Dr. Gary J. Lustgarten is a board certified neurosurgeon
licensed to practice medicine in Florida. He also has a license topractice medicine in North Carolina, though his North Carolina
license has been inactive since 1998. On 25 April 2002, the North
Carolina Medical Board filed a document charging Dr. Lustgarten
with engaging in unprofessional conduct and alleging that he was
subject to discipline pursuant to section 90-14(a)(6) of the
The charges against Dr. Lustgarten arose from his testimony
for the plaintiffs in a medical malpractice case, Hardin v.
Carolina Neurological Services, et al. The Hardin plaintiffs
alleged that two neurosurgeons, Drs. Victor J. Keranen and Bruce P.
Jaufmann, provided negligent treatment resulting in the death of a
shunt-dependent patient with hydrocephalus, or water on the
brain, the condition that occurs when there is an enlargement of
the ventricles of the brain.
Dr. Keranen had performed a surgical shunt revision on the
patient, after which the patient was transferred to a recovery
room. Shortly thereafter, the patient began to experience
headaches and restlessness, and he eventually suffered
cardiopulmonary arrest. As the patient's heath declined, Dr.
Jaufmann was called in to treat him. Dr. Jaufmann checked the
shunt and was unable to obtain a flow of cerebral spinal fluid. He
therefore performed a surgical removal of the catheter inserted
earlier by Dr. Keranen, and inserted a new catheter. According to
a notation made by Dr. Jaufmann, the patient's cerebral fluid was
not under increased pressure at the time this procedure was
performed. Regrettably, despite Dr. Jaufmann's efforts, thepatient died.
In pretrial deposition testimony given in the Hardin case, Dr.
Lustgarten stated his opinion that the applicable standard of care
required that (1) the shunt-dependent patient be transferred to
intensive care or a step-down unit after surgery; (2) Drs.
Keranen and Jaufmann have an oral exchange of information
concerning the patient before his care was turned over to Dr.
Jaufmann; (3) the treating physician place a note in the patient's
file indicating that the physician should be called if some
untoward event occurred, and (4) the responsible physician place a
telephone call to ask about the status of the patient before the
physician went to bed. Dr. Lustgarten offered an opinion that
these standards of care were not observed.
While being cross-examined by counsel for Drs. Keranen and
Jaufmann, Dr. Lustgarten also stated that he had difficulty
believing Dr. Jaufmann's notation that the patient's intracranial
pressure was not elevated at the time that the second catheter was
inserted. In support of his skepticism concerning the notation,
Dr. Lustgarten provided the following reasons for his conclusion
that the pressure had to be elevated: (1) after the initial
surgery, the patient experienced headaches that did not respond to
pain medication, and the patient had not experienced such headaches
in the past; (2) the patient moved from an alert, oriented, and
cooperative state to a more restless and agitated state; (3) a CAT
scan, taken a few hours after Dr. Keranen operated, revealed that
the ventricles in the patient's brain were practically the samesize as they were in a CAT scan taken prior to that surgery; (4)
when Dr. Jaufmann disconnected the catheter inserted by Dr.
Keranen, he found that there was no ventricular drainage.
After articulating these observations, Dr. Lustgarten stated,
I have difficulty believing . . . the comment
that Dr. Jaufmann made at the time . . . he
passed the ventricular catheter . . . that the
[spinal fluid] did not appear to be under
abnormal or unusual pressure . . . . I
believe that the [spinal fluid] was under
pressure. And that nobody else who witnessed
this recalls whether spinal fluid spurted out
or not. Basically the only one who commented
on that was Dr. Jaufmann.
Well, it is difficult for me to believe
that the spinal fluid was not under pressure.
I believe it was under pressure and that all
the evidence before and after, including the
CAT-scan that was done within 30 to 40 minutes
after, was consistent with increased
So I believe that it was under pressure.
The following colloquy then ensued:
[DEFENSE ATTORNEY]: Okay. Are you saying
that Dr. Jaufmann was lying at the time that
he tapped the shunt and found no pressure?
. . . .
[DR. LUSTGARTEN]: I'll say that. You
don't have to say that. I've met him. I'm
looking at him and I'm not going to call him a
liar. But on the other hand, he is covering
for a partner and he runs into a situation
where he knows somebody screwed up here and
that he should have been called earlier by the
nurses. And as indicated before, he is
running into a meat cleaver. He is the
recipient of a disaster that he didn't ask
for, and which was not his fault. And with
all due respect to older partners and the
hospital, I think he tried to temporize his
findings and write a note that was benevolent.
