board properly expects its licensees to provide
truthful

testimony

when

questioned

about

their

professional

conduct, and should be able to rely upon that testimony. Had the
Board been aware, however, that respondent's use of Fentanyl postsurgery was not an isolated occurrence, but had been repeated on
multiple occasions, the Board would have investigated the matter
more thoroughly, and/or would

have

resolved the matter in a more

protective manner.
The

Board

finds

that

the

State

has

met

its

burden

of

demonstrating by a preponderance of the credible evidence, or even
by the standard of clear and convincing evidence, that respondent's
testimony

before

the

Panel

was

untruthful

as

to

the

extent

to

which

she utilized Fentanyl post-surgery; that the lack of truthfulness
concerned material issues; that the testimony was given with the
intention that it be relied upon, and that the Board did in fact
rely upon it. The Board further finds that the other issues raised
by conflicting sworn statements warrant further investigation.
We therefore vacate the consent order so that the Board may
further investigate this matter. In the event that the Board takes
further action, respondent shall have an opportunity to respond as
contemplated pursuant to the Administrative Procedure Act,
52:14B-1

et

seg .

Page 11 of

12

N.J.S.A.

 Accordingly,
IT

IS ,

ON THIS

12

DAY

OF January

,

2013,

HEREBY ORDERED:

1.

The Consent Order filed on October 11, 2012 is hereby

vacated to permit additional investigation.
2.

The Board shall refund to respondent any payments made

pursuant to the terms of the vacated consent order.
NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS

By:
Gedrt
J(f S Ott,
Board Presi ent

Page 12 of

D.P.M. ,

12

D.O.