[DEFENSE ATTORNEY]: So in other words,
you are saying you believe Dr. Jaufmann's
notes in the records which indicate there was
no increased intracranial pressure is [sic] a
[DR. LUSTGARTEN]: Well, he didn't take
the pressure, first of all. That's number
[DEFENSE ATTORNEY]: Correct.
[DR. LUSTGARTEN]: So he can't say what
the pressure was.
[DEFENSE ATTORNEY]: He can say whether it
[DR. LUSTGARTEN]: I don't know if while
he was putting in the patient's head was
elevated or whether it was flat. But
generally when a neurosurgeon puts a catheter
into a ventricle he can recognize whether the
fluid is increased. And a neurosurgeon who
does that should accurately report what he
finds. Dr. Jaufmann wrote a note that the
pressure wasn't elevated. I have a great deal
of difficulty believing that based upon the
symptomatology of the patient that was
manifested, knowing that it was an obstructed
system, knowing that the CAT-scan done
afterwards shows the ventricles to be just as
large as they were before with other evidence
of increased intracranial pressure, and the
scan done the next day after that the
ventricles were almost down to normal size.
So yes, I have difficulty believing the
pressure was normal.
After pursuing another line of the questioning, the defense
attorney revisited the issue of whether Dr. Lustgarten believed
that Dr. Jaufmann had been untruthful:
[DEFENSE ATTORNEY]: You are accusing, are
you not, Dr. Jaufmann of falsifying medical
[DR. LUSTGARTEN]: I think a jury is
going to have to interpret what the testimonyis.
[DEFENSE ATTORNEY]: I'm asking.
[DR. LUSTGARTEN]: Dr. Jaufmann has his
story. I can understand his story and why he
may have said that. And as opposed to
becoming a screaming maniac and kicking his
feet and slamming things against the wall and
yelling and screaming at nurses, he was trying
to do the best for all people concerned,
including the hospital, the nurses, his
partner in treating this man, and I don't
believe for an instant that this ventricular
pressure was normal, no.
[DEFENSE ATTORNEY]: Then the answer--
[DR. LUSTGARTEN]: I think Dr. Jaufmann
has his own agenda for saying that. He will
have to answer to that and then the jury is
going to have to believe who they believe.
[DEFENSE ATTORNEY]: Okay. The answer to
my question is: Yes, you believe Dr.
Jaufmann's notes was [sic] a falsification of
the medical records, the note which indicates
that there was no increased pressure?
[DR. LUSTGARTEN]: I'm saying I believe
there was increased intracranial pressure, and
the facts fit that.
This deposition testimony was discussed at the trial of the Hardin
case during Dr. Lustgarten's cross-examination by defense
Several years after Dr. Lustgarten testified in the Hardin
case, the North Carolina Medical Board charged him with committing
several specific instances of unprofessional conduct during his
testimony in the Hardin case. Five of the charges of misconduct
were premised upon allegations that Dr. Lustgarten had
misrepresented the applicable standard of care for Drs. Keranen andJaufmann and had improperly testified that these treating
physicians failed to have a meaningful exchange of information
about the patient. Another charge of misconduct was levied based
upon an allegation that Dr. Lustgarten testified in the absence of
any corroborating evidence and in spite of evidence to the
contrary, that a physician [Dr. Jaufmann] falsified medical records
to protect his associate.
Following a hearing, the Board entered a 22 August 2002 order
in which it found that Dr. Lustgarten had misrepresented the
standards of care applicable in the Hardin case, had wrongfully
stated that Drs. Keranen and Jaufmann had failed to have a
meaningful exchange of information, and had testified that Dr.
Jaufmann falsified a medical record with absolutely no direct
evidence to support this extremely serious allegation. The Board
concluded that, with respect to each finding, Dr. Lustgarten had
engaged in unprofessional conduct pursuant to section 90-14(a)(6)
of the General Statutes, and the Board revoked his license to
practice medicine in North Carolina.
Dr. Lustgarten appealed the Board's disciplinary order to the
Wake County Superior Court. Following a hearing, the superior
court entered an order which affirmed in part and reversed in part
the Board's disciplinary order. Specifically, the court ruled that
Dr. Lustgarten could not be disciplined for his testimony
concerning the applicable standards of care or for offering his
opinion that Drs. Keranen and Jaufmann did not have a meaningful
exchange of information. However, the court upheld the Board'sconclusion that Dr. Lustgarten had committed unprofessional conduct
when he repeatedly testified without an evidentiary or good faith
basis that Dr. Jaufmann had falsified medical records. The court
remanded the case to the Board for a determination as to the
appropriate discipline for testifying that Dr. Jaufmann falsified
On remand, the Board held a hearing and entered a 30 March
2004 order suspending Dr. Lustgarten's North Carolina medical
license for a period of one year. Dr. Lustgarten again appealed to
the Wake County Superior Court, which conducted a hearing and
affirmed the Board's 30 March 2004 disciplinary order.
Dr. Lustgarten now appeals to this Court. In his primary
argument on appeal, Dr. Lustgarten contends that the superior court
should not have affirmed the Board's second order of discipline
because there was no substantial record evidence that Dr.
Lustgarten's testimony accused Dr. Jaufmann of falsifying a medical
record without a good faith evidentiary basis.
The North Carolina Medical Board is statutorily imbued with
the authority to regulate the practice of medicine and surgery for
the benefit and protection of the people of North Carolina. N.C.
Gen. Stat. § 90-2 (2005). The Board has the power to deny, annul,
suspend, or revoke [the] license of a license-holder found by the
Board to have committed
[u]nprofessional conduct, including, but not
limited to, departure from, or the failure to
conform to, the standards of acceptable andprevailing medical practice, or the ethics of
the medical profession, irrespective of
whether or not a patient is injured thereby,
or the committing of any act contrary to
honesty, justice, or good morals, whether the
same is committed in the course of the
physician's practice or otherwise, and whether
committed within or without North Carolina.
N.C. Gen. Stat. § 90-14(a)(6) (2005). As such, the Board is an
occupational licensing agency, which is governed by Article 3A of
the North Carolina Administrative Procedure Act. See
Stat. § 150B-2(4b) (2005) ('Occupational licensing agency' means
any board . . . which is established for the primary purpose of
regulating the entry of persons into, and/or the conduct of persons
within a particular profession, . . . and which is authorized to
issue and revoke licenses.);
N.C. Gen. Stat. §
(2005) (providing that Article 3A applies to occupational licensing
agencies). Therefore, a person seeking judicial review of a
decision of the Board must file a petition in the Superior Court
of Wake County. . . . N.C. Gen. Stat. § 150B-45 (2005).
The review by a superior court of [the Board's] decisions
. . . [is] conducted by the court without a jury." N.C. Gen. Stat.
§ 150B-50 (2005).
[T]he court may affirm the decision . . . or
remand the case . . . for further proceedings.
It may also reverse or modify the agency's
decision . . . if the substantial rights of
the petitioner may have been prejudiced
because the agency's findings, inferences,
conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence . . .
in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of
N.C. Gen. Stat. § 150B-51(b) (2005).
As to matters of fact, the superior court must apply the
whole record test and is 'bound by the findings of the [agency]
if they are supported by competent, material, and substantial
evidence in view of the entire record as submitted.' Bashford v.
N.C. Licensing Bd. for General Contractors
, 107 N.C. App. 462, 465,
420 S.E.2d 466, 468 (1992) (citations omitted).
When the [superior] court applies the whole
record test . . . it may not substitute its
judgment for the agency's as between two
conflicting views, even though it could
reasonably have reached a different result had
it reviewed the matter de novo
. Rather, a
court must examine all the record evidence --
that which detracts from the agency's findings
and conclusions as well as that which tends to
support them -- to determine whether there is
substantial evidence to justify the agency's
decision. Substantial evidence is relevant
evidence a reasonable mind might accept as
adequate to support a conclusion.
N.C. Dep't of Env't & Natural Res. v. Carroll
, 358 N.C. 649, 660,
599 S.E.2d 888, 895 (2004) (quoting Watkins v. N.C. State Bd. of
, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) and
N.C. Gen. Stat. § 150B-2(8b) (2003)). However, [i]f it is alleged
that an agency's decision was based on an error of law[,] then a de
review is required. Walker v. N.C. Dept. of Human Resources
,100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990), disc. review
, 328 N.C. 98, 402 S.E.2d 430 (1991).
A party to a review proceeding in a superior court may appeal
to the appellate division from the final judgment of the superior
court. . . . The scope of review to be applied by the appellate
court . . . is the same as it is for other civil cases." N.C. Gen.
Stat. § 150B-52 (2005). Thus, this Court examines the trial
court's order for errors of law; this 'twofold task' involves:
'(1) determining whether the [superior] court exercised the
appropriate scope of review and, if appropriate, (2) deciding
whether the court did so properly.' Eury v. N.C. Employment
, 115 N.C. App. 590, 597, 446 S.E.2d 383, 387-88
(citation omitted), appeal dismissed and disc. review denied
N.C. 309, 451 S.E.2d 635 (1994).
In the instant case, Dr. Lustgarten challenges the following
determination made by the Board:
Dr. Lustgarten testified under oath that Dr.
Jaufmann, in order to somehow protect Dr.
Keran[e]n, falsified the procedure note, which
indicated that [the shunt-dependent patient's]
CSF did not appear to be under increased
pressure. Dr. Lustgarten had absolutely no
direct evidence to support this extremely
The superior court ruled that this finding was supported by
substantial evidence in the record. After careful review of the
record, we conclude that the superior court erroneously affirmed
the Board's determination, as the substantial record evidence does
not permit an inference that Dr. Lustgarten made an entirelyunfounded statement concerning Dr. Jaufmann's notes.
The evidence before the Board tended to show that, at the time
of his deposition in the Hardin
case, Dr. Lustgarten was of the
opinion that the shunt-dependent patient's intracranial pressure
had to be elevated. Accordingly, he stated under oath that he had
difficulty believing Dr. Jaufmann's contrary notation. Dr.
Lustgarten's skepticism was based upon CAT-scan results, mood
changes in the patient, pain-medication-resistant headaches being
experienced by the patient, and the lack of ventricular flow, each
of which indicated to Dr. Lustgarten that the patient's
intracranial pressure was necessarily elevated. These observations
provided a good faith evidentiary basis for Dr. Lustgarten's
opinion that Dr. Jaufmann's notation was not credible.
Further, the record is clear that Dr. Lustgarten was content
to state no more than his opinion that Dr. Jaufmann's note was
faulty. However, a defense attorney representing Dr. Jaufmann in
case repeatedly asked Dr. Lustgarten whether Dr.
Jaufmann was lying. Dr. Lustgarten did not wish to answer this
question, but he eventually stated that he was not going to call
[Dr. Jaufmann] a liar but that, in his opinion, Dr. Jaufmann had
tried to temporize his findings and write a note that was
benevolent. Further, when the defense attorney persisted by
asking whether Dr. Lustgarten was accusing . . . Dr. Jaufmann of
falsifying medical records, Dr. Lustgarten responded that the
issue would have to be decided by a jury and again indicated that
he had difficulty believing Dr. Jaufmann's note. In explaining these statements, Dr. Lustgarten continually
noted that, in his opinion, the patient's pressure had to be
elevated and the circumstances in which Dr. Jaufmann found himself
were quite difficult:
[Dr. Jaufmann was] covering for a partner and
he [ran] into a situation where he kn[ew]
somebody screwed up . . . and that he should
have been called earlier by the nurses. And
as indicated before, he [was] running into a
meat cleaver. He [was] the recipient of a
disaster that he didn't ask for, and which was
not his fault.
Dr. Lustgarten also noted that nobody else who witnessed [Dr.
Jaufmann examining the shunt] recalls whether spinal fluid spurted
out or not. Basically the only one who commented on that was Dr.
Jaufmann. Thus, Dr. Lustgarten explained the basis for his
conclusion that Dr. Jaufmann had temporize[d] his findings by
writing a note that was benevolent. Moreover, at no point did
Dr. Lustgarten actually state that Dr. Jaufmann had falsified a
medical record or use the terms liar or lying to describe Dr.
Jaufmann or his conduct. Rather, these terms were introduced by
defense attorneys representing Dr. Jaufmann.
As the foregoing discussion demonstrates, Dr. Lustgarten did
not testify that Dr. Jaufmann had tried to temporize his findings
and write a note that was benevolent until pressed to do so on
cross-examination, and the substantial evidence of record
demonstrates that Dr. Lustgarten had a good faith basis for making
the statement for which the Medical Board seeks to impose
discipline. Further, no other evidence in the record supports theBoard's decision. Therefore, the Board erred by finding that Dr.
Lustgarten levied a groundless accusation, and the superior court
erroneously applied the whole record test to affirm the Board's
The superior court's order affirming the Board's discipline is
reversed. Further, because proper application of the whole record
test does not permit a Board finding that Dr. Lustgarten made a bad
faith accusation concerning the falsification of a medical record,
on remand the superior court shall order that the disciplinary
proceedings against Dr. Lustgarten be dismissed.
Reversed and remanded.
Judges TYSON and ELMORE concur.
